' On 7-9-1986 Mst. Waheeda Khatoon, respondent, filed a suit for the partition of property against Dr. H.H. Mirza, petitioner, in the Court of Senior Civil Judge, Lahore. The suit was resisted. Issues were framed. The parties led their evidence. The trial Court passed preliminary decree. Feeling aggrieved thereby, the defendant/petitioner filed appeal which was dismissed by the learned Additional District Judge, Lahore, on 13-5-1985, and the file was sent hack to the trial Court for further proceedings. On the receipt of the file, the learned trial Court issued notices to the parties, their counsel and to the Local Commissioner for 5-5-1985. Thereafter, Local Commissioner filed his report. On account of the non-appearance of the petitioner/defendant and his counsel the trial Court passed an order for ex parte proceedings on 24-4-1986 and ultimately granted ex parte decree in favour of the respondent/plaintiff and against the petitioner/defendant on 27-4-1986. On 7-9-1986, Dr. H.H. Mirza filed application for setting aside the ex parte decree on the grounds that the notices issued to him after the return of the file from the Appellate Court, were not served; that his counsel had never appeared before the trial Court after the return of the file to the trial Court; that his counsel had wrongly been marked present in the order-sheet and that he was not issued any notice with regard to the filing of the report of the Local Commissioner. This application was contested and the grounds for setting aside ex parte decree stated in the application, were denied by respondent/plaintiff. The trial Court without framing issues and affording an opportunity to the petitioner/defendant to substantiate the grounds taken in the application dismissed the same on 27-7-1987, on the ground that the contentions of the petitioner were not tenable. The appeal filed by the petitioner against this order was dismissed by the learned Additional District Judge on 7-12- 1987. Hence this revision.
2. The learned counsel for the petitioner mainly submitted that the petitioner was not given any opportunity to substantiate the grounds taken by him in the petition for setting aside the ex parte decree. The learned counsel for the respondent was of the view that since the grounds taken in the petition were against the order sheet in which the presence of his counsel was marked, therefore, there was no need to frame issues or give any opportunity to the petitioner to lead evidence in proof of grounds taken in the petition.
3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that in his application for setting aside the ex parte decree, the petitioner has taken grounds which did need the factual investigation. He had challenged the authenticity of the order- sheet. Because of the ex. Parte order dated 20-4-1986 the petitioner could not file objections on the report of the Local Commissioner on basis whereof the final decree was passed. I feel that in these circumstances, the trial Court was obliged to afford opportunity to the petitioner to prove his case by producing evidence and the disposal of his petition summarily was quite illegal.
4. Pursuant to the above discussion, this revision application is allowed. The impugned orders passed by the trial Court and by the Appellate Court are set aside, and the case is sent back to the trial Court for fresh decision on the application of the petitioner for setting aside the ex parte decree, in accordance with law. The parties shall bear their own costs.