' A suit for recovery of Rs,34,630.90 was filed by respondent, against the petitioner, on the plea, that an agreement for execution of work "providing diversion and superstructure for '4 x 15' R.C.C. Slab railway bridge over Hudda Drain at mile 34/19-20 of Chak Jhumra Shaheenabad section" was entered into, and during the execution of the work, respondent was required to carry additional work of dewatering for which no rates were given in the contract. It was claimed, that the petitioner worked out Rs,67,467, the Chief Administrative Officer, reduced the rate and issued addendum slip No,7, dated 2-3-1978, thereby making the additional work as part of the contract. In this backdrop, the respondent claimed Rs,34,630.90, with interest from 7-10-106.
2. In the suit, summons were issued to the petitioner. It appears, that no one entered appearance on behalf of the petitioner, who was proceeded against ex parte on 5-12-1978, which was followed by an ex parte decree, dated 23-12-1978. During execution proceedings, the petitioner filed objections under section 47 of C.P.C. An application under section 12(2), read with Order 9, Rule 13 and section 151 of C.P.C., for challenging the decree was also filed. The applications were rejected by the learned Trial Court vide order, dated 17-5-1983. The appeal filed by petitioner was also dismissed on 4-9-1983 by the learned Additional District Judge and in consequence, this revision was filed to assail the orders of the learned Courts below.
3. Learned counsel for the petitioner, submitted, that the summon was claimed to have been served upon the petitioner, on 30-1-1978, while ex parte proceeding order was passed on 5-12-1978, which was followed by an ex parte decree, dated 23-12-1978, though no decree could be passed, without giving 90 days time for filing of written statement, to the petitioner, in terms of section 80 of C.P.C. It was further contended, that the provisions of section 82 of C.P.C. Were violated. Learned counsel submitted, that the suit was not properly constituted, as Federation was not impleaded as a party. Even otherwise, it was maintained, that no summon was served in accordance with law.
4. Conversely, learned counsel for the respondent, argued, that the petitioner having failed to appear despite service of summon, there was no need for adjourning the case for 90 days and that concurrent findings having been recorded against the petitioner, no indulgence can be claimed in revisional jurisdiction. On consideration of the impugned orders, in the light of material annexed with the revision petition, it is observed, that the contentions raised by learned counsel for the petitioner are well founded.
5. Admittedly, the suit was instituted against Pakistan Railways, through its Chairman. Section 80(2) of C.P.C., provides, that if a suit is filed, against the Government or a public officer, in respect of any act, purported to be done in the official capacity, or against the Federal Government, relating affairs of Railways, without service of proper notice, the plaintiff in the suit, would not be entitled to the costs. Proviso to subsection (2) of section 80, contemplates that if a suit is filed without such notice, the Court should allow not less than three months, to the Government to submit its written statement.
6. In "The Government of Punjab through Collector Gujranwala District and another v. Shah Muhammad", PLD 1982 Lahore 115, it was ruled, that in a suit filed without notice, in the terms of section 80, the Court should allow, not less than three months to file written statement and ex parte proceedings against the Government, before expiry of the statutory period, would be illegal.
7. In "Islamic Republic of Pakistan v. Messrs Babar & Company" 1984 CLC 1535, it was held, that the ex parte decree, against Government, without allowing three months time, would be hit by proviso to subsection (2) of section 80 and, therefore, the same could not sustain.
8. In "Sardar Khan v. Government of the Punjab (1989 MLD (Lahore) 900), it was held, that ex parte proceedings, taken within 90 days of the date of service and consequent decree would be void and without jurisdiction. It was further observed, that even if the executing Court could not go behind decree but still, it will refuse the execution, if the decree is void or without jurisdiction.
9. In "Islamic Republic of Pakistan v. Messrs M. Siddique & Co.", 1990 ALD 333 Karachi, it was held that the order of proceedings ex parte, before the expiry of prescribed period of three months for filing written statement, in terms of proviso to subsection (2) of section 80, C.P.C. Would be illegal as the same would be violative of mandatory provisions of law.
10. In the present case, admittedly, the suit was directed against Pakistan Railways, which was instituted without service of a notice, in terms of section 80 of C.P.C. Neither there was any statement in the plaint, for service of any such notice nor issuance of service of any such notice was pleaded in the course of hearing of this revision petition. The summons are stated to have been served on 30-10-1978 while the petitioner wasd proceeded ex parte on 5-12-1978 and the ex parte decree was ultimately passed on 27-12-1978. Thus, the ex parte proceeding order as also the decree were passed before the expiry of the prescribed period of three months, in terms of proviso to subsection (2) of section 80 of C.P.C. In view of the rule laid in the cases noted (supra) and also in the presence of clear provisions of law, the ex parte proceeding order as well as ex parte decree passed against the petitioner, within 90 days from the date of service, were illegal. The order as also the decree being void and without jurisdiction, the same were liable to be set aside, in proceedings under section 12(2) of C.P.C. The objection as to the limitation was without substance as the knowledge of ex parte decree was claimed to have been acquired on 5-1-1982 which was followed by the present application on 9-1-1982. Substantial evidence has been led, to show, that the respondent was lacking knowledge of the decree and filed the application, within three years, from the date of acquisition of knowledge. Even otherwise, the ex parte proceedings order and also the decree being void ab initio, the Court, on being pointed out, should have set aside the same and to decide the suit on merits and could not dismiss the application on the plea of limitation, which objection, was otherwise, without substance.
11. For the reasons above, this revision is allowed, the impugned orders are set aside and by accepting application under section 12(2) of C.P.C., read with Order 9, Rule 13 of C.P.C., the ex parte proceeding order as also the ex parte decree, passed in this case against the petitioner, are set aside. In consequence, the suit shall be deemed to be pending which shall now be decided by the learned Trial Court, on its own merits and in accordance with law.
12. Since the Court which passed the decree, is stated to have been abolished, the parties shall appear before the learned District Judge on 26-2-1998 who will entrust the suit to any other Court of competent jurisdiction for its final disposal, in terms of the observations herein above. The learned Trial Court will finally decide the case, within five months, with intimation to the Deputy Registrar (Judicial) of this Court.