1. ' Office objections, in view of the order being passed today are not relevant and disposed of accordingly.
2. Exemption, subject to all just exceptions, granted as prayed.
3. In this Civil Revision Application the grievance of the petitioners is based firstly, on the ground that the learned lower appellate Court had heard and allowed the appeal ex parte in the early part of the day. It is next contended that the averments made in the plaint appeared to be palpably false and that the suit, being barred by time, the plaint was rightly rejected by the learned trial Court and that such order did not call for interference in appeal.
2. I have heard the learned counsel for the petitioners at length. So far as disposal of the appeal in the early part of the day is concerned, it is no doubt, a wholesome and healthy practice to pass ex parte orders in the later part of the day and only in the last resort. However, if, for good reason, this practice is deviated from and such an order is passed early in the day, the outcome cannot be termed a nullity. The resultant order may or may not be set aside depending on due cause shown and to some extent, even the merits of the controversy. Merits are particularly relevant when an appeal, having been heard ex parte, is allowed, as happened in this case.
3. ' Now, learned counsel for the petitioners has placed on record today material showing his subsequent appearance in appeal, as reflected in an adjournment application under Order XVII, Rule 1, C.P.C. Which seems to have been moved shortly after the passage of the impugned order.
4. The application was dismissed by the learned lower appellate Court on the ground that the appeal had already stood disposed of and, on merits, at that. Learned counsel in support of what he contends, has relied on Shah Zaman v. Muhammad Aslam (PLD 1985 Pesh. 35) and Abdul Latif v.
5. Chairman, Board of Intermediate and Secondary Education, Sukkur (1986 CLC 1908). These citations support the proposition that ex parte order should not be passed at the outset and that matters in consonance with the principles of natural justice, should be dealt with ex parte only, after having been called again, at the end of the day. There can be no cavil with these observations. As I have already said earlier, such an ex parte order as aforesaid, even though on merits, need not have been passed in the early part of the day and it would have been a lot better, even advisable that the learned lower appellate Court had waited for a longer period of time before applying the rule of ex parte hearing to the appeal before it. Nevertheless, since such an order, as observed above, is not a nullity and constitutes an irregularity, if on merits, the same can be recalled only, if it is shown that material prejudice has been caused on account of the manner and mode of its passage. When, however, such an ex parte order is one of mere dismissal or an automatic grant of relief solely due to absence, merits are irrelevant and the order is liable for recall (unless the default is contumacious) if for no other reason only because of its being passed without providing adequate opportunity of hearing, which ipso facto stood denied by its passage otherwise than at the end of the day. Since, however, the appellate Court allowed the appeal, though ex parte, on merits, I have myself provided due hearing to the petitioners but, on hearing, am of the view that no immediate prejudice has been caused to the petitioners and, therefore, the ex parte hearing and the ex parte disposal does not call for interference.
6. ' As to the merits of the controversy, it is stated in the plaint that plaintiffs, Ghulam Nabi and Mst.
7. Janul, are the legal representatives of one Mst. Bibal, who was their real mother. This lady died in the year 1951, herself being the daughter and legal representative of one Allah Warayo Sethar. It is then said in the plaint that this Mst. Bibal had inherited some agricultural properties in Dehs Khanpur and Mirza Wah from her late father and that such inheritance was duly reflected in entry No,12 and entry No,1, both dated 29-9-1951 in the revenue records of both the referred Dehs. It was pleaded that Dost Mohammad, brother of the said Mst. Bibal, in league with two other brothers, namely, Haji Mewal and Behram the latter two sued through legal representatives, colluded with one another to have the revenue records altered, by, in unison with revenue officers, committing fraud and the share of Mst. Bibal, from the inheritance of her father late Allah Warayo, was, resultantly, wrongfully arrogated. In so doing, miss-statements were made and suppression of real legal heirs of Mst. Bibal was involved. As to limitation, it is said that the two plaintiffs were minors at the time of demise of Mst. Bibal and that they, only came to know of fraud having been committed, in respect of their rights of inheritance, through their mother, in April, 1988 and filed the suit from which this revision application arises.
8. It is an established legal proposition that, for the purposes of considering an application under Order VII, Rule 11, C.P.C., whatever is stated in the plaint is to be taken as true and it is on that basis alone that the Court has to determine whether or not the plaint is liable to be rejected, for one or more of the reasons as set out in Rule 11 of Order VII, C.P.C.
9. ' What the learned counsel contends is that even if the two plaintiffs could be taken to be minors and full period of minority was allowed to them, then too, on the basis of demise of their mother in 1951, they should be presumed to have come of age not later than in 1970. Thereafter, according to counsel, there is a further period of some 18 or 19 years, during which, since such plaintiffs were out of possession, the defendants, in the suit, became owners by adverse possession. As to fraud, it is said that necessary details in relation to the same are missing in the plaint. On all these pleas, the plaint is claimed to be subject to bars, as contemplated by Order VII, Rule 11, C.P.C.
10. The contentions of the learned counsel do not take into account that adverse possession is a serious legal concept and that mere possession need not always be equivalent to what the law terms as adverse possession. Possession in order that it be treated as adverse must be open, continuous and hostile and unless all such ingredients are available in relation to a particular claim of possession such possession cannot be deemed to be adverse. This question therefore, would arise on due defence to such effect being taken but a plaint cannot be thrown over-board solely on the basis of a possible or even probable defence. It will no doubt be open to the defendants in the suit to show and prove that their possession was adverse but then the time for that has not yet come. This ground for supporting the order of the trial Court leading to the rejection of the plaint, therefore, fails.
11. ' The next contention of the learned counsel is that necessary particulars and details of fraud are not mentioned in the plaint and, that being the case, the plaintiffs in the suit are not entitled to advance either the plea of fraud or to take advantage of the period of limitation based on fraud, which would run from the date of knowledge. I am unable to agree with this contention, as well, because substantial details of fraud are already available in the plaint, as partly reflected in the above recitals of facts. Besides, by taking a strict view of pleadings a plaint cannot be rejected and all that a Court of law is competent, in the absence of F proper particulars and details, is to ask for better particulars, Further what the defendants have to contend here does not seem to have duly been brought home to them. The plaintiffs may or may not have known of the inherited share of their mother. Such knowledge seems to be material. Then and only then comes the question of mutation and knowledge of the same, and as to whom it was required. It has also to be kept in mind that under the rules of Muslim law of inheritance a person, entitled to inheritance, becomes a vested holder of due rights the moment succession opens. Knowledge or absence of knowledge of all the foregoing factors is thus material in order to carry the defence of bar of limitation, absence of fraud and adverse possession to .Any meaningful conclusion. These are all questions which must await trial. This ground also therefore, fails.
12. ' In view of the above, the revision application is dismissed in limine.
4. C.M.A. No,542/89 is an application for stay. In view of the order of dismissal recorded as above, this application does not arise and is also dismissed.