ALI BAIG, C.J. Through the instant Civil Revision Petition, the petitioner/judgment debtor has called in question the validity of Judgment/decree passed by the learned Courts below, whereby the learned First Appellate Court/Additional District Judge, Shigar camp at Skardu was pleased to dismiss the civil first appeal filed by the petitioner/judgment debtor by maintaining the judgment/order passed by the learned trial Court/ Civil Judge 1st Class; Skardu.
2. Brief facts of the case giving rise to the filing of the instant civil revision petition are that present respondents/plaintiffs had filed a civil suit against the present petitioner/defendant before the learned trial Court for declaration with possession of suit land mentioned in the head note of the plaint by contending that plaintiffs/respondents are owners of suit land and possession of defendant/petitioner over the suit land is illegal.
3. The learned trial Court entered the civil suit in the relevant register and started proceedings in the matter and issued summons to defendant. Defendant remained absent. At last the learned trial Court issued notice under Order V, Rule 20, C.P.C. which was published in the Daily K-2. After publication of said notice Mr. Yahya advocate appeared before the learned trial Court on behalf of the defendant/present petitioner. Later on he also remained absent and wife of the petitioner appeared before the Court and filed an application before the learned trial Court to keep the case pending adjudication till arrival of her husband from Saudi Arabia. The application of the wife of the present petitioner was not entertained by the learned trial. Court and at last the learned trial Court has proceeded the petitioner/judgment debtor ex parte and his right of filing written statement was strucked off and fixed the case for framing of issues. The learned trial Court has framed issues and recorded ex parte evidence of the plaintiffs/decree holders and after hearing ex parte arguments the learned trial Court has decreed the suit in favour of the plaintiffs/present respondents, vide judgment/decree dated 31.08.2021. The operative part of the judgment/decree is re-produced hereunder:- "Plaintiff No. 1 as husband of late Mst. Hajirah is entitled to received 1/4 i.e. 3 Kanal 5 marlas from suit land and plaintiffs 2 to 5 are entitled to received their respective share measuring 7 Kanal 6 Marla from suit land from defendant. Possession of suit land be delivered to plaintiffs from defendant after distribution. No order as to cost. File after due completion be consigned to record".
The present petitioner/defendant has not filed any appeal or revision before any competent forum.
4. The learned executing Court started proceedings in the execution petition and issued notice to present petitioner/judgment-debtor. During proceedings in the execution petition the present petitioner despite filing objection petition filed an application under section 12(2), C.P.C. for setting aside the ex parte decree passed by the learned trial Court on the ground of fraud and misrepresentation.
5. The application was contested by the present respondents by filing their replication and denied the contention of the petitioner/ judgment debtor. The learned trial Court after hearing arguments of the parties dismissed the petition filed by the present petitioner under section 12(2), C.P.C., vide judgment dated 29.10.2019.
6. Feeling aggrieved and dissatisfied with the said judgment/order passed by the trial Court the present petitioner had preferred an appeal before the learned first appellate Court. The learned first appellate Court after hearing the parties dismissed the appeal and maintained the judgment/order of the learned trial Court, vide judgment dated 12.10.2020.
7. Being dis-satisfied with the judgment/order passed by the learned first appellate Court present petitioner/judgment debtor has filed the instant revision petition before this Court.
8. The learned counsel appearing on behalf of petitioner/judgment debtor contended that the impugned judgment passed by learned courts below are contrary to the law and facts and record of the case, as such the impugned judgment/decree passed by learned courts below are not sustainable in the eyes of law and are liable to be set aside. The learned counsel for the petitioner further contended that the petitioner was residing at Saudi. Arabia in connection with his job in 2000 but the summons was issued on his old permanent address i.e. Hussainabad Skardu. The learned counsel for the petitioner further contended that summons was not properly served on the petitioner and one namely Mr. Yahya Khan Advocate himself has been appearing before the learned trial court showing himself counsel for the petitioner on some dates of hearing, whereas the petitioner had not authorized the above-named counsel to plead/conduct the case on behalf of petitioner. The learned counsel for the petitioner further argued that the about named counsel has mis-represented the petitioner and the learned trial court has wrongly passed ex parte decree against the petitioner in violation of mandatory provisions of C.P.C., therefore, by accepting this revision petition both the impugned judgments of both the Courts below may be set aside.
9. On the other hand learned counsel for the respondents/decree holders controverted the arguments advanced by learned counsel of the petitioner by contending that the petitioner had knowledge regarding institution of suit and his counsel and his wife has been appearing before learned trial court on some dates of hearing and later on they did not appear before the learned trial court, therefore, the learned trial court has rightly passed the ex parte decree against the petitioner/judgment debtor which may be maintained in the interest of justice.
10. I have given my due consideration to the arguments advanced by the learned counsel of the parties and with their able assistance, gone through record of the case.
11. Admittedly, the petitioner was residing at Daman, Saudi Arabia at the time of institution of Suit against him and summons was issued at his old address i.e. Hussainabad Skardu. The report of the process server reveals that the petitioner bad left the country for Saudi Arabia before issuing the summons and filing of suit by the present respondents/decree holders. The service was not properly effected on the petitioner/ judgment debtor in accordance with law.
12. From perusal of record, it further reveals that one Mr. Yahya Khan advocate has been appearing before the learned trial court on behalf of petitioner/judgment debtor on some dates of hearing but he was not properly authorized by the petitioner/judgment debtor to represent him before the learned trial court. Hence, the above named counsel has himself mis-represented the petitioner/judgment debtor before the learned trial court. The petitioner/judgment debtor was residing at Saudi Arabia but the learned trial court has issued ordinary notice mentioning his old address i.e. Hussainabad Skardu and notice under Order V, Rule 20, C.P.C. was published in local newspaper daily K-2. In this connection, the provisions of Order V, Rule 25, C.P.C. is relevant, which is reproduced as under for ease and convenience: "Where, the defendant resides out of Pakistan and has no agent in Pakistan empowered to accept service. The summons shall be addressed to the defendant at the place where, he is residing and sent to him by post, if there is postal communication between such place and the place where the court is situate."
The learned trial court has not bothered to comply the aforementioned mandatory provisions of C.P.C. as the learned trial court has not issued any notice through postal communication to the petitioner/judgment debtor through embassy of Pakistan in Saudi Arabia. The learned trial court has also not got published notice in any national or international newspaper. It is also admitted that no power of attorney or written statement had been filed on behalf of defendant by counsel who had entered appearance without securing power of attorney from the defendant. Hence, ex parte decree passed by the learned trial court against the present petitioner/judgment debtor is result of misrepresentation and fraud and is not sustainable in the eye of law. It is sufficient for the court to set aside the same as the learned trial Court has committed material irregularity and illegality while passing the impugned ex parte decree. Thus the petitioner/judgment debtor has successfully proved plea/ground of misrepresentation and fraud.
13. For what has been discussed above, this revision petition is accepted and consequently, the application filed by the petitioner under section 12(2), C.P.C. before the learned trial court is allowed.
Accordingly, ex parte decree dated 31.07.2016 passed by Civil Judge 1st Class Skardu and the impugned judgment passed by first appellate Court Skardu are set aside. Consequently, the suit of the respondents/plaintiffs shall be deemed pending before the learned trial court and learned trial court shall decide the matter afresh after providing fair opportunity to the petitioner/defendant to file written statement and to adduce evidence in accordance with law.
14. Before parting with this judgment the learned trial court is directed to dispose of the suit of the respondents/plaintiffs within six months of passing of this judgment as the suit of the present respondents is lingering on since 2011. Parties are directed to appear before the learned trial court on 10.11.2021. Parties are left to bear their own costs. This revision petition is disposed of accordingly.
File.