The relevant facts for the decision of present revision are that the petitioner filed a suit for declaration against the respondent in respect of Sangeet Cinema, Chichawatni, District Sahiwal.
The respondent No.l is the real brother of the petitioner while respondent No.2 is wife of the said respondent. The petitioner also moved an application for grant of temporary injunction. The suit was riled on 2-2-1981 and came up for preliminary hearing on 3-2-1981. The trial Court order issuance of notices to the respondent for 16-3-1981. On this date it was recorded by the trial Court that respondent No.l has made confessional written statement while respondent No.2 has not appeared in spite of service, therefore, she was proceeded against ex parte and suit was decreed under Order 9 Rule 6 C.P.C. The respondent No.2 moved an application for setting aside the ex parte decree. It was pleaded that neither any notice was issued to her nor she was served nor she was residing at the address given in the plaint. It was explained that she was married to respondent No.l but their relations became strained, therefore, she left for the house of her parents in District Sialkot. The petitioner and respondent in order to deprive the petitioner of valuable property filed this collusive suit. This application was resisted by the petitioner. The trial Court accordingly framed the following Issues:-
(1) Whether the application is within time ?
(2) Whether there are sufficient grounds to set aside the ex parte decree in dispute ?
(3) Relief.
The parties led their respective evidence and Mr. Muhammad Siddiq Tabassum, Civil Judge, Chichawatni, seized of the matter, rejected the application vide order dated 30-1-1988. The respondent No.2 impugned this order through appeal in the Court of learned District Judge, Sahiwal, who after hearing the parties proceeded to accept the appeal vide order dated 1-3-1989.
The result was that the application of the respondent No.2 for setting aside the ex parte decree was granted and trial Court was directed to decide the suit in accordance with law.
2. The petitioner has now assailed this order of the learned District Judge through the present revision petition. The petition came up for preliminary hearing on 13-6-1989 and I requisitioned the record of trial. Court in order to appreciate the arguments on behalf of the petitioner. The record was received, thereafter proceeded to hearing the learned counsel for petitioner.
3. The learned counsel for the petitioner in support of the petition has argued that respondent No.2 was duly served and the lower appellate Court has proceeded on wrong basis while accepting her appeal.
4. I have gone through the record with the assistance of learned counsel for petitioner. The suit, as already noted, was filed on 3-2-1981. The same came up for hearing along with said petition on 3- 2-1981 when notices were to be issued to the defendants for 16-3-1981 while in the petition notice was issued to the respondent for 15-2-1981. The Ahlmad has recorded in the margin of the order sheet of the petition that the notices have not been received. However, it appears from the order dated 15-2-1981 that respondent No.l entered appearance and requested for time to file written reply and written statement. Therefore the matter was adjourned to 25-2-1981. On this date, the respondent No.l riled a confessional written statement and the suit was adjourned for written statement by defendant No.2 to 16-3-1981, the date already fixed in the main suit.
5. I have seen the order sheet. Neither any notice is shown to have been issued for 16-3-1981 in the main suit nor in the petition. There is no note by the Ahlmad as to the even furnishing of process fees or issuance of any process as for the order sheet pertaining to main suit is concerned while in the case- of order sheet pertaining to the said petition, it was noted by Ahlmad in the margin of interim order dated 3-2-1981 that the notices have not been received back. Thereafter neither trial Court issued the notices, nor there is any note as to furnishing the process nor issuance of any further notice. I have, also checked up the process fees furnished by the plaintiff, there are only two Fard Talbana available on record. The date of submission of them for both the forms is 2-10--1980 while Muhammad Naeem Advocate for the plaintiff has given the date under his signatures as 12- 1-1981, but there is no notice served or unserved which have been issued in between 3-2-1981, filing of the suit and 16-3-1981, the day ex parte decree was granted in favour of the petitioner. Now before proceeding any further, I would like to refer to the judgment of the lower appellate Court. I must say that the learned District Judge has scanned the whole record and recorded the comprehensive and self-contained order. His findings are as under:-
6. 1 have considered the respective contentions of the parties. At the very outset it is stated that the learned Civil Judge who decided the appellant's petition did not properly deal with the matter. He first decided issue No.l which was subservient to the finding on issue No.2, so he was required first to decide issue No.2 and then should have given his finding on issue No.l. Even other wise his findings on both the issues are erroneous. The bare reading of the suit file show that neither any summons was issued in the name of the appellant nor she was served; rather only respondent No.2 had appeared in connection with the application for temporary injunction, which was only against him but blindly the learned Civil Judge recorded that the appellant in spite of service had not appeared ...."
6. On perusal of the record as already noted, there is nothing wrong with the findings recorded by the learned District Judge and I have no hesitation to confirm his findings. I would like to refer to following para from the case of Shafait Muhammad v. Mst. Latif Jan PLD 1975 A J & K 114:- "Where a Court employs a procedure contrary to the law as is the case in the present dispute, and there is miscarriage of justice, amounting to abuse of the process of the Court, the High Court cannot sit as an idle spectator and connive with such miscarriage of justice brought to his notice."
6-A. This is not all. Before parting with the judgment, I would like to comment as to the conduct of Syed Bahadur Shah, the then Civil Judge, Sahiwal and Mr. Muhammad Siddiq Tabassum, now Civil Judge, Chichawatni. One of the arguments before the learned District Judge was that the Civil Judge, who granted decree perfunctorily dealt with the matter but the learned District Judge has not attended to this grievances of the appellant before him. It is proved from) the record as noted by this Court as well as by the appellate Court that no notice whatsoever, was issued to the defendant No.2, still this officer decreed the suit. 11 This is not the innocent mistake. This should not have been ignored as it was al case of clear injustice at the hands of a judicial officer.
7. Now coming to the Civil Judge, who dismissed the application for setting aside the ex parte decree. On the one hand learned District Judge has observed that the said Civil Judge has not dealt with the matter properly and also that his findings on both the issues are erroneous, on the other hand learned District Judge has sent the case back to him for decision in accordance with law. The case should not have been entrusted to him for decision on merits.
8. It is painful experience to go through this file. The defendant has clearly pleaded that she was not served rather no process was issued to her. This plea was fully supported by the record. Mr. Muhammad Saddiq Tabassum Civil Judge could not find way out to meet this plea and to dismiss the application except to observe that since his predecessor has recorded that the defendant No.2 did not appear in spite of service and presumption of correctness is attached to the order t of Court, therefore, the application is time-barred. There is no presumption to such biased and baseless orders. It was his duty to find out from the record when notice was issued to her and what was the fate of that notice. He exercised the jurisdiction in most illegal manner. In one of the similar cases, the conduct of executive officer comes under consideration of Peshawar High Court in the case of Central Government of Pakistan and another v. Khoedad Khan and 5 others 1980 CLC 1462 and their Lordships were pleased to comment as under:-- "Although the solitary fact that the notice had not been duly served on the appellant is sufficient for setting aside the ex parte decree, we would like to point out that apart from other things, the ex parte decree was not only the result of fraud but had also resulted in the miscarriage of justice. It is most unfortunate that a civil servant should behave in a manner in which some civil servants have conducted themselves in this case."
9. The result is that the petition is dismissed. The suit file of Muhammad Saleem v. Mushtaq Ahmad etc. And Mst. Mubra Gul v. Mushtaq Ahmad etc. (This file was not sent for by this Court, but the trial Court in its own wisdom has sent the file along with other file which was requisitioned) are sent to the learned District Judge, Sahiwal, who is directed to withdraw these files from the Court of Mr. Muhammad Siddiq Tabassum Civil Judge Chichawatni and entrust the same to any judicial officer of known integrity at Sahiwal.