Facts are firstly assimilated in a brief compass that Syed Allauddin etc. Filed a suit for declaration in the Court of Senior Civil Judge, Swat as against the Chief Land Commissioner N: W.F.P. (defendant No.l), Land Commissioner Malakand Division (defendant No.2), Deputy Land Commissioner Swat (defendant No.3), Mian Gul Jehanzeb (defendant No.4), Mian Gul Shahzada Sultane Room (defendant No.5) and Government of N.-W.F.P. Through Home Secretary (defendant No.6).
Processes were issued to the defendants. Firstly defendants Nos. 4 and 5 attended the Court, while defendants Nos. 1 to 3 put in appearance through their representative. Fresh summons were issued to defendant No.6 through A.D. Registered post. However on 28-4.1980 the Government Pleader filed a written statement for and on behalf of defendants Nos. 1 to 3 and 6, while defendants Nos. 4 and 5 were yet to file their written statements that the Court ordered deletion of their names from the panel of the defendants on the plaintiffs' request. Thereafter issues were framed and plaintiffs' evidence was recorded with due opportunity of cross-examination to the Government Pleader.
Case was fixed far evidence of the defendants on 4-4-1982 in the presence of the counsel for the parties but on the said date the defendants' evidence was not in attendance and the case was adjourned to 7-4-1982. On the said date the defendants absented along with their evidence. They were accordingly placed ex parte and on the strength of evidence on record the plaintiffs were granted ex parte decree as prayed for.
2. Sometime on 29-4-1985 during the course of execution of the ex parte decree defendants Nos. 1 to 3 and 6 filed an application through Special Additional Government Pleader for setting aside of the ex parte decree dated 7-4-1982. It was alleged that no summons were served on the defendants and that the ex parte decree was obtained through collusion. The learned trial Court dismissed the application under observations that the defendants were duly represented before him in the proceedings through Government Pleader; filed their written statement; cross-examined the plaintiffs' witnesses and that the case was fixed for the evidence of the defendants that the Government Pleader along with the evidence had absented and consequently after placing the defendants ex parte, an ex parte decree was passed on the strength of the evidence on record. The defendants' application was also held time-barred since their application was governed under Article 164 of the Limitation Act to be filed within 30 days from the date of the decree as they were served with summons; had participated in the proceedings and had the knowledge of the decree, while they had filed the application after the expiry of more than three years of the date of the ex parte decree. Defendants went up in appeal before the District Judge against the above order but he also concurred with the findings of the trial Court and dismissed the appeal. There was filed a revision petition mainly on ground that the trial Court has passed the ex parte decree against the petitioner i.e. Government of N.-W.F.P. Without taking into account the material on record and that the evidence produced by the plaintiffs --respondents did not disclose any cause of action, much less, to be made a basis for the grant of an ex parte decree.
3. Mr. Amjad Zia O.S.D. Appeared for the petitioner, Mr. Nasirul Mulk Bar-at-Law pleaded for decree- holder-respondents and Mr. M.Sardar Khan, Advocate represented the respondents since deleted from the array of the defendants by the trial Court, however, impleaded as respondents in the revision petition.
4. It was canvassed that defendant No-6 petitioner was not served withs ummons and that limitation shall run in his case from the date of the knowledge of the impugned ex parte decree and that the Courts below had erred in declaring his application as time-barred. True, defendant No.6 petitioner does not appear to have been served with summons as the process has not been received after service by the Court. Nonetheless, he has put in appearance and filed written statement jointly with defendants Nos. 1 to 3 through Government Pleader and also participated in the proceedings throughout and it was on 7-4-1982 that defendant No.6 petitioner and defendants Nos.l to 3 and the Government Pleader had absented along with their evidence that they were placed ex parte followed by ex parte decree. Petitioner's is not a case of non-appearance on the first day of hearing that Order 9 would apply. He has been placed ex parte since he absented from the proceedings on a day to which the hearing of the, suit was adjourned and in his case Order 17 Rule 2, C.P.C. Will have the .Application whet, render the Court has the power to dispose of the suit in one of the modes directed in that behalf by Order 9 as to place him ex parte followed by ex parte decree. As against the ex parte decree petitioner has the remedy to apply for setting it aside under Order 9 Rule 13, C.P.C., review, appeal or application under section 12(2),C.P.C. He has, however, opted to avail his remedy under Order 9 Rule 13, C.P.C. Whereunder the Court has to confine its enquiry if the summons were not duly served on him and that he was prevented by any sufficient cause from appearing at the call of the case by the Court. Now his is not a case of non-service of summons since he has put in appearance and participated in the proceedings through Government Pleader. He has not pleaded any sufficient cause preventing him from appearance in the Court on the date of. Hearing.
5. As far as his representation through Government Pleader is concerned reference is made to section 79 read with Order XXVII Rule 4, C.P.C. Providing that a suit by or against the Provincial Government, the Province shall be arrayed as party and that the Government Pleader in any Court shall be the Agent of the Government for the purpose of receiving process against the Government-issued by such Court. Further under Order XXVII Rule 2 -persons being ex officio or otherwise authorised to act for the Government in respect of judicial proceeding shall be deemed to be the recognised Agents for appearance, acts and applications for and on behalf of the Government. Government Pleaders are the persons so authorised to act for the Provincial Government as its recognized Agents for the purposes of appearance, acts and applications. They need not file stamped powers of attorney. The written statement filed by petitioner defendantNo.6 through Government Pleader and further participation by the said Government Pleader for and on behalf of the Government of N.-W.F.P. Shall be accordingly deemed due participation by the recognised Agent to duly bind down his principal the Provincial Government by his acts and omissions. There has also not come forth an affidavit of the said Government Pleader that he did n6t bear instructions from the Government of N: W.F.P. Or that he did not act- as its recognised Agent in filing a written statement and participating in the proceedings. The other two defendants, Land Commissioner Malkand(defendant No.2) and Deputy Land Commissioner Swat (defendant No.3) have been duly served with the summons as received back by the Court after service and placed on file. Those defendants had common interest with defendant No.6 petitioner and had filed a joint written statement along through Government Pleader for and on their behalf as well as defendant No.6. Petitioner cannot, therefore,) canvass his non-representation in the proceedings.
6.In fact the learned counsel for the petitioner argued that the impugned ex parte decree was not sustainable on merits. He could, however, agitate this point by having opted for making an appeal against the impugned ex parte decree before the appellate Court but under Order 9 Rule 13, C.P.C.
He was to challenge the ex parte decree only for want of service or prevention from appearance at the t hearing due to sufficient cause.
7. Resultantly there cannot be taken exception to the orders of the Courts below in dismissing the petitioners' application and appeal on the point of limitation and otherwise and consequently this revision petition is also dismissed with costs. Pleader's fee is fixed at Rs.1,000.
8. Before parting it is remarked that Land Commissioner Malkand (defendant No.2) and Deputy Land Commissioner Swat (defendant No.3) had been duly served and had appeared through their representative on 9-2-1980; 8--3-1980 and 30-3-1980 and on 28-4-1980 a joint written statement was filed by the Government Pleader for and on behalf of defendants Nos. 1 to 3 and 6. The case was heard and tried in the Court of Senior Civil Judge, Swat and the representatives of the defendants 2 and 3 could at least pursue the case provided they wanted to. The learned Government Pleader who had absented from the proceedings on 7-4-1982 when there was passed an ex parte decree in the case on the said date also did not bother to know about the fate of the proceedings. He had perhaps been also guilty of culpable negligence in having not applied for setting aside the ex parte decree in time and that one application as such was made after the expiry of more than three years of the impugned ex parte decree which was barred by time under Article 164 as well as the residuary Article 181 of the Limitation Act. In fact the Government functionaries are negligent mainly on account of non-accountability. May a copy of this judgment be sent to the Chief Secretary, Government of N: W.F.P. For necessary suitable action at his end since Government has been deprived of a huge property due to the culpable negligence of its functionaries.