JUDGMENT l MALIK MUHAMMAD QAYYUM, J. - This is appeal arising out of an application under Order 9 Rule 13 CPC 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 iihat a suit for separate possession through partition was filed by resporidents No.l and 2 against the other respondents and Mian Mahmood-ul-Hassan, the predecessor of the appellants.
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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 Mahmood-ul-Hassan before the trial Court and undertaken to file written statement which was, however^ not done. Mian Mahmood-ul-Hassan did on 24th September, 1991 and on an application made by respondents No. 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 CPC was filed by the appellants for setting aside preliminary ex parte decree which was rejected by the trial Court on 5-5-1994jHence this appeal.
5. Learned counsel for the appellants has vehemently urged that the appellants' application under Order 9 I ule 13 of CPC 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 M LD 796), Farid-ud-Din Masood v. Air Marshal (Rtd.) Muhammad Asghar Khan and 5 others (1993 M LD 227), Badruddin through his Legal Heirs v. Mrs.Haji Shah Nctwaz and 21 others (1988 M LD 1366), Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 198l SC 21) and Haji Karamat Hussain v. Naik Khan Muhammad (1986 CLC 6).
'). Faced wilh situation, learned counsel for the appellants has attempted to argue that even though the appellants muy have knowledge of the proceedings yet as they were not served with summons in accordance with law. The civ pane decree against them is liable to be set aside.
It), 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 *) rule 13 of CPC which requires a Court to dismiss an application for selling aside e.v pane 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 export? Decree. In Zafar nl-Hat/ r. Waris Iqbal am1 another, PLD l')7v Lahore 7'>3), it was observed by this Court that defendant's knowledge of institution of proceedings aliunde wiis relevant factor lor sustenance of ex pane decree passed against him. It was held that defendant common interest with other co-defendants in subject- mailer of suit can legitimately be presumed to be well informed of litigation pending 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 II 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, 1072. 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 pane 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 defendants had knowledge of the date of hearing in sufficient time to appear on that dale and answer the claim."
Defendant's knowledge of the institution of proceedings 'aliunde' is now a relevant factor .For sustenance of the ex pane decree passed against him. In order to establish the petitioner's interest in the property in dispute even during his slay 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 co- defendants in the subject-matter of the suit and the memoranda ol appeals, can be legitimately [(resumed to be well informed of the litigation pending against hini| Indeed, it will be .< cross abuse of the process of Court, after an adverse finding is given against such a #tbs litigant to permit him to turn r on the plea that he was nth se #to round and thwart the entire proceedings :rvcd. The petitioner's contention is not bona fult' and the principle of estoppel by conduct will actively be attracted."
Reference may also be made to Sheikh Abdu! Haque r. Syed Muhammad Anwar (PLD l'>7'> Lahore 332), Messrs Fatima Export Corporation ami another r. Habib Bank Ltd., Faisalabad (PLD PW2 Lahorl1 43o) and Muhammad Hani}' v. Baqa Muhammad (PLD IW SC (A.I & 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- Hassair he had failed to tile tiny 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 \iew of Order XXII rule 4 of CPC which ordains that it shall not be m,cssary to substitute legtd representatives of deceased defendant who failed to written statement or to contest the suit and the judgment may be pronounc" ! 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 appdllufris was asked to show' as to what prejudice has been caused to the appellants on account of preliminary decree having been passed against (hem as they have been allowed their due shares. Learned counsel explained that the ijaim of the appellants was that the properly stands privately partitioned. He was not in a position to produce any document to that effect to establish the bona fide of this plea and slated that the private partition was oral, it appears from the conduct of the appellants that they are trying lt) 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 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 w'hal has been staled above, this appeal fails anebis dismissed, leaving the parties to bear their ow'n costs.
Khalida Zafar V. Controller N.E.B.
(Muhammad Naseem, J)