' This appeal is arising out of an application under Order 9, Rule 13, C.P.C. For setting aside ex parte decree dated 18-4-1994 filed by the appellants which was dismissed by the trial Court on 5th May, 1994.
2. The necessary facts are that a suit for separate possession through partition was filed by respondents Nos. 1 and 2 against the other respondents and Mian Mahmoodul Hassan, the predecessor of the appellants.
3. Syed Jamshed Ali, learned counsel for respondents has stated that on two dates of hearing a learned counsel had appeared on behalf of Mian Mahmoodul Hassan before the trial Court and undertaken to file written statement which was, however, not done. Mian Mahmood ul Hassan died on 24th September, 1991 and on an application made by respondents Nos. 1 and 2, the appellants were brought on record as his legal representatives. On the failure of appellants to appear in the suit, they were proceeded against ex parte on 20-2-1993. The other defendants conceded the suit of the plaintiffs/respondents and a preliminary decree was passed, which was ex parte, by the trial Court on 18-4-1993.
4. In May, 1994, an application under Order 9, rule 13 of C.P.C. Was filed by the appellants for setting aside preliminary ex parte decree which was rejected by the trial Court on 5-5-1994. Hence this appeal.
5. Learned counsel for the appellants has vehemently urged that the appellants' application under Order 9, rule 13 of C.P.C. For setting aside ex parte decree could not have been summarily rejected by the trial Court without obtaining any reply from the opposite side and affording an opportunity to the appellants to show that they had not been served in the suit in accordance with law.
Reliance was placed on Jamal Din v. Hassan Din and another (1993 MLD 796), Farid ud Din Masood v. Air Marshal (Rtd.) Muhammad Asghar Khan and 5 others (1993 MLD 227), Badruddin through his Legal Heirs v. Mrs. Haji Shah Nawaz and 21 others (1988 MLD 1366), Messrs Rehman Weaving Factory (Regd), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21) and Haji Karamat Hussain v. Naik Khan Muhammad (1986 CLC 6).
6. Syed Jamshed Ali, learned counsel for respondents, on the other hand, has maintained that the application under Order 9, rule 13 of C.P.C. Was mala fide and had been filed with a view to delay the proceedings as appellants aeliberately absented themselves, though they had full knowledge of the pendency of the proceedings. In this regard, he referred to Writ Petition No,5846 of 1990 which was filed by one of the appellants and their deceased father in this Court. According to the learned counsel as only a preliminary decree for partition has been passed, the appellants, who have not been able to disclose any prejudice, are not entitled to maintain this appeal. Learned counsel also pointed out that the predecessor of the appellants, Mian Mahmood ul Hassan, had not filed any written statement during his lifetime and on his death, his legal representatives could not be brought on record.
7. It is true that generally an application for setting aside ex parte decree under Order 9, rule 13 of C.P.C. Cannot be summarily rejected and an applicant/defendant is entitled to demonstrate by leading evidence that he was not served with summons in accordance with law. But this rule has no application to the present case where it is apparent on the face of the record A that the appellants were fully aware of the proceedings in the suit and had purposely kept away.
Consequently, even if there be some irregularity in the service of summons, the ex parte decree against them cannot be set aside in view of Second proviso to Order 9, rule 13 of C.P.C. Which was added by the Law Reforms Ordinance, 1972 in order to prevent the misuse of the process of Court by the parties who do not intentionally appear in the Court despite full knowledge of the proceedings.
8. The most important fact in this regard is that Mian Mahmood ul Hassan and Mohsin Mahmood, one of the appellants, had filed Writ Petition No, 5846 of 1990 seeking quashment of F.I.R. Lodged against them by one of the respondents with respect to the same property. In the Constitutional petition, it was categorically asserted that civil litigation was going on between the parties and status quo order had already been passed in respect of the property in dispute. This clearly shows that not only the appellants were aware of the filing of the suit but also of the orders passed by the Court in those proceedings.
9. Faced with situation, learned counsel for the appellants has attempted to argue that even though the appellants may have knowledge of the proceedings yet as they were not served with summons in accordance with law, the ex parte decree against them is liable to be set aside.
10. This contention of the learned counsel for the appellants cannot be accepted. It is with a specific purpose to remedy such situations that the legislature in its wisdom had specially introduced Second proviso to Order 9, rule 13 of C.P.C. Which requires a Court to dismiss an application for setting aside ex parte decree despite any irregularity in service if the person making application had knowledge of the proceedings. Unlike the previous law on the subject, knowledge aliunde became relevant factor for refusing to set aside ex parte decree. In Zafar ul Haq v. Waris Iqbal and another (PLD 1979 Lahore, 793), it was observed by this Court that defendant's knowledge of institution of proceedings aliunde was relevant factor for sustenance of ex parte decree passed against him. It was held that defendant common interest with other codefendants in subject- matter of suit can legitimately be presumed to be well-informed of litigation pending against him.
In such an event, the principle of estoppel by conduct would fully apply. Useful discussion on the subject is to be found in para. 11 of the report which reads as under:- "I am not unaware of the proceedings laying down that mere knowledge of the suit will not justify dispensation with the necessity of service of summons on a defendant. The legal position has however radically changed now and the authority of these rulings dwindled down, for by virtue of Law Reforms Ordinance 1972, an amendment was incorporated in Order IX, rule 13, C.P.C. And second proviso added thereto, which runs as follows: ' Provided further that no decree, passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.'
' Defendant's knowledge of the institution of proceedings `aliunde' is now a relevant factor for sustenance of the ex parte decree passed against him. In order to establish the petitioner's interest in the property in dispute even during his stay abroad, it was argued by his learned counsel that his family resided in the house. In a case like the one in hand a defendant having common interest with the other codefendants in the subject-matter of the suit and the memoranda of appeals, can be legitimately presumed to be well-informed of the litigation pending against him. Indeed, it will be a gross abuse of the process of Court, after an adverse finding is given against such a litigant to permit him to turn round and thwart the entire proceedings on the plea that he was not served. The petitioner's contention is not bona fide and the principle of estoppel by conduct will actively be attracted."
' Reference may also be made to Sheikh Abdul Haque v. Syed Muhammad Anwar (PLD 1979 Lahore 332), Messrs Fatima Export Corporation and another v. Habib Bank Ltd., Faisalabad (PLD 1982 Lahore 436) and Muhammad Hanif v. Baqa Muhammad (PLD 1979 SC (AJ & K) 120). None of the judgments relied upon by the learned counsel for appellants has any relevancy as they do not deal with this aspect of the matter.
11. Another feature which deserves to be noticed is that during the lifetime of Mian Mahmood ul Hassan he had failed to file any written statement in the suit, though he had put in appearance through his counsel. Consequently, there was no necessity to implead his legal representatives in view of Order XXII, rule 4 of C.P.C. Which ordains that it shall not be necessary .To substitute legal representatives of deceased defendant who failed to file written statement or to contest the suit and the judgment may be pronounced against that defendant notwithstanding his death. It is thus clear that the appellants had no right to be brought on record but if the Court in its wisdom has done so, the appellants cannot be allowed to make capital out of it.
12. Learned counsel for the appellants was asked to show as to what prejudice has been caused to the appellants on account of preliminary decree having been passed against them as they have been allowed their due shares. Learned counsel explained that the claim of the appellants was that the property stands privately partitioned. He was not in a position to produce any document to that effect in order to establish the bona fides of this plea and stated that the private partition was oral.
It appears from the conduct of the appellants that they are trying to play hide and seek with the Court. Had they been serious in contesting the suit they would have appeared before the trial Court after the death of their predecessor being fully aware of the pendency of D the proceedings as is evident from the constitutional petition filed by the predecessor of appellants and others. As the proceedings for final decree are still pending before the trial Court, it is even open to them to join those proceedings.
' In view of what has been stated above, this appeal fails and is dismissed, leaving the parties to bear their own costs.