' This revision petition by Mohibullah and others directed against the order of the learned Civil Judge, 1st Class, Peshawar dated 1st of December, 1981, whereby ex parte decree passed against the respondents and in favour of the petitioners on 24th of January, 1978 was set aside.
2. Facts of the case briefly stated are that Mohibullah and his brother Said Rehman instituted the present suit in the Court of Senior Civil Judge, Peshawar on 19-2-1976 against Government of Pakistan through Secretary, Defence Department, Islamabad, and others for declaration that plaintiffs are the owners in possession of land measuring 293 Kanals 4 Marlas situated in village Regi Lalam, Tehsil Peshawar detailed in the heading of the plaint. Further prayer has been made to declare the entries in the revenue record regarding the ownership of the defendants to be illegal and ineffective on their rights. In the body of the plaint it was alleged that Said Ali son of Shah Nawaz was the occupancy tenant of the suit Khasra number who sold the same in favour of Mir Alam Khan son of Ashraf Khan, predecessor-in-interest of the plaintiff, through a registered sale- deed dated 31st March, 1983; that on coming into force of the N.-W.F.P Tenancy Act, 1950, the occupancy tenancy rights were converted into full ownership whereby plaintiff-petitioner became full owner of 2/3rd share of the suit property while defendant Nos.4 to 44 are the owners of the remaining 1/3rd share. As no effect was allegedly given to registered sale-deed in the revenue record the original occupancy tenants and their successors have been retained in the revenue record. The entry of ownership and occupancy rights in the name of defendant No.1 was also challenged to be without any justification. An ex parte decree was granted to the plaintiff on 24-1- 1978 by the learned Civil Judge without recording any evidence on the failure of the defendant to appear on the date fixed though they were served through publication in daily 'Mashriq'. It was on 22-4-1978 that an application was made by defendants Nos.1 and 2 namely the Government of Pakistan through Secretary, Ministry of Defence, and Military Estate Officer, Peshawar, for setting aside of the ex parte decree dated 24-1-1978 passed against them referred to above. This application was resisted by the decree-holder but the learned Civil Judge after recording evidence of the parties accepted the same and set aside the ex parte decree vide the impugned order dated 1-12-1981. Dissatisfied with the said order plaintiff-petitioners have come to this Court for setting aside the said order and restoration of the ex parte decree.
3. Mr.Abdul Bari Khan, Advocate for the petitioners and Syed Ibne Ali, Additional Advocate-General for the Government present and heard. Record of the case also perused.
4. The only question which requires determination in this case is whether the Government of Pakistan and Military Estate Officer, Defendants 1 and 2, respectively, were duly served in the suit before passing the ex parte decree against them. The learned trial Judge on consideration of the evidence of the parties recorded on the application has come to the conclusion that service was not effected on the defendants for the date fixed in the case, hence has set aside the ex parte decree. In order to appreciate the contentions of the learned counsel for the parties on the point, I deem it necessary to refer to the various summons issued in the suit which are available on the file.
On 16-9-1976 summons were ordered to be issued to the defendants for 30-7-1976. Summon issued in the name of defendant No.2, i.e.Military Estate Officer was returned with a note that a copy of the summon has been handed over to the concerned clerk, however, there is no endorsement by the clerk concerned of having received the summon. As on 30th of July, 1976 the Court was not working case was adjourned to 20-10-1976 and on that date presence of the representative of defendant No.2 has been marked but there appears no letter of authority on the file nor the name of the representative is recorded who had allegedly made an appearance in Court. There is, however, nothing on the record to show that summon was issued in the name of defendant No.1.
On the subsequent date i.e 9-2-1977 it has been mentioned in the order-sheet that defendant No.1 has been personally served but was absent, there fore, ex parte proceedings were ordered against the defendants. Subsequently this case was transferred from the Court of Senior Civil Judge to that of Civil Judge 1st Class, Peshawar. On receipt of the file on 9-6-1977, the learned Civil Judge ordered that summon be issued to the defendants for 11-7-1977. On that date too the Presiding Officer was on leave and the case was adjourned to 24-9-1977 but neither the presence of the parties nor their learned counsel is marked. On the adjourned hearing i.e. 24-9-1977 the presence of the plaintiff's counsel was noted but fresh summons were ordered to be issued to the defendants for 29-10-1977.
5. On 29-10-1977 the following order was passed; [URDU TEXT] ' On the date fixed for substituted service through publication in the Newspaper the Presiding Officer was not working and so the case was adjourned to 24-6-1978, however, the presence of either of the parties or their learned counsel has not been recorded and on the adjourned hearing the ex parte decree was passed.
6.
7. #TBS
8. A
9. E
10. #TBE
11. On going through the various order-sheets it can be safely gathered therefrom that the entire proceedings in the case were conducted in an irregular and unsatisfactory manner, though considerable agricultural land recorded in the ownership of the Government was involved in it. It was the duty of the Court before proceeding ex parte to have satisfied itself that all parties to the suit have been properly served or duly represented. It has merely been mentioned in the order- sheet dated 20-10-1976 that representative of defendant No.2 was present in Court, however, no document of authorisation is available on the record nor the name of the representative allegedly authorised by defendant No.2 is mentioned therein. It was incumbent on the Court while marking the presence of a representative or authorised agent of a party to have specifically mentioned the name of such person, to have verified the document of authorisation and to have placed it on the record. Furthermore, on several occasions on account of absence of the Presiding Officer the case was adjourned, however, while adjourning the case neither the presence of the parties and their learned counsel have been recorded nor is it mentioned that Parcha Peshi was issued to them which practice too is unwarranted. The learned trial Judge also committed illegality in ordering service of the defendant through publication without fulfilment of the requirements of law. Before ordering service by publication in the newspaper it is required under Order V, rule 20 that Court must satisfy itself through the material available before it that service could not be effected through ordinary mode of service. In the case in hand there is no material to warrant the action taken by the learned Judge. The order is based on the oral assertion made by the plaintiffs in Court which practice is highly regrettable. Even the summon issued to the defendant had not been received back in Court when the order for service through publication was passed. For the reasons stated above the order setting aside the ex parte decree was legally justified and unexceptional in the circum stances of the case.
12. It may also be pointed out that the suit land was entered in the ownership of the Government in the column of ownership in the revenue record filed alongwith the plaint while in the column of cultivation the same was shown in possession of Executive Engineer, North-Western Railway. In spite of this documentary evidence, to which presumption of truth is attached and without recording any other evidence the impugned decree declaring the plaintiffs to be the sole owners was passed relying on the provisions of Land Reform Ordinance, 1972. It has been observed for and against that Courts are not to grant decree to the plaintiffs in ex parte proceedings of grace and without reason and by him, it is still the duty of the Court to go through the contents of the plaint, the material placed before it in arriving at a tentative findings on the allegations made in the plaint. It becomes more so necessary when documentary evidence in the shape of revenue record is available to the Court which negatives the claim made in the plaint. In such like cases when the plaintiff fails to lead ex parte evidence to dislodge such entries in existence against his interest the Court is not obliged to decree the suit merely on the ground that proceedings before it are ex parte. This revision petition, therefore, fails which is dismissed with no order as to costs.