This revision petition is directed against the order, dated 7-12-1983 passed by the then learned Senior Civil Judge, Kasur whereby he granted ex parte decree to the respondent/plaintiff in a suit for declaration whereby correction of date of birth was prayed.
2. A petition for setting aside the aforesaid ex pane decree was moved before the learned trial Court, which was dismissed vide order, dated 2-2-1984 on the ground that there was no sufficient cause for setting aside the ex parte decree as the petitioner/defendant had absented intentionally on the date of hearing i.e. 7-12-1983. Against that order the petitioner/defendant filed an appeal, which came up for hearing before the then learned District Judge, Kasur, but the same was dismissed, hence this revision petition.
3. The brief facts are that the respondent/plaintiff filed a suit for declaration in the Court below for correction of his date of birth from 11-7-1957 to 18-11-1959 on the, ground that the date mentioned earlier was wrongly mentioned in his Matriculate Certificate. Summonses were issued in the aforesaid suit to the petitioner/defendant for 7-12-1983 but no one appeared from the side of defendant/petitioner, therefore, an ex parte decree was passed on the same date by the learned trial Court. The petitioner/defendant applied for setting aside the ex parte decree on the ground that they were served in the suit a few days earlier than the date fixed in the case for filing written statement. However, on the date so fixed, the petitioner/defendant sent its duly authorised agent alongwith necessary brief to its Advocate, but the Advocate reached the Court late and by then the impugned decree had already been passed. It was submitted that there was no intentional or wilful default on the part of the petitioner/defendant for non-appearance on 7-12-1983 and that the petition for setting aside decree was wrongly dismissed by the learned Senior Civil Judge although it disclosed sufficient cause for the absence. Likewise the learned District Judge fell in error to dismiss the appeal without providing an opportunity to the petitioner/defendant to contest the suit on merits.
4. In this revision petition, nobody appeared for the respondent/plaintiff on many dates, whereupon ex parse proceedings were taken against him on 30-9-1998 and the matter was heard ex parte on 3-2-1999.
5. I have heard the learned counsel for the petitioner/defendant, who has taken me through the record of the learned trial Court. A suit for declaration was filed by the respondent/plaintiff in which summonses were directed to be issued to the petitioner/defendant for 7-12-1983 vide order, dated 13-11-1983. It appears from the order, dated 7-12-1983 that no one appeared for the petitioner/defendant on that date and the learned trial Court believing that the service has been effected upon the petitioner/defendant proceeded against ex parte and simultaneously decreed the suit after taking into consideration the plaint which was verified on oath. No witness was, however, examined. A petition for setting aside the ex parte decree was moved by the petitioner/ defendant/Board on 15-12-1983. It was contended in that petition that service upon the petitioner/defendant was effected quite late and that necessary documents were sent to the lawyer at Kasur from Lahore, but the lawyer did not appear in the Court when the case was called out and that ex parte decree as stated above was granted to the respondent/plaintiff. It was further contended that absence was not intentional and that papers could not be produced in the Court in time because of the non-availability of the lawyer. The petition was dated 7-12-1983 i.e. The date on which ex pane decree was granted. It was supported by an affidavit. However, it was formally moved on 15-12-1983. The learned trial Court called for reply from the respondent/plaintiff.
Reply was filed in which it was submitted that the petition was not maintainable as the petitioner/defendant had absented without any just cause. However, no affidavit was attached with the reply to the petition.
6. Instead of framing an issue on the controversial point i.e. Whether or not there was sufficient cause for setting aside ex parte decree and thereafter, examining evidence of the parties, the learned trial Court after hearing the learned counsel came to the view that there was no sufficient cause. The same view was taken by the learned District Judge while dismissing the appeal.
7. The learned counsel for the, petitioner has submitted that procedure adopted by the learned trial Court was extraneous to law as firstly issues should have been struck on controversial point and evidence should have been examined to settle whether or not there was sufficient cause for setting aside ex parte decree. Even otherwise the law requires that the matters should be decided on merits. In this respect, it is further contended that there are repeated _judgments of this Court that date of birth can only be corrected within two years of the issuance of the Matriculate Certificate and that too by the department concerned a after it is formally moved to that effect. In the instant case the respondent/plaintiff never approached the petitioner/defendant/Board for the correction of date of birth within that period and, therefore, the suit was not maintainable. Even otherwise the jurisdiction of the Civil Court was barred to entertain such type of plaint as it was within the exclusive domain of the Board to make a correction in the date of birth.
7-A. I have considered the foregoing points but would not like to touch the merits of the case. I would only confine myself whether or not the ex-parte decree should be set aside or maintained. In the instant case important questions have been raised touching the jurisdiction of the Court and also that the absence of the petitioner/defendant was not wilful or intentional. The Court below should have, therefore, framed an issue to settle this controversy but it did not do so and proceeded to dismiss the petition although affidavit was attached in support by the petitioner/defendant, though there was no such counter-affidavit by the respondent/plaintiff with his reply filed to contest the petition for setting aside the ex parte decree. Even otherwise the Court acted in haste in disposing of the suit ex parte on the same day without examining any evidence in proof of the claim made in the suit itself. The law also requires that the case should be decided on merits for which the parties should be given chance. In the instant case no such chance was provided to the contesting party.
8. In view of the above, I allow this petition and set aside the impugned orders passed by the Courts below; being arbitrary, capricious and illegal. I would have remanded the petition for setting aside the ex parte decree by directing the Courts below to frame an issue to find out whether or not there was any sufficient cause for setting aside the ex parte decree. However, the matter is already hanging fire since 1983, therefore, believing the affidavit attached with petition for setting aside ex parte decree, I find it sufficient, ground to set aside ex parte decree by allowing the petition moved to that effect. The main case is, therefore, remanded to the trial Court for its trial in accordance with law.
9. Since nobody has turned up to contest this petition from respondent/ plaintiff side, therefore, the parties are left to bear their own costs.