A suit for possession through pre-emption was filed by the respondents against the petitioners with respect to agricultural land situate in Mauza Kohalian, Tehsil Bhalwal, District Sargodha. This suit was contested by the petitioners initially but later on during the trial they absented themselves with the result that the trial Court on 3-3-1971 proceeded ex parte against them and passed a decree.
The petitioners applied under Order 9 rule 13 of the C.P.C. For setting aside the decree on the ground that after the transfer of the suit from the Court of Senior Civil Judge they did not receive any notice and, therefore, had no knowledge that the suit had been transferred to the Court which passed the ex parte decree. This application was resisted by the respondents. The learned trial Court after framing the necessary issues and recording evidence of the parties dismissed the said application on 5-4-1974. Aggrieved by this decision, the petitioner went in appeal which too was dismissed by the learned District Judge, Sargodha on 14-3-1975. Hence this revision petition.
2. Mr. Bashir Zafar, Advocate, learned counsel for the petitioners has rasied two contentions; Firstly, that the suit ws originally pending in the Court of Senior Civil Judge, Lahore, wherafter it was transferred to different Courts but the petiitoners didnot receive any notice and, therefore, there was sufficient justification for setting aside the ex parte decree and secondly, that the decree passed by the trial Court was not m consonance with law inasmuch as the evidence already produced by the parties was neither discussed nor considered but only a laconic order was passed and as such the ex parte proceedings should have been set aside.
3. As regards the first contention of the learned counsel for the petitioners, it is to be noted that after the transfer of the suit from the Court of Senior Civil Judge to the Court which passed ex parte decree, the learned counsel for the defendants/petitioners had been appearing before the trial Court. On 9th of November, 1970, in the presence of the learned counsel for the parties, the case was fixed for evidence of the petitioners for 9th of December, 1970 and thereafter it was adjourned at the request of the learned counsel firstly to 20th January, 1971 and then to 3rd of March, 1971. On this date, neither the learned counsel nor the petitioners were present and, therefore, the learned trial Court proceeded ex parte. Since the learned counsel for the petitioners had been appearing before the trial Court on the previous dates the question dates the question of issuance of any notice or its non-service was of no consequence. The case was adjourned to 3--3-1971 at the request of the learned counsel for the petitioners but the is no explanation as to why he did not appear on that date. There was consequently no justification for setting aside the ex parte decree and the two Courts below were correct in refusing the application filed by the petitioners in this behalf.
4. Reverting to the other contention of the learned counsel, it, is to be seen that the present revision petition arises out of an application for setting aside the ex parte decree and the refusal of the two Courts below to grant this application. When an ex parte decree is passed against a defendant he has more than one remedies open to him. He can apply under Order 9 rule 13 C.P.C. For rehearing of the decree passed ex parte against him; can file an application for review or challenge the decree by fling an appeal. The remedies of appeal and application for setting aside the ex parte decree are concurrent and can be availed of even at one time. If, however, the defendant does not file any appeal against the ex parte decree but only applies under Order 9 rule 13 C.P.C. For setting aside the decree, the Court cannot go into the merits of the ex parte decree but its jurisdiction is confined only to finding out whether the petitioner-defendant was prevented by any sufficient cause from appearing on the date of hearing or not. If, he wishes to challenge the decree on merits also, his remedy lies in filing the appeal or an application for review. The present revision petition is directed against the orders of the two Courts below dismissing the application for setting aside the ex parte decree and, therefore, it is not open to the petitioner to challenge the validity of the decree on merits in these proceedings. A Full Bench of this Court in Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 while noticing the distinction between an application for review and rehearing was pleased to observe that in the event of an application for setting aside the ex parte decree the Court cannot go into the merits of the decree but is required to find out whether the petitioner was prevented by sufficient cause from appearing. In Messrs Muhammad Hanif Saleh Muhammad & Co v. Abdul Sattar & Co. PLD 1969 Kar. 183 it was observed that all that the Court is required to do in proceedings arising out of an application under Order 9 Rule 13 C.P.C. Was to satisfy itself regarding the service of the summon on the applicant or the sufficiency of cause of his non-appearance and the merits of the decree are not to be considered. In this view of the matter, this contention of the learned counsel cannot be considered in these proceedings.
5. It was next contended by the learned counsel for the petitioners that as this Court is seized of the matter it may exercise its revisional jurisdiction and set aside the ex parte decree. It is not denied by the learned counsel that the decree could be subjected to appeal before the lower appellate Court. The petitioners, however, failed to avail of this remedy. There is as such no justification for interfering in the ex parte decree in these proceedings under section 115 of the C.P.C. Reference in this connection may be made to S. Azizul Hassan and another v. Malik Ghulam Muhammad 1971 SCM R 123 and Shah Muhammad v. Ghulam and another PLD 1970 SC 196.
In view of what has been stated above, this revision petition fails and is dismissed leaving the parties to bear their own costs.