This revision petition has been filed by Mst. Hussain Jan and 8 others, successors-in-interest of the plaintiff against the judgment and decree of the learned first Appellate Court, dated 21-10-1991 whereby the judgment of the trial Court dated 31-1-1990 was reversed. The impugned order and the ex parte decree dated 31-7-1984 were set aside and the original suit filed by the predecessor-in- interest of the petitioner was restored. The learned Appellate Court further directed the plaintiffs- petitioners to file in the trial Court an amended plaint "through Ghulam Mustafa the next friend duly impleading Begum Shamim Muhammad Rashas, Mst. Nek Bakht and Muhammad Younas as defendants".
2. It appears that 4 mutations of partition were attested on 8-9-1977 on the files of the Collector, Abbottabad, bearing Nos.1/9, 2/9, 3/9 and 4/9. The execution proceedings in accordance with the mutations were in progress when the petitioner brought a suit out of which this Civil Revision has arisen challenging the mutations and partition proceedings, on the allegations that the father of the plaintiff and the defendants owned landed property in Village Nawanshehr Shamah as well as in Village Balolia which have been privately partitioned and the landed property in Village Nawanshehr Shamali had fallen to the share of the plaintiff and, therefore, the partition proceedings as aforesaid were void and ineffective qua his rights. The suit was contested by Muhammad Suleman and Abdul Khaliq two brothers of the plaintiff who filed a joint written statement wherein the claim of the plaintiff was controverted both on legal and factual grounds.
As ill-luck would have it, pending decision of the suit Muhammad Jan plaintiff suffered an attack of insanity and in consequence on 29-11-1981 an order was passed by the learned trial Judge staying the proceedings till "the plaintiff re-gains senses or some one approaches the Court for pursuing the suit as next friend". Resultantly the file was consigned to the Record. On 4-6-1983 Ghulam Mustafa a son of the plaintiff moved an application for his appointment as next friend and restoration of the suit. On 21-7-1983 a notice was issued to the defendants for 1-8-1983, then for 17- 8-1983 and lastly for 8-9-19$3 on which date Abdul Khaliq defendant-respondent is recorded to have appeared whereas the rest of the defendants remained absent. On 9-10-1983 Ghulam Mustafa next friend applied for service of the remaining defendants through substituted service. On 8-10-1983 to which date the case had been adjourned, defendant-respondent No.2 having failed to appear was placed ex parte. But in the meantime, a notice for appearance of the defendants under Order V, Rule 20, C.P.C. Was got published in Daily `Nawa-i-Waqt' Rawalpindi, dated 14-12- 1983 in connection with the appointment of the next friend and restoration of the suit. On 22-12- 1983 by virtue of order sheet No.11 the defendants-respondents were placed ex parte and by order dated 14-2-1983 the suit was restored ex parte and the summonses were again issued to the defendants for 1-3-1984. It appears that the summonses so issued to the defendants were not returned either served or unnerved on the adjourned hearing on 1-3-1984. But queerly enough there is no order of appointment of Ghulam Mustafa as the next friend of the insane plaintiff. However, on 1-3-1984, as stated earlier the summonses had not been returned either served or unserved. On the same date, an application on behalf of the plaintiff's next friend was moved for service through a Court notice to be inserted in the newspaper. After few adjournments this notice was published in the "Daily Muslim', Islamabad, dated 1-7-1984 for appearance of the defendants on 17-7-1984. On the last mentioned date as the defendants failed to appear in the Court they were proceeded against ex pane and the suit was adjourned for 30-7-1984 for recording ex parte evidence on which date Patwari Halqa and the next friend of the plaintiff were examined and the suit was decreed ex parte on 31-7-1984.
3. On 5-9-1984, Abdul Khaliq defendant No.2 moved an application for getting the ex parte decree set aside which was dismissed vide order dated 31-1-1990 of Mr. Nasir Mehfoz Khan, Civil Judge First Class, Abbottabad. Still dissatisfied, Abdul Khaliq preferred an appeal which was heard by Sardar Muhammad Raza Khan, as he then was, and as stated earlier, it was accepted, the impugned order was set aside along with ex parte decree dated 31-7-1984 and the original suit filed by Muhammad Jan was ordered to be restored and a consequential order for filing the amended plaint after impleading the three vendees of the suit land was also made.
4. The successors-in-interest of the plaintiff, feeling aggrieved, for the order of the learned Appellate Court have come up in revision to this Court.
5. Mr. Mushtaq Ali Tahir Kheli, learned counsel for the petitioners, in support of this revision has raised the following contentions:--
(1) that defendant-respondent No.2 was aware of the proceedings in connection with the suit on 8- 9-1983 on appearance before the trial Court in response to the summonses and as such he could not claim second service upon him before passing ex parte decree according to law, and
(2) that the ex parte decree having been passed on 31-7-1984 and the restoration application having been filed on 5-9-1984 was clearly barred by limitation as the case was covered by Article 164 and not Article 181 of the Limitation Act (IX of 1908) and thus the learned Appellate Court has erred to hold that the application for setting aside ex parte decree was within time.
6. As against this, Khawaja Abdur Rashid, learned counsel for the respondents, maintained that the summonses issued by the trial Court to the defendants for 1-3-1984 were never received back by the Court and, therefore, the real cause for the failure of service of the notices issued to the defendants could not be ascertained. The learned counsel went on to argue that there was nothing on the record to show that the defendants had refused or avoided to accept service of the summonses to them. In these circumstances, the learned counsel pressed into service the precedent case of Malik Muhammad Nazir v. Mian Abdul Rahim and another PLD 1968 Lahore 792 and contended that there was no material before the Court on 1-3-1984 to have ordered the service to be effected on the defendants by the substituted service by advertisement in the newspaper. The observations of Muhammad Akram, J., as his Lordship then was, in para.5 of the report are as under:-- "Order V, rule 20 of the Code of Civil Procedure provides that where the Court is "satisfied" that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the same cannot be served in the ordinary way, the Court shall order the summons to be served in such other manner as it may deem fit. The laconic order dated 30-5-1964, passed by the Court is altogether silent and in the absence of any material on the record, it cannot be said that the Court had "satisfied itself about it before ordering the substituted service by proclamation in the newspaper against the defendants. I am inclined to think that in these circumstances the Court had no jurisdiction to order the service to be' effected against the defendant by the substituted mode, and I have no hesitation in agreeing with the Court below that the defendants were not duly served for the 10th of June, 1964, when the ex parte proceedings were ordered against them by the Court."
Under sub-rule (2) of Rule 20 of Order V of the Code of Civil Procedure, substituted service by order of the Court is as effectual as it had been made on the defendant personally. But the party concerned is not debarred from showing that there was no justification for ordering substituted service against him by the Court and the circumstances did not exist to warrant any order for the substituted service passed against him. Reference in this context may be made to: (1) Ashique Husain and others v. Lachhmi Narain and others AIR 1940 Oudh 81, (2) Kedar Mall Agarwalla and another v. Wazifunnessa and another AIR 1934 Calcutta 745, and (3) Panju Ram v. Uttam Chand and another AIR 1928 Lahore 799. This proposition was later on confirmed by the authority of the Supreme Court in Said Muhammad Anwar Advocate v. Sheikh Abdul Haq 1985 SCMR 1228.
7. The contention of the learned counsel for the petitioners that Article 164 of the Limitation Act was attracted to this case and, therefore, the application having been filed after 30 days was barred by time also stands repelled by the authority of Malik Muhammad Nazir cited above. Relying on the authorities of, (1) Mst. Zainab Bibi and others v. Behari Lal and others AIR 1935 Peshawar 186 (2)
Rahimuddin Sheikh and others v. Sharifan Nesa and others AIR 1954 Assam 92 and (3) Messrs Ghulam Farid Muhammad Latif and others v. Central Bank of India Limited, Lahore PLD 1954 Lah.
575 the learned single Judge of the Lahore High Court in Muhammad Nazir's case cited above had held that if the date is not fixed for the hearing of the suit then neither Order IX, Rule 8 nor Order XVII, Rule 2, C.P.C. Would give any power to the Court to dismiss the suit for default on that day and that the order of dismissal for default in the circumstances being without jurisdiction and nullity it was not necessary to have it set aside. To such a case, according to the learned single Judge, Article 181, Limitation Act, applied and not Article 163, and the application for restoration lay under section 151, C.P.C. And not under Order IX, Rules 8 and 9. On the reasoning adopted in the above-cited authorities his Lordship (late) Muhammad Akram, J., emphasized that the ex parte order against the defendants in the case was passed without any notice of the date of hearing to them and that it was not passed in accordance with the provisions of Order IX, Rule 6, C.P.C. And the application by defendant No.1 therein to set aside the ex parte decree did not properly fall under Order IX, Rule 13 of the Code to which Article 164 of the Limitation Act was applicable. It was thus held that the application was competent under section 151 of the Code for which the period of limitation is 3 years as prescribed by the residuary Article 181 of the Limitation Act. In this context reference can also be made to an illuminative judgment of the Supreme Court in the case of Muhammad Sawleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97. In the similar circumstances, wherein Supreme Court held a view that the ex parte proceeding 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 and that the order passed therein on 22-4-1960 directing ex parte proceedings was not a valid order. In the background of these facts the Supreme Court also observed:-- "The contention on behalf of the appellant is that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. The argument on the other hand is that when a Court is seized of a case it has jurisdiction to determine whether summons has been duly served and this will include a case where the Court finds though not quite correctly that there is sufficient legal notice to the defendant."
8. After examination of plethora of case-law, Muhammad Afzal Zullah, J., as his Lordship then was, in Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21 summed up a similar proposition in the following paragraph at page 38 of the report:-- "The next question arises as to what would be the period of limitation for an application for setting aside an ex parte decree, not covered by Article 164. That application may or may not be under section 151. It could still be under the second part of rule 13 of Order IX, though in some cases section 151 might also apply. When defendant makes an application under Order IX, rule 13 in connection with an ex parte decree, which is not passed under rule 6 of Order IX (on the first hearing) it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of "null and void order" on the question of limitation; is simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply."
9. In this view of the matter, I am clear in my mind that the order for setting aside the ex parte decree by the learned Appellate Court cannot be interfered with because the application for setting aside the decree lay only under Order IX, Rule 13, C.P.C. And was not time-barred under Article 181 of the Limitation Act. Additionally it should be stated that if there be a jurisdiction in a Court to act, the jurisdiction should be exercised which the learned Appellate Court had rightly in fact exercised because if it had not exercised it, it would have led to injustice and there is no principle of public policy which forbids its exercise in the particular circumstances.
10. The impugned ex parte decree which appears to have been passed by the learned trial Judge under Order IX, rule 6 (a) is even otherwise not sustainable in law because a bare statement of the next friend was not sufficient to grant ex parte decree to the petitioners. The case of the plaintiff-- petitioners in essence was that the disputed land had fallen to their share in a private partition, that defendants 1 and 2 having been allotted the land in C village Balolia had nothing to do with the disputed land and thus the impugned partition proceedings were sought to be annulled. Now in this state of affairs, a bare statement of the next friend of the defendant-plaintiff and the entries in the Revenue Record showing his possession was not enough to arrive at the conclusion that the allegations contained in the plaint were proved notwithstanding the provisions of Order IX, Rule 6
(1) (a), C.P.C. Mr. Mushtaq Ali Tahir Kheli Advocate attempted to defend the view taken by the learned trial Court on the basis of amendment of rule 6 of Order IX of the C.P.C. Referred to above.
The word "and pass decree without recording evidence" occurring in Order IX, Rule 6(1), C.P.C. Does not mean that the question was left to the discretion of the Courts or does it mean that it was incumbent on Courts to decree a suit without recording evidence. In authority of Shamroz Khan v.
Muhammad Amin PLD 1978 SC 189 the words "the Court may proceed ex parte and pass decree without recording evidence ...." were considered in the concluding paragraph of the report which is as follows:-- "This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word `may' here imports discretion and means, `may', not `shall', therefore, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also, the suit was illegally decreed against the said-respondents:'
11. It may also be noted here that the Courts are generally liberal in ordering restoration of cases dismissed in default, because as observed in Sharafat Ali v. Muhammad Boota and another 1985 CLC 1063, the law leans in favour of adjudication of cases on merits rather than their disposal on the basis of technicalities. See also Thal Engineering Industries Ltd. v. Bank of Bahawalpur Ltd. And another 1979 SCMR 32.
12. For the foregoing reasons, this revision has no force and is dismissed with no order as to costs.