Facts giving rise to this civil revision are that the petitioners, Khera and four others, brought a suit.
Against the respondent, Sarblund, and nineteen others, including the resondents, Muhammad Sadiq and five others, for a declaration to the effect that they were owners of certain land and were also in occupation thereof. They also prayed for permanent injunction, by way of consequential relief, restraining the defendants in that suit from interfering with their possession over the land in dispute. It was alleged by the petitioners that they had purchased the land in question from six persons, namely, Barkat Ali, Mst. Nawab Bibi, Mst. Resham Bibi, Mst. Maryam Bibi and Mst. Karam Bibi, and had thus become owners thereof but the defendants in the suit were illegally interfering with their possession. Syed Abu-ul-Hassan, Advocate, entered appearance on behalf of the defendants, except Fazal Ahmad, a Sub--Inspector of Police. The said learned Advocate, however, did not file written statement on behalf of his clients with the result that they were proceeded against ex parte. Fazal Ahmad.Did not appear in the suit personally or through any counsel and he too was, therefore, proceeded against ex parte. Mr. Muhammad Ashraf Butt, who heard the -suit as a Civil Judge, recorded ex parte evidence of the plaintiffs and decreed the suit ex parte. Thereafter Muhammad Sadiq and Muhammad Ashiq brought another suit challenging the Ex parte decrees on the ground of fraud. The petitioners before me, and respondents Nos.3 to 6 Mst. Karim Bibi and others, were defendants in the subsequent suit. In that suit, which was resisted by the petitioners, only plea of the respondents Nos. I to 3 was that out of them, respondents Nos. I and 2, namely, Muhammad Sadiq and Muhammad Ashiq, were detained in the jail when the suit, as against them was decreed ex parte. Their plea of fraud found favour with another Civil Judge of Lahore, namely, Mr. Razi Abbas Bokhari, who heard the subsequent suit, and consequently, that suit was decreed.
The petitioners went in appeal before an Additional District Judge, Mr. Jehangir Pervaiz but without succeess. Hence this civil revision.
2. It was contended by the learned counsel for the petitioners that the only plea of fraud attributed to the petitioners was that respondents Nos.1 and' 2 were confined in the jail when substituted service was effected on them and thus the ex parte decree was fraudulently obtained in the first suit. In this connection, it was submitted by the learned counsel for the petitioners that the respondents Nos.1 and 2 were represented by Syed Abul-ul-Hassan Advocate, and he did enter appearance before Khawaja Muhammad Ashraf, Civil Judge, on some dates and, therefore, even if there was anything wrong with the substituted service effected on respondents Nos.1 and 2, that was of no consequence. According to learned counsel for the petitioners if Syed Abu-ul--Hassan did not file written statement or neglected to appear before the learned trial Court it did I ot amount to fraud on the part of the petitioners. His argument was that the two Courts below had committed material irregularity in holding that the decree passed in the first suit was based on fraud and as such the judgments and decrees under revision were not sustainable.
3. On the other hand, it was maintained by learned counsel for the respondents that respondents Nos.1 and 2 were confined in the jail when ex parte decree was passed. His contention was that Syed Abu-ul-Hassan was not appointed as an Advocate by the said two respondents and that the substituted service effected on them was against law. He, therefore, pleaded that the findings of fraud recorded by lower Court were correct and there was nothing wrong with the impugned judgments and decrees.
4. 1 have looked into the power of attorney filed by Syed Abu-ul-Hassan,, Advocate, in the first suit. It bears thumb impressions of respondents Nos.1 to 3, namely, Muhammad Sadiq, Muhammad Ashiq and Bagh Din. Respondents Nos.2 and 3, namely Muhammad Ashiq and Bagh Din did not enter the witness box to say that they had not executed the power of attorney in favour of Syed Abu-ul- Hassan Advocate. Respondent No.1, Muhammad Sadiq, appeared as P.W. 7 and frankly admitted that he had appointed Syed Abu-ul-Hassan as his counsel. Thus, there is no force in the argument of learned counsel for respondents Nos. I and 2 that they had not appointed Syed Abu-ul-Hassan as their counsel.
5. Another point canvassed by learned counsel for the petitioners was that respondents Nos.1 and 2 were lodged in the jail when Syed Abu-ul-Hassan was allegedly appointed as their counsel but the procedure laid down in the relevant jaP rides was not followed in the matter of his appointment.
The power of attorney appears to have been executed on 7th November 1969 and it is in the statement of a witness, namely, Muhammad Ali (P.W.4), produced by respondents Nos.1 and 2, that they (respondents Nos.1 and 2) were confined in jail in March,1970. This clearly shows that the power of attorney was executed before they were sent to jail. In the circumstances, the rules relating to appointment of counsel by person confined in the jail are not attracted to the present case and, are, therefore, of no help to the respondents.
6. As indicated above, the only fraud attributed to the petitioners is that ex parte decree was passed agam'st respondents Nos.1 and 2 without adopting proper proce~ure for their service but it has been seen that they were represented by a duly appointed counsel. Thus, the defect in their service' if A any, is of no legal effect. However, if their learned counsel did not represent them properly, the petitioners are not to blame for the consequences of his neglect. In this view of the matter, there was no fraud on the part of the petitioners and the finding of the learned lower Courts that they obtained the decree by fraud is not sustainable.
7. In result, I accept this civil revision with costs, set aside the judgments and decrees passed. By the two Courts below and dismiss the suit brought by respondents Nos.1 and 2, namely, Muhammad Sadiq and Muhammad Ashiq.