CH. MUHAMMAD IQBAL, J.---Through this civil revision, the petitioners have challenged the validity of an order dated 29.01.2014 passed by the learned Civil Judge, Mianwali who dismissed the application under Order IX, Rule 13, C.P.C. filed by the petitioners for setting aside the ex-parte judgment and decree dated 10.05.2008 and also assailed the judgment dated 22.12.2016 passed by the learned Additional District Judge, Mianwali who dismissed the appeal of the petitioners.
2. Brief facts of the case are that the respondent/plaintiff Zia Ullah Khan filed a suit for specific performance against the petitioners/defendants which was decreed ex-parte on 10.05.2008. The petitioners filed an application under Order IX, Rule 13, C.P.C. for setting aside the ex-parte judgment and decree dated 10.05.2008. The respondent filed contesting reply of the application.
The learned trial Court framed issues, recorded evidence of the parties and finally dismissed the application on 29.01.2014. Being aggrieved, the petitioners filed an appeal which was dismissed by the learned Additional District Judge, Mianwali on 22.12.2016. Hence, this civil revision.
3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
4. The main controversy revolves in this case is entered on Issue No.1, which is as under: Whether the respondent has obtained ex-parte judgment and decree dated 10:05.2008 by practicing fraud and misrepre-sentation and the same is liable to be set aside? OPA Onus to prove the issue was upon the petitioners. To dislodge the onus, Muhammad Nasrullah Khan, one of the petitioners, (A.W.1) reiterated the assertions made in the plaint. During cross- examination, he deposed that it is correct that, Muhammad Ashraf Khan, Advocate was appointed as counsel who also filed written statement; that the counsel did not inform them about the proceedings of the case; that he has no knowledge that on 10.04.2006 both the counsel of the parties recorded statements. Tariq Javed (A. W.2) supported the version of the petitioners:
5. Conversely, Zia Ullah Khan (R.W.1) deposed that the applicants, from the very initial stage, were aware of the proceedings of the suit; that the written statement was filed; that stay application was dismissed against which he filed appeal wherein Muhammad- Ashraf Khan, Advocate represented petitioners. During cross-examination, he deposed that: Admittedly the petitioners Nos. 5 to 8 were minor at the time of passing of the ex-parte decree against them. The Honble Supreme Court of Pakistan in a recent pronouncement cited as Muhammad, Amjad Khan Afridi and others v. Shad Muhammad and others (PLD 2022 SC 27) held that it is duty of the Court to look into the rights of the minors and the courts are to realize that a minor litigant is considered to be under their protection, and primarily it is their duty to watch over his interests and ensure that he is duly represented and defended in the proceedings before them. For reference, relevant portion of the judgment (supra) is reproduced as under: "6. The provisions of Order XXXII of the C.P.C., which advance the mandate of Article 25(3) of the Constitution, are to be interpreted and applied with a dynamic and progressive approach to achieve the object for which they have been made, that is, the protection of the rights and interests of the minors. The Courts are to realize that a minor litigant is considered to be under their protection, and primarily it is their duty to watch over his interests and ensure that he is duly represented and defended in the proceedings before them. That is why despite appointment of a guardian ad litem, no agreement or compromise can be entered into on behalf of the minor by that guardian without leave of the Court. The Court is to see vigilantly the conduct of the guardian ad litem in representing and. defending the minor, and to remove him if he fails to do his duty by acting in a manner that is detrimental to the interests of the minor. Where there is no other person fit and willing to act as guardian for the minor, the Court is to appoint any of its officers to be such a guardian.4 Order XXXII of the C.P.C., thus, visualizes no such occasion where a minor defendant can be proceeded against ex parte.
7. In Fauzia Parveen case, a four member Bench of this Court while maintaining the orders of the courts below setting aside an ex parte decree passed against the minors, observed: A fact noted by the District Judge as well as by the High Court which was by itself considered sufficient to set aside the ex-parte decree was the fact that respondents 3 and 4 were admittedly minors at the relevant time. They were proceeded against in the litigation through their guardian Mst. Musarrat Begum respondent No.2 who was their mother. It is also an admitted fact that Mst.
Musarrat Begum had defaulted in putting in appearance on her own behalf and on behalf of these minor respondents whom she was required to represent under the, orders of the Court. It was, therefore, a case- where the guardian had been negligent and had defaulted in representing and protecting the interest of the minors. Rule 11, Order XXXII, C.P.C. requires that "where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit." The same rule goes beyond. further to prescribe "where the guardian for the suit retires, dies or. is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place".
In this case, the guardian had failed to do her duty and was liable to be removed and substituted by the Court. As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not. We are therefore, in agreement with the view taken by the two Courts at this omission to ensure proper representation of the minors was material factor to be taken note of while considering the application for setting aside the ex parte decree."
The aforesaid material aspect has not been considered by the learned Courts below who in a routine matter decided the issue against the petitioners.
6. In view of above, it can conveniently be observed that the petitioners successfully proved their assertions through concrete, reliable and convincing oral as well as documentary evidence which material facts have not been taken into consideration by the two courts below who by committing misreading and non-reading of the evidence, illegally decided issue No. 1 against the petitioners, as such, the findings of the learned Courts below on said issue are hereby reversed and this issue is decided in favour of the petitioners and against the respondent.
7. As discussed above, the decisions of the learned Courts below suffer from blatant misreading and non-reading of the evidence as well as rids-application of law, as such, the same are not sustainable in the eyes of law and are liable to be set-aside and this Court is well within jurisdiction to reverse the illegal and perverse concurrent findings. Reliance is placed on the cases titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).
8. Resultantly, this civil revision is allowed, the order dated 29.01.2014 passed by the learned Civil Judge, Mianwali and judgment dated 22.12.2016 passed by the learned Additional District Judge, Mianwali are set aside and by accepting the application of the petitioners under Order IX, Rule 13, C.P.C. the" ex-parte judgment and decree dated 10.0.2008 passed by the learned Civil Judge, Mianwali " is also set aside. Consequently, the suit for specific performance filed by the respondent shall deem to be pending before the learned trial Court who shall decide the same afresh strictly on merits and in accordance with law. Both the parties are directed to appear before the learned District Judge, Mianwali who shall entrust the case to a court of competent jurisdiction for its disposal as per law. No order as to costs.