' Faqir, Raja and Mst. Soni brought a suit for declaration and perpetual injunction relating to suit land, measuring 33 Kanals, 14 Marlas, survey numbers 177, 180 and 181, village Chak-muqum, Thesil Hattian. Title in the suit land was asserted by virtue of oral sale and adverse possession. It was alleged that Summundur Shah, Qasim Shah, Ali Haider Shah and Karim Haider Shah, owners of the land, were excluded to claim their ownership by virtue of adverse possession of the plaintiffs. Thus, the entries in the record of rights relating to ownership of the defendants were liable to correction in favour of the plaintiffs. As the defendants failed to appear to defend the suit, they were proceeded ex parte and ex parte decree was passed against them on November 11.0, 1979. The ex parte decree was challenged in revision before this Court on March 16, 1983. The petition was returned on January 2, 1984 for invoking the jurisdiction of proper forum in the light of the provisions contained in Rule 13 of Order 9, Civil Procedure Code. The appellants presented memorandum of appeal, accompanied by a copy of the petition, on January 3, 1984, before the District Judge, Muzaffarabad. The appeal was dismissed for want of limitation, on July 2, 1987.
2. The Learned counsel for the appellants has assailed the finding of the District Judge on the following grounds:
(i) that ex parte decree was void ab initio, as such the question of limitation was immaterial;
(ii) that there was sufficient cause for condoning the delay, and
(iii) That the ex parte decree rested on fraud as a counter-suit in respect of the same property between the same parties was already in progress before the Court and the decree-holders deliberately withheld the information of institution of the suit and manoeuvred ex parte proceedings against their opponents.
' Reference was made to PLJ 1981 AJK 131, PLD 1975 AJ&K 114, PLD 1983 AJ&K 3, 1986 CLC 2963, PLD 1969 Lahore 1039, PLD 1975 Lahore 707, PLD 1964 SC 97 and PLD 1970 Lahore 6.
' Mr. Arshad Gillani, the learned counsel for the respondents supported the impugned order and contended that the appellants failed to show sufficient cause for condonation of delay as required under the provisions of Section 5 of the Limitation Act. Reliance was placed on PLD 1989 SC (AJK)
561, 1978 SCMR 367, PLD 1967 AJ&K 47, PLD 1966 Lah. 542, PLD 1966 BJ 14, PLD 1971 Lah. 332, PLD 1984 SC (AJ&K) 51, PLD 1984 SC (AJ&K) 104 and PLD 1983 SC (AJ&K) 25.
3. When an ex parte decree is passed, the judgment-debtor may seek one of the remedies:
(i) by moving an application under Rule 13 of Order 9, Civil Procedure Code, in the Court which passed the decree, for an order to set it aside;
(ii) by preferring an appeal from the decree;
(iii) by seeking a review; or
(iv) by instituting a suit on the ground of fraud.
' All the remedies are concurrently open to the defendant (judgment-debtor). In the instant case, the defendants/appellants preferred appeal before the District Judge. Limitation for the appeal was 30 days from the date of the decree. Thus, prima facie, the appeal was beyond time. In such situation, it was enjoined upon the appellants to show sufficient cause for condonation of the delay.
4. Ordinarily, delay is condoned on an application under section 5 of the Limitation Act, on the satisfaction of sufficient cause, thereby showing that the delay occasioned on account of restraint or prohibition by the factors beyond the control of the party. In order to seek condonation of delay, a formal application under section 5 was necessary. In exceptional circumstances, when no formal application under section 5 is moved but the delay is sought to be condoned for reasons described in the memorandum of appeal, it is permissible to consider such explanation amounting to sufficient cause for the purpose of condonation of delay. The rules of procedure are primarily framed to advance the cause of justice. Strict adherence to the requirement of formal application is not necessary when the omission to formally move, according to such rules, is not mala fide or deliberate. Thus, when no formal application under section 5 is moved but in the memorandum of appeal, it is well-explained as to how the appeal is presented beyond time, it is permissible to look into such circumstances. In case the Court is satisfied from the circumstances described in the memorandum of appeal that such circumstances constituted sufficient cause, Court is empowered to condone the delay in suitable cases.
5. In present case, the learned District Judge agreed that the limitation started running from the date of knowledge of the defendants and he also allowed condonation of the period spent in prosecuting the revision petition before this Court, but despite that, the appeal was found beyond the time of 30 days. The appellants were unable to satisfy the Court for such delay.
6. To meet the challenge of limitation, Mr. T.H. Tariq argued that the ex parte decree was void ab initio, as such the question of limitation was immaterial in this case. The authorities relied upon by the learned counsel in support of the contention were not helpful to him as in all those cases, the impugned orders were declared void for want of jurisdiction. There is no cavil with the proposition that when an order is void ab initio, limitation loses its importance. In present case, the ex parte decree cannot be construed as void ab initio as it was not passed by a Court having no jurisdiction in the matter. Conversely, the Court had the jurisdiction but the decree was passed in derogation to the rules of procedure, as such it was a voidable decree. A voidable decree carries its effect unless and until it is annulled in due course of law. It is, therefore, wrong to suggest that the decree being void ab initio, was not subject to limitation in an appeal against it.
7. A perusal of the record shows that the suit of the plaintiffs-respondents was instituted in the Court of Sub-Judge, Hattian, on May 30, 1978. The counter-suit of Ali Haider Shah and Karim Haider Shah for possession of the suit land was instituted on October 3, 1978. In the countersuit, the defendants, who were plaintiffs in the matter under consideration, appeared in the Court on November 4, 1978. They presented the written statement on May 26, 1979. It is evident from the record that the trial Court was not apprised of institution of the counter-suit. Thus, Faqir, Raja and Mst. Soni deliberately withheld the information of institution of their suit in respect of the land in question in the same Court. However, on the report of the process-server that defendants Nos.1 and 2 had abandoned their residence, substituted service was ordered through proclamation in a newspaper. The proclamation was issued for appearance of the defendants of November 25, 1978.
None of the defendants appeared on that date but the case was adjourned to December 6 as the presiding officer was on leave. On that date, again, none of the defendants was present and the case was adjourned to April 22, 1979 when ex parte was ordered against defendants Nos.1 and 2.
Defendants Nos.3 and 4 were reported to have disappeared from the village. Substituted service was ordered and the case was adjourned to September 22, 1979. On that date, ex parte proceedings were ordered against defendants Nos.3 and 4. The following points emerge from the aforesaid position:
(i) The plaintiffs-respondents committed a fraud on the Court by withholding the information of institution of their suit and also by maneuvering false reports of the process-server, suppressing thereby the whereabouts of the defendants; and
(ii) illegal procedure was adopted by the trial Court in making ex parte order resulting in ex parte decree against the defendants-appellants.
8. To deal with the point of fraud, it is evident from the record that both the suits by the opposite- parties were instituted in the same Court. The parties and their counsel prosecuted their suits on every date of hearing. Thus, it was in the knowledge of the plaintiffs-respondents that the defendants-appellants were definitely residing in their ordinary place of residence and were appearing in the Court no the dates of hearing in their suit. Likewise, the plaintiffs-respondents withheld the information of institution of their suit during their appearance while defending the counter-suit. They presented their written statement in the counter-suit but it contained no averment relating to institution of their suit. This was a deliberate and well-planned overt act of the plaintiffs-respondents. Thus, deception was patently established in the matter.
9. Ex parte order against a defendant is made when the summons is duly served and the defendant fails to appear in the Court on the day when the suit is called on for hearing. The rules relating to service of summons are prescribed under Order V of the Code. The modalities of service of summons on defendant are contemplated under various rules. Rule 12 postulates that summons shall be served on the defendant in person unless an agent was empowered by him to accept the service. In such case, service on the agent of the defendant was sufficient. Where the defendant cannot be found and has no agent to accept the service of summons, rule 15 provides that service may be made on any adult male member of the family of the defendant who reside with him.
Where the defendant or his agent or male member of his family refuses to sign the acknowledgment or cannot be found despite due and reasonable diligence, then service has to be effected by affixing copy of the summons on the outer door or other conspicuous part of the house in which the defendant ordinarily resided or carried on business or personally worked for gain. In absence of all the aforesaid factors, service can be made by affixing a copy of the summons on some conspicuous place in the Court-house or the house in which the defendant was known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court may think fit. In present case, the summons was issued only once. The process-server made the report that the defendants had deserted their place of residence and their whereabouts were unknown. On such report, substituted service was directed through proclamation published in a newspaper. It is evident that the presiding officer failed to advert to different modes of due service contemplated by law and resorted to the ultimate method of substituted service through proclamation published in a newspaper. Thus, it was a clear case of derogation to the prescribed rules of affecting due service of summons on the defendant.
10. The other aspect of the illegality committed by the presiding officer is that the defendants were not proceeded against ex parte on the day on which they were directed to appear before the Court. The rule of law is that where the defendant, when duly served, failed to appear in the Court when the case is F called on for hearing, the Court may proceed ex parte against him on that day.
The Court cannot proceed ex perte against the defendant on the day for which he was not duly served to appear personally or through counsel. In present case, as noticed earlier, defendants Nos.1 and 2 were served through proclamation in a newapaper to appear in the Court on November 25, 1978. No ex parte order was made against them on that day. Rather, the ex parte order was made on April 22, 1979. The defendants were not served to appear on that day, thus, the ex parte order made against defendants Nos.1 and 2 was obviously illegal. Likewise, in the case of defendants Nos.3 and 4, they were served through substituted service by proclamation published in a newapaper to appear in the Court on September 22, 1979. The proclamation was published but it was not received in the office. The defendants were not proceeded against ex parte and the case was adjourned to October 21. They were proceeded against ex parte on October 21 instead of September 22. As they were not duly served to appear in the Court on October 21, the ex parte order made against them on that day was unlawful. Thus the ex parte orders made against the defendants on the dates for which they were not duly served to appear before the Court, were quite unlawful, as such unsustainable.
11. The proposition received consideration of the Supreme Court of Pakistan in Muhammad Swaleh's case, PLD 1964 SC 97, Mr. Justice (late) B.Z. Kaikaus, an eminent jurist, resolved the controversy as: "As rule 1 of Order IX will show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, rule 2 provides that if a party fails to appear on 'the day to which the hearing of the suit is adjourned', the Court may proceed to pass orders in accordance with Order IX. Order IX, rule 6 and Order XVII, rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course 'adjourned' means adjourned by the Court. We would hold that the order passed on the 22nd April, 1960, directing ex parte proceedings was not a valid order.
' It is not necessary however to decide whether the order of the 22nd April, 1960, and the ex parte decree of the 27th April, 1960, are wholly void for there is no doubt as to their being not in accordance with law and this is a sufficient ground for their being set aside."
' In that case, the proceedings were adjourned for evidence of plaintiff to April 21, 1960. That day was subsequently declared a holiday and the Court was closed. The file was put up before the Sub-Judge on 22nd of April. On that day, the counsel for the plaintiffs was present. The defendants and their counsel were absent. The Sub-Judge proceeded ex parte-against the defendants and adjourned the case for ex parte evidence of the plaintiffs. On April 27, to which the,case was adjourned, again, nobody appeared for.The defendants. One of the witnesses of the plaintiffs was examined and ex parte decree was passed the same day. On July 29, the defendants moved an application under section 151, C.P.C., for recalling the ex parte decree and the ex parte order passed on April 22. 'The cause shown for setting aside ex parte decree was the mistake of the junior counsel who mentioned the name of wrong Court in his diary where the suit was previously pending. The plaintiff-decree-holders opposed the application, among others, on the ground of limitation. The Sub-Judge granted the application but the order was reversed by the learned Judge in the High Court. The finding of the High Court was reversed in the Supreme Court in the aforesaid manner.
12. The dictum of the Supreme Court provides ample guidance to hold that ex parte orders passed against the defendants on April 22, 1979 and October 21, 1979 were not in accordance with law; as such the same are liable to be set aside.
13. The aforesaid reasons lead to the inference that the trial Court proceeded against the defendants illegally and its action resulting in ex parte decree was quite unlawful.
14. It is noticed that the ex parte proceedings resulting in ex parte decree were perverse, preposterous and illegal. It is, therefore, enjoined upon this Court to reverse the illegal action instead of allowing it to perpetuate. This is quite expedient as the counter-suit for possession is still in progress and in case the plaintiffs in that suit, who are defendants-appellants in the present case, ultimately succeed in securing a decree in their favour, that decree shall obviously be in conflict with the decree in dispute. The disastrous results are quite evident. It is, therefore, quite in the interest of justice to demolish the illegal ex parte decree.
14-A.The order of the District Judge is subject to second appeal under the provisions of section 100 of the Civil Procedure Code. But having seen that the ex parte decree cannot be annulled for want of limitation, it is permissible to reverse it in exercise of revisional jurisdiction of this Court. The revisional jurisdiction, being very wide and comprehensive, enables this Court to put an end to an illegal decree. Section 115 of the Code, as in force in Azad Jammu and Kashmir, empowers this Court to revise an order of the subordinate Court when it appears that the subordinate Court:--
(a) exercised jurisdiction not vested in it by law; or
(b) failed to exercise jurisdiction so vested; or
(c) acted in exercise of jurisdiction illegally or with material irregularity; or
(d) caused failure of justice.
These provisions, coupled with the provisions of section 35 of the Courts and Laws Code Act, empower this Court to rectify an error, mistake, illegality or material irregularity resulting in miscarriage of justice. These powers may be invoked on the application of an aggrieved party or suo motu, irrespective of limitation. The view finds support from Muhammad Siddiq's case, 1986 CLC 2963.
15. The aforesaid analysis of the proposition leads to a conclusion favourable to the appellants. The appeal is treated as revision. The orders and decrees of the District Judge and the Sub-Judge are hereby set aside and the case is remanded to the Sub-Judge to proceed with it from the stage of abovementioned illegality. It is further ordered that both the suits being in respect of common property and between common parties, are hereby consolidated and the same shall be disposed of simultaneously. The parties are directed to appear before the subordinate Court on October 28, 1991. No order as to costs.
Case remanded.
1991 CLC 33 [Lahore] Before Gul Zarin Kiani, J HASSAN DIN and another---Petitioners versus JALAL DIN and 2 others---Respondents Civil Revision No,867-D of 1981, heard on 9th October, 1991.
(a) Specific Relief Act (I of 1877)--- ----S. 42---Civil Procedure Code (V of 1908), O.IX, R.6(1)(a)---Suit for declaration of ownership rights and in the alternative for acquisition of prescriptive title thereto, decreed in terms of O.IX, R.6(1)(a), Civil Procedure Code, 1908---Validity---Provision of O.IX, R.6(1)(a), C.P.C. Although vested the Court with discretion to decree the suit ex parte, yet same was not compulsive i,e., Court was not obliged to decree plaintiff's suit without recording evidence---Discretion vesting in Court, like all public powers must be exercised reasonably, fairly and justly---From the nature of powers vested in and to be exercised by the Court, it was obliged to examine carefully each and every case placed before it to find, whether evidence was or was not to be taken for decreering the suit in the absence of defaulting defendant---Rule of caution and propriety required taking of some proof from plaintiff for satisfying the Court that the case set up before it was true---Wholly uncorroborated averments, in plaint would not have been enough for the purpose of granting ex parte decree. [p. 37] A
(b) Civil Procedure Code (V of 1908)--- ----O.IX, R.13 & S.115---Application for setting aside ex parte decree---Summary disposal--- Validity---Application for setting aside ex parte decree which involved decision on disputed questions of fact and law ought not to have been disposed of summarily without proper inquiry by the Court---Defendants were entitled to an opportunity to substantiate averments made by them in application for setting aside of ex parte decree and also the opposite-party to a like chance for rebutting the material brought against them---Course adopted by Court for deciding such application on hearing arguments only, was not proper one---Two material defects of procedure existed in the ex parte decree itself relating to summary disposal of application for setting aside of ex parte decree---Said defects were of a vital nature and of such a magnitude that those could not be lightly ignored or by-passed---Plaintiff got the decree without any proof and defendants were denied the right to have it set aside without an opportunity for substantiating their allegations by leading evidence---In order to avoid further prolongation of litigation and to promote cause of decision on its merits, instead of remitting application for setting aside ex parte decree for its decision afresh in accordance with law and the observations made herein, Court decided to set aside ex parte decree itself, which was passed without taking evidence in support of it---Suit was to be retried on merits in accordance with law. [p. 38] B Ch. Muhammad Hassan for Petitioners.
Rana Nasrullah Khan for Respondent for Legal Heirs of Respondent No,1.
C.M. Latif for Legal Representatives of Respondents Nos.2 and 3.
Date of hearing: 9th October, 1991.
' This civil revision arises out of a civil suit for declaration of ownership rights, in respect of a vacant plot of small size, situated in village Kotli Bhatta, Tehsil and District Sialkot, and, for confirmation of possession on it, and, in the alternative, for acquisition of prescriptive title to it, because of holding it in adverse possession for a requisite period.
2. Plaintiff's case was that he was owner in possession of the plot; defendants had no right or interest therein and in case of non-proof of his ownership, plaintiff stated that he had acquired prescriptive title to the plot in question by holding it adversely for a period exceeding twelve years.
Plaintiff further stated that defendants Nos.1 and 2 were trying to interfere with his possession on the plot in question and had gathered bricks at the spot for raising constructions on it. Civil suit was instituted on 15-5-1979, in Civil Court at Sialkot. Defendants Nos. 1 and 2 namely Hassan Din and Muhammad Hussain submitted joint defence. It was submitted that they held possession of the plot in question as its true owners and the plaintiff had by colluding with defendants Nos.3 and 4 commenced civil action to cause harassment to them. On 17-12-1979, civil suit was adjourned to 26-2-1980 for filing of written statement by defendants Nos.3 and 4. On the adjourned date, since defendants Nos.3 and 4 did not appear. They were proceeded against ex parte, whereas the other defendants were represented by their counsel whose presence was marked in the order-sheet by the trial Court and civil suit was adjourned to 10-2-1980 for settlement of issues on merits. On this date of hearing, since all the defendants were found absent when the suit was called on for hearing, the trial Court proceeded ex parte against them, and, without recording evidence, in terms of Order 9, Rule 6(1)(a), C.P.C. Decreed the suit ex parte. On 16-31980, defendants Nos.1 and 2 applied for setting side of the ex parte decree passed against them on 10-2-1980. Plea taken by them for setting aside of ex parte decree was that on 17-2-1979, civil suit was adjourned to 26-2- 1980, and the same date of hearing was recorded by their counsel in his diary and on his brief cover. On 26-2-1980, defendants Nos. 1 and 2 attended the Court but finding their case missing from the cause-list of the Court, they inquired from Reader to the Court about actual date of hearing fixed in their suit who told them that the date of hearing fixed in the suit was 26-3-1980 and the same date was again recorded in the diary of their counsel. On 15-3-1980, plaintiffs son proclaimed in the village that the suit had already been decreed in favour of his father. Upon gaining this information, defendants Nos. 1 and 2 attended the Court on 16-3-1980, and, upon inquiry, true facts were revealed to them. On the same day, i,e. 16-3-1980 defendants submitted an application under Order 9, Rule 13, C.P.C. For setting aside of ex parte decree passed against them.
These facts about misconception relating to dates of hearing were enumerated in the application with details. It may be observed here that the application for setting aside of the ex parte decree was filed by the same learned counsel, who conducted the defence of the defendants in the civil suit and thus subscribed to the truth of the averments in it. Additionally, averments in the application were supported by the affidavits of the defendants. Plaintiff contested the application for setting aside of the ex parte decree and refuted the averments contained in it. Defence taken to the application was that it was barred by limitation and the dates of hearing given in the application did not correspond with the acutal dates of hearing fixed in the suit by trial Court. The trial Court without raising issues on controversial points and giving opportunity for substantiating them held that the application was barred by limitation, and, consequently, dismissed it on 7-6- 1980. Thereafter, defendants Nos. 1 and 2 preferred an appeal. It came to be heard by an Additional District Judge who agreed with the trial Court, maintained its order and dismissed the appeal on 27-5-1981. Thus, the Court is invited to revise the orders passed in the Courts below by which the ex parte decree made against the defendants was not set aside on account of bar of limitation.
3. On behalf of the defendants-petitioners, their learned counsel raised five contentions:--
(i) Under Order 9, Rule 6(1)(a), C.P.C., the trial Court, without taking evidence, could not have passed a decree on the adjourned date of hearing in the suit and as such, decree passed in violation of the Rule shall be held void.
(ii) Even, if it be assumed for sake of argument that the Court had jurisdiction to make such a decree, the discretion vesting in it by Rule was not correctly exercised, for passing of an ex parte decree without taking any proof in support of it.
(iii) Even, in the event of ex parte proceeding and consequent decree, there must be some material before the Court to satisfy its judicial conscience that the case set up was true and not false. The judgment given by the Court without evidence in its support is not a valid dispensation.
(iv) Application under Order 9, Rule 13, C.P.C. Was in the nature of original proceeding, and, without settlement of issues covering controversial points between the parties and taking evidence from them in support of their varying versions, could not have been decided. The Court without adopting such a procedure acted with material illegality in exercise of its jurisdiction.
(v) Period of limitation for setting aside of the ex parte decree, in the existing circumstances, was governed by residuary Article 181 of.
' Limitation Act, 1908 and not Article 164, as was held in the Courts below.
4. In support of his above contentions, learned counsel referred the Court to the cases in Sh. Inayat Ullah v. Mian Abbas Ahmad Khan and others' (1970 SCMR 130), Shamroz Khan and another v.
Muhammad Amin and others' (PLD 1978 SC 89), `M/s. Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan' (PLD 1981 SC 21), Kamran Co. And others v. M/s. Modern Motors and another' (PLD 1990 SC 713), 'Lahore Municipal Corporation v. Muhammad Sarwar' (1990 CLC 379), 'Sain Akhtar v. Muhammad Yousuf and 2 others' (1990 MLD 2135).
5. Conversely, the learned counsel for the legal representatives of the original plaintiff, since deceased, defended the impugned orders and submitted that not only that the application for setting aside of the ex parte decree was hopelessly barred by limitation but there was no sufficient cause shown for its condonation and the facts stated to support setting aside of the ex parte decree were all untrue. In support of the plea of bar of limitation, learned counsel referred to rulings of this Court in 'Col. Atta-ur-Rehman v. Ahmad Yar Khan and 3 others' (PLD 1980 Lah. 181), Gulzar v.
Hata, etc.' (1988 MLD 1518) and `M/s. Lahore Art Press through its Proprietor Muhammad Mohsin and another v. National Bank of Pakistan' (PLD 1990 Lahore 300), and as for power to pass ex parte decree, without recording evidence under Order 9, Rule 6 (1)(a), C.P.C. Relied upon the case of Sikandar Khan alias Makhu v. Barkhurdar and 3 others (1981 CLC 183).
6. Upon hearing the learned counsel for the parties at quite some length, examination of original records and the case-law referred to, impugned decisions of the Courts below are not found sustainable. As observed in the opening portion of the judgment, plaintiff claimed ownership of the plot in question and confirmation of his possession on it, and, in the alternative, acquisition of prescriptive title to it, but neither annexed any proof of his ownership nor possession to the plaint.
He also gave no evidence in support of his above two-fold claims. On the contrary, defendants Nos.
1 and 2 pleaded their ownership of the plot and actual possession on it. Apart from an important question, whether Order 9, Rule 6(1)(a) applied to the first or adjourned hearing of the suit, more important question would be, whether in the prevailing circumstances, trial Court could have proceeded to decree the suit ex parte, without taking an iota of proof from the plaintiff to support his ownership of the plot and adverse possession on it, if any, Rule 6 imported a discretion in this behalf and was not compulsive, meaning thereby, that it was not obligatory for the Court to decree the suit without recording evidence, in all and sundry cases, regardless of their merits. Discretion vesting in the Court like all public powers must be exercised reasonably, fairly and justly. From the nature of the power vested in and to be exercised by the Court, it is clear that it is obliged to examine carefully each and every case placed before it to find, whether evidence is or is not to be taken for decreeing the suit in the absence of the defaulting defendant. Rule of caution and propriety requires taking of some proof from the plaintiff for satisfying the Court that the case set up before it was true. Wholly uncorroborated averments in the plaint may not have been enough for the purpose. Similarly, application for setting aside of the ex parte decree which involved decision on disputed questions of facts and law ought not to have been disposed of summarily without a proper inquiry by the Court. Defendants-applicants were entitled to an opportunity to substantiate the averments made by them in the application for setting aside of ex parte decree and also the opposite-party to a like chance for rebutting the material brought against them. The course adopted by the Court for deciding of the application on hearing arguments only, in my opinion, was not proper one. So, there were two material defects of procedure; first existed in the ex parte decree istelf, and second related to the summary manner of disposal of the application for setting aside of the ex parte decree. Both the defects were of a vital nature and of such a magnitude that those could not be lightly ignored or by-passed. Plaintiff got the ex parte decree without any proof and the defendants were denied the right to have it set aside without an opportunity for substantiating their allegations by leading evidence. In order to avoid further prolongation of litigation and to promote the cause of decision on its merits, instead of remitting the application for setting aside of the ex parte decree for its decision afresh in accordance with law and the observations made above, I have decided to set aside the ex parte decree itself, which was passed without taking evidence in support of it.
7. In view of what has gone before, civil revision is allowed, ex parte decree dated 10-2-1980 passed by the trial Court alongwith its subsequent order dated 7-6-1980 and that of the lower Appellate Court dated 27-5-1981 are all set aside. Net result of this would be that the suit shall be retried on merits in accordance with law, in presence of the parties by allowing them a reasonable opportunity of defence. In view of the nature of ex parte decree, its partial setting aside would not suffice. Therefore, it is set aside in its entirety, so that the merits of the case could be gone into afresh. As for costs in this Court, there shall be no order.
8. The case shall now go back to learned Senior Civil Judge, Sialkot. Parties shall appear in his Court on 30-10-1991. Learned Civil Judge shall have the option either to keep the suit for trial on his own file or entrust it to any other Civil Judge in the district for its trial. There shall be an attempt for an expeditious decision of the suit.