' This Revision Petition by Shah Zaman and his brother under section 115, C. P. C. Is directed against the judgment and order of Additional District Judge, Abbottabad at Haripur, dated 20-2-1982, whereby the appeal filed by the petitioner was rejected and the judgment and order of the Civil Judge, dated 26-4-1979 rejecting the application of petitioners for restoration of the application for setting aside ex parte decree in Civil Suit No, 434/1, decided on 6-4-1977 was maintained.
2. It transpires that Muhammad Aslam and others (respondents herein) brought a suit against Shah Zaman and his brother Muhammad Zaman (petitioners herein) for possession of land measuring 19 Kanals 2 Marlas out of Khasra No, 1485 situate in the area of village Dera in Haripur Tehsil on the allegations that the petitioners had encroached upon the mentioned land and wrongfully occupied the same. It is evident from the record of Suit No, 434/1, decided on 6-4-1977 that an ex parte decree was passed against the present petitioners by the learned Civil Judge in the mentioned suit on 6-4-1977.
3. An application for setting aside of the said decree was filed by the petitioners in the said Court on 27-9-1977. Vide the order dated 26-4-1978 in File No, 3916 the application so filed was dismissed in default. The petitioner then filed an application on 24-5-1978 for the restoration of the application for setting aside the ex parte decree but it was finally rejected on 26-4-1979.
4. The appeal filed against the mentioned order of the learned Civil Judge was also dismissed by the learned Additional District Judge, Abbottabad at Haripur on 20-2-1982 and hence the present petition.
5. In the instant case the application for setting aside ex parte decree, dated 6-4-1977 was fixed for filing written reply on 26-4-1978, The application was dismissed at about 9-00 a.m. In default due to the absence of the petitioners. The application dated 24-5-1978 submitted for the restoration of the said application as already stated, was dismissed by the learned Civil Judge on 26-4-1979 for the reasons recorded therein.
6. Learned counsel for the parties heard and the relevant record perused.
7. It is well-settled that the most important duty of the Courts of law is to do justice between the parties and in the absence of any express bar, normally on technical grounds they should not hesitate to give proper relief. It must also be mentioned that civil Courts are Courts of both la and equity and in the absence of special reasons they should always be inclined to do substantial justice and matters of controversy should always be disposed of on merits and not on technical consideration. This is always more important in case where there is apprehension that the party concerned shall be seriously prejudiced if the application or suit is not restored.
8. In the instant case, as stated above, the application was fixed for filing of written reply and was, therefore, not the date of hearing. It is also evident that the application was dismissed in default during the very early hours of the day, although according to the provisions of the High Court Rules and Orders this action could not be taken in the early hours of the day, It should have been called again towards the end of the day and such an action could be taken only if the petitioner had not appeared at that time.
9. In the circumstances the learned Civil Judge was required to have restored the application for setting aside the ex parte decree for proper hearing whether or not the petitioners had allegedly failed to establish sufficient cause for their non-appearance. In Alaf Hussain and another v.
Ghulam Muhammad (1), while examining a similar petition it was observed : "Additionally, it was also improper on the part of learned Civil Judge to have thrown out the suit in default during early hours of the day. Litigants should be awaited reasonably for appearance so as to ensure decisions of cases on merits for which purpose alone the Courts exist. Courts are not to act in the fashion of disciplinary institutions and lay traps for unwary litigants. Order dismissing the application for restoration of the suit amounted to non-exercise of jurisdiction by the Courts below vested in them in law and the case was covered by clause (b) of section 115, Civil Procedure Code."
' A similar view was expressed in Ghulam Muhammad v. Altai Hussain and another (2).
(1) PLD 1981 Lab. 339 (2) 1981 SCM R 533
10. The contention of the learned counsel for the respondents that such application for restoration of the previous application for setting aside the ex parte decree was not maintainable has no force for the reason it is now well-settled that a second application is maintainable under the provisions of Order IX itself read with section 141, C. P. C. As observed in Muhammad Rab Nawaz v. Muhammad Sadiq (1) and Ahmed Ali v. Registrar, Co-operative Societies (2), Judicial conscious is in favour of the view that a second application under Order IX for restoration of previously dismissed application under the same provision would lie either under Order IX E itself or under section 151, C.
P. C. And absence of any provision in the Limitation Act for such an application should not stand as a bar to deprive a party of this remedy which is not expressly prohibited by the Code of Civil Procedure or by any other statute.
11. It is also well-settled that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice.
12. For the reasons stated above, the petition is accepted, the orders of the Courts below are set aside, the application for setting aside the ex parte decree is restored and the case is remitted to the learned Civil Judge, Haripur for disposal in accordance with law. Parties shall be issued notices for appearance for a date during the second week of January, 1985 No order as to costs.
(I) PLD 1966 B J 27 (2) PLD 1971 Kar. 182