' In this revision petition order dated 19-12-1981 passed by learned District Judge, Mianwali through which appeal filed by the petitioner against order dated 19-2-1981 passed by the learned trial Court dismissing his application under Order 9, Rule 13, C.P.C. as barred by time and there being no sufficient ground for setting aside the same was dismissed, has been challenged.
2. An ex parte decree was passed against the petitioner on 4-2-1980 after taking ex parte proceedings against him in the suit filed by the respondent. He made an application on 1-12-1980 for setting aside this decree. This application was contested on the ground that the same was barred by time and there was no sufficient ground for setting aside ex parte decree. It appears that the respondent's case was that the petitioner appeared in the suit who engaged counsel and absented on subsequent dates and that he himself had filed a suit for permanent injunction in which written-statement was filed by the respondent in which it was mentioned that ex parte decree had been passed against the petitioner therefore, he had knowledge of the passing of the ex parte decree as such, there was no sufficient ground for setting it aside and the same was barred by time.
3. The learned trial Court framed the following issues:---
(1) Whether the application is time-barred? OPR
(2) Whether there are sufficient grounds to set aside the ex parte decree?
(3) Relief.
' The learned trial Court observed that the,petitioner had appeared in the suit and engaged Mr. Salim Akhtar, Advocate as his counsel and that in the suit filed by him for permanent injunction it was mentioned by him that ex parte decree had been passed against him therefore, the application was barred by time as also that there was no sufficient ground for setting aside ex parte decree.
4. There were two suits pending against the petitioner. In the other suit too ex parte decree was passed against him. In that case also the case of the respondent was that the petitioner had engaged Mr. Salim Akhtar who had been appearing on his behalf and subsequently absented. In that case the same learned District Judge remanded the case on the ground that the petitioner had denied having engaged any Advocate in the case and having appeared through him which fact was not put to him in the cross-examination therefore, the case was remanded for recording evidence of the parties in the application moved by the petitioner in that case under Order 9, Rule 13, C.P.C. In the present case the appeal of the petitioner was dismissed on the ground that it was distinguishable inasmuch as in this case the petitioner had filed suit for permanent injunction through which he had come to know that ex parte decree had been passed against him as such the application moved by him was barred by time. It was also observed that he did not indicate in the application as to when he got the knowledge of the decree.
5. I am afraid, the reasons given by the learned District Judge to hold that the present case was distinguishable from the other are not tenable. The petitioner's case had been that he had throughout been away in connection with his service in the Army and had not been served in the suit and did not engage any counsel and file any suit for permanent injunction. He had taken a specific ground in this revision petition also that all these proceedings have been fabricated to show that he had been appearing through his counsel or had .filed a suit for permanent injunction to create evidence against him for getting favourable order by showing that the application was barred by time. In this case also the petitioner was not confronted with the assertion made by the respondent that he had engaged cousel in this case who had appeared on his behalf and that he also filed a suit for permanent injunction. These facts should have been proved by producing evidence because they had been denied by the petitioner. The onus of Issue No,1 was on the respondent therefore, the petitioner could not be blamed for not stating in his evidence as to on which date he came to know of the passing of the ex parte decree whereas he had expressly taken ground in the application that he had not been served in the suit. Strangely enough the respondent instead of proving the service of notice on the petitioner in the suit by examining the process- server was relying upon the mere fact of he having come to know about the passing of the ex parte decree through the suit filed by him for permanent injunction and that he had allegedly engaged counsel in the suit who had been appearing on his behalf which prima fade gives support to the case of the respondent that this might have been fabricated in order to create evidence against him.
6. This case was not for the above reasons in any manner distinguishable from the other case therefore, different order could not have been passed in this case.
7. The two Courts below have committed material irregularity and illegality in exercise of jurisdiction vested in them under the law. The revision petition is accepted. The impugned orders passed by both the Courts below are hereby set aside. The case is remanded to the learned trial Court for decision of the application filed by the petitioner under Order 9, Rule 13, C.P.C. after giving opportunity to the parties to produce evidence keeping in view the observations made above. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.