1. ' This is a plaintiffs application in revision under section 115 of Civil P.C. from the order of the Court below dated 18-6-1991 for setting aside of the ex parte decree, passed in appeal, on 18-5-1982. The facts bearing upon the points involved for decision in it may briefly be stated as follows: ' Shandad was the Lambardar. He held 203 Kanals, 14 Marlas of land in Chak No, 623/GB, Tehsil Samundari on Mule-Breeding Scheme. Shandad died in 1947. Petitioner succeeded to the office of Lambardar held by him and also the Mule-Breeding Grant of the aforesaid land. There was no order for appointment of the petitioner as Lambardar, in place of his deceased father. Nor was there any order allotting the above land to him under Mule-Breeding Scheme. It appeared that the grant was resumed by the Collector, Faisalabad. The order for resumption of the grant was also not available. Petitioner was recorded in illegal possession of the State land. He was shown to have filed an appeal against the resumption order before the Commissioner of the Division but neither the appeal nor the order passed on it was forthcoming. Learned counsel for the petitioner was unable to assist on it. Out of the resumed land, 100 Kanals, 16 Marlas of land in Sq. No,15 was allotted to Muhammad Bashir Khan, as an evictee from Gujranwala Cantonment. Allottee was resident of Gujranwala and had no residential house in Chak No, 623/GB, Tehsil Samundari.
2. ' On 8-3-1976, petitioner brought a suit against the Province of Punjab and Muhammad Bashir, respondent No, 2 for declaration to the effect that he as Lambardar, was in cultivating possession of the Lambardari grant in Chak No, 623/GB, Tehsil Samundari and for setting aside of the allotment of land in favour of respondent No,2. He gave the address of respondent No,2 as resident of Chak No, 623/GB, Tehsil Samundari, District Lyallpur. Province of Punjab seemed to have been served and filed its written statement, but defaulted in appearance thereafter. It was submitted that the land in suit was given on Theka to the petitioner for a period of five years, which had run out in Rabi, 1973 and thereafter, the petitioner had no right to hold on to the State land. Respondent No, 2 was proceeded against ex parte on 5-4-1976, on the basis of alleged service of summons upon him. On the strength of ex parte proof consisting of two witnesses and the statement of petitioner, the trial Court decreed the suit in favour of the petitioner on 22-7-1980. However, it found "Since no proof of allotment of the suit land to the defendant No, 2 has been adduced by the plaintiff in the case, therefore, no relief with regard to that can be granted to him. To this extent, his suit is dismissed. However, if the allotment has been made in favour of defendant No, 2, then since I have held resumption of the land from the name of the plaintiff as being illegal, the same transfer order will also fall through". Since the decree was partial and contradictory, petitioner preferred an appeal in the District Court, at Faisalabad. Respondent No, 2 was served for 13-1-1981 through citation in daily Afaq, Lahore on 7-1-1981. Thereafter, the hearing of the appeal was transferred to another Additional District Judge, Faisalabad. He issued notice pairve to the respondent for 31-1- 1981. Since the notices could not be served for the aforesaid date of hearing, these were repeated for 1-3-1981. Respondent was then served by affixation and was proceeded against ex parte, on 1- 3-1981. Province of Punjab also did not appear. On 18-5-1982, Additional District Judge, Faisalabad allowed the appeal and decreed the suit in full to the petitioner.
3. ' As the decree was ex parte against the Government of Punjab and respondent No,2, latter applied for setting aside of it, on 26-1-1989. It was averred that the applicant was not served in the appeal; his address given for service in the appeal was incorrect; he resided at Gujranwala and had no residence in Chak No, 623/GB; petitioner occupied the land as his tenant; respondent had brought a suit for recovery of produce against him; it was decreed on 9-6-1976 against him for a sum of Rs, 5,311.77 by Assistant Collector 1st Grade, Samundari and the decree was realized from him; applicant had no knowledge of the decree, till he was confronted with it in the . month of January, 1989 in the Court of Colony Assistant where the applicant had applied for grant of proprietary rights in respect of land allotted to him. It was submitted that ex parte decree in appeal was product of gross suppression of truth and fraud, inasmuch as, the peititioner gave incorrect address of respondent No, 2 for procuring false return of service to achieve an easy ex parte success.
4. Alongwith the application for setting aside of the ex parte decree, an application under section 5 of the Limitation Act, 1908 was also filed for condonation of delay. It was supported by the personal affidavit of respondent No,
2. On 28-3-1991, the lower Court framed following issues for determination:--
(1) Whether, the application is within time? OPP.
(2) Whether, there are sufficient grounds, to set aside the ex parte decree/order dated 18-5-1982, passed by Malik Muhammad Afzal, the then Additional District Judge, Faisalabad, if yes, on what terms? OPP.
(3) Relief.
5. ' Respondent No,2 who was applicant in the lower Court gave evidence of Mehdi Shah P.W.1 and himself appeared as P.W.2 and relied upon as many as sixteen documents marked Exh. A-1 to Exh.
6. A-16. Petitioner gave no evidence. His application for taking evidence on commission was turned down in the lower Court. He refused to record his statement through his Mukhtar.
7. ' Upon scrutiny of the evidence brought on record, lower Court set aside the ex parte decree, on 18- 6-1991, and restored the appeal for its hearing and decision on merits in presence of the parties. It was held that respondent No,2 was not served and the petition filed by him for setting aside of the ex parte decree was well within time under Article 169 of the Limitation Act, 1908 from the date of the knowledge of the decree gained by him. It is this order that is sought to be revised at the instance of the petitioner.
8. ' It was urged by the learned counsel for the petitioner that the petition for setting aside of the ex parte decree passed in appeal was miserably barred by limitation and there was no sufficient ground made out for setting aside of it on any ground whatsoever. Ghulam Hussain v. Makhan Lal, AIR 1933 Lahore 882, Mst. Afzal Begum and others v. Y.M.CA. through its General Secretary, PLD 1979 SC 18, Asim Khan v. Muhammad Fazil Khan, PLD 1983 SC 387, Bundu Shah and others v. Wilayatullah, 1985 SCM R 1305, Rasul Bakhsh v. Rab Nawaz Khan and 3 others 1986 CLC 215 (Bahawalpur Bench) were relied upon to show that in order that an application to rehear an appeal which has been decreed ex parte may be allowed, it was necessary that the applicant was not duly served with notice of the appeal within the meaning of Article 169 of the Limitation Act and that he presented the application within thirty days from the date on which he came to know of the decree passed on appeal against him. Learned counsel for the respondent referred to Sultan Muhammad v. Mst.
9. Hamida Begum and 18 others, 1970 SCM R 466 to show that when wrong address of the party was mentioned in summons as well as in citation by way of substituted service, limitation was computed from the date of knowledge of the decree.
10. ' In the instant case, respondent No, 2 was ex parte in the trial Court as well as in the appeal filed against him in the lower Court. Since the matter was sub judice in the lower Court, I shall not propose to comment on the sufficiency of service upon respondent No, 2 in the trial Court, because that has yet to be adjudicated upon. As far the service in appeal, the respondent No,2 was served through citation in daily `Afaq', Lahore on the address given of Chak No, 623/GB, Tehsil Samundari.
11. In fact, respondent No,2 was a resident of village Kot Shahan in Tehsil and District Gujranwala. He was a displaced person from the State of J&K. He was a Lambardar and Chairman Zakat Committee, Kot Shahan. On evidence, it was sufficiently established that he was not resident of Chak No, 623/GB, Tehsil Samundari. Petitioner gave his false address deliberately so as to avoid real contest from him. Substituted service on the wrong address through press and later by affixation at some house in Chak No,623/GB was a farcical exercise. It was in evidence that respondent No,2 had filed a suit for recovery of produce in respect of the land allotted to him against the petitioner and it was decreed by Assistant Collector 1st Grade, Samundari. The decree was executed and the dccretal amount realised from the petitioner. Respondent No,2 also applied to the Colony Authorities for grant of proprietary rights to him. It was at this stage that he was confronted with an ex parte decree passed in appeal against him by the petitioner. After obtaining certified record of it, respondent No,2 rushed to the Court for setting aside of the ex parte judgment and decree. There was sufficient proof on record that respondent No,2 was not duly served in the appeal and he had no knowledge of it. Further, upon gaining the knowledge of the ex parte decree, he applied for setting aside of it. The grounds given and proved on record were sufficient evidence for recalling of the ex parte judgment. It was held in 1993 SCM R 1304 that "It is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversy on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical bars". By the impugned order, only an ex parte decree had been set aside for allowing an opportunity to the rival parties for decision of the dispute between them on merits in accordance with the prevailing law. Frankly speaking, doubt went deep into my mind about the entitlement of the petitioner to hold the State land, and more particularly, the piece of land allotted to respondent No, 2 as evictee from Gujranwala Cantonment.
12. I had repeatedly asked the learned counsel for the petitioner to show me the appointment order of the petitioner as Lambardar of the Chak and allotment of the land to him under Mule-Breeding Scheme. Every time, there was no satisfactory response from him. Even on the trial Court's record, I could not discover any relevant material in support of it. In some of the Jamabandis the petitioner was recorded illegal occupant of the land. The plaint in the suit filed by him also did not disclose the necessary material. Reason for the omission and withholding of necessary information in this behalf was best known to the petitioner but it all deepened the parameters of doubts which without proper scrutiny could not have been resolved satisfactorily. Setting aside of the ex parte decree afforded a chance to the petitioner to prove his credentials to the satisfication of the Court.
13. Revisional jurisdiction was essentially of a discretionary character, and, therefore, when substantial justice had already been done on legal and equitable plane, interference need not be caused.
14. Apart from merits of the case which favoured respondent No,2, above was the substantial reason for me to decline interference.
15. ' Upon aforesaid view of the record, and law, civil revision is dismissed with costs. Records be returned to the lower Court to enable it to proceed with the hearing of the appeal on merits in accordance with law. Since much time has already been lost, the lower Court shall make an attempt towards expeditious decision of the appeal.