' This revision petition arises out of a suit for declaration filed by Abdul Haq, respondent No,1, on 27- 9-1983, in the Court of the Senior Civil Judge, Sargodha. The suit was decreed ex parte by the trial Court on 1-7-1986. The petitioner's appeal was dismissed by the learned Additional District Judge, Sargodha, on 11-4-1989.
2. During the pendency of the suit, the petitioners did not file any written statement. However, they filed an application under Order VII Rule 11 of the C.P.0 on 15-4-1985 for rejection of the plaint. Only two defendants, namely, Fazal son of Mahia and Mst. Razia Bibi daughter of Nathan filed their written statements in the Court admitting the claim of the plaintiff/respondent No,1. The trial Court passed an order for ex parte proceedings against the petitioners on 22-2-1986 and adjourned the case to 20-4-1986 for recording ex parte evidence. The ex parte evidence was accordingly recorded. Thereafter, the case was transferred to the Court of Mr. Muhammad Naseem Akhtar Khan, Civil Judge, on 1-7-1986. The trial Court did not issue any notice to the petitioners and took up the case on 1-7-1986. The Court passed an ex parte decree against the petitioners on 1-7-1986.
Thereafter, on 27-7-1986, the petitioners applied for setting aside the ex parte decree but their prayer was refused by the trial Court on 19-10-1987.
3. The learned counsel for the petitioners contends that notwithstanding the earlier order for ex parte proceedings, the petitioners were entitled to join the proceedings before the transferee Court.
However, no notice was given to the petitioners and they were condemned unheard before the trial Court. He places reliance on PLD 1950 Lahore 82, PLD 1985 Lahore 327 and PLD 1962 Lahore 1041.
On the other hand, the learned counsel for the respondents submits that the transferee Court was not bound to issue notice to the petitioners because in the trial Court, both of them were proceeded against ex parte.
4. I have heard the learned counsel for the parties and perused the record.' It is settled proposition of law that the parties to a suit are entitled to notice by the transferee Court. Notwithstanding the order for ex parte proceedings the petitioners continued to be parties to the suit and must have been intimated by the transferee Court about the date of hearing of the suit. It is so required even by paragraph 6, Chapter 13, Volume I of High Court Rules and Orders which reads as under: "When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which the case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to, which the case is transferred."
Thus after an order for ex parte proceedings the Court cannot treat the defendant as if he was no longer a party to the suit. In the case of Krishen Lal Malhotra v. Madan Lal and 2 others (PLD 1950 Lahore 82) it was held as under:- "A defendant by his failure to appear at one stage of the hearing in the case does not become an outlaw. He is still a party to the litigation; the evidence is led against him and the decree is ultimately passed against him. He can appeal from the decree or take other appropriate steps to ensure that every thing was done in his presence. Logic and common sense too are in favour of this view."
' In Azmat Begum and others v. Chief Settlement and Rehabilitation Commissioner, Pakistan and others (PLD 1%2 (W.P.) Lahore 1041) the view expressed was that the decree passed by the transferee Court without notice to the defendant against whom ex parte proceedings had been ordered was illegal. In Col. (Rtd.) Ashfaq Ali Sayyed v. Akram H. Sayyed and 10 others (PLD 1989 Lahore 255) it was held that despite being proceeded against ex parte a defendant remained for all practical purposes of party to the proceedings; his name remained on the record and he was entitled as of right to appear before the Court and join proceedings at any time. In the present case, without issuing any notice to the petitioner, the learned Civil Judge proceeded to pass an ex parte decree. The petitioners were entitled to join the proceedings and address arguments on the basis of the material available on the record. Even this opportunity was denied to the petitioners.
Hence, I accept this revision petition, set aside the judgments and decrees of the Courts below and remand the case to the trial Court. The trial Court shall issue notice to the parties and proceed in the matter from the stage of the ex parte evidence and decide it on merits after hearing the parties in accordance with the law. The parties are left to bear their own costs.