' On 13-11-1995 respondent No. 1 filed an application under section 30(1)(a) of the House Building Finance Corporation Act, 1952 (hereinafter referred to as the Act) for an order that the property mortgaged by the petitioner for obtaining loan be sold and out of the sale proceeds, an amount of Rs.2,26,320 due from the petitioner be paid to respondent No.1. This application was allowed ex parte on 2-1-1996 on the ground that in spite of service through affixation, the petitioner did not enter appearance to contest the application. On or about 28-6-1997, the petitioner filed an application under section 12(2), Order IX, Rule 13 and section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as C.P.C.) for setting aside the ex parte decree dated 2-1-1996. This application was contested by the respondent on the ground that the decree/order was passed under the House Building Finance Corporation Act, 1952 (hereinafter referred to as the Act) and there was no provision in the Act for such an application. The argument prevailed with the Court (Respondent No.2) which after holding that the petitioner ought to have gone in appeal under section 30(10) of the Act, dismissed the application on 23-6-1998. It is prayed in this Constitutional petition that the order dated 23-6-1998 be declared as without lawful authority and respondent No.2 be directed to decide petitioner's application for recall of decree on merits.
2. In support of the petition, learned counsel has argued that for all purposes proceedings under section 30 of the Act are judicial proceedings, these are conducted by a District Judge/Additional District Judge and these culminate in order which has been given the status of a decree under subsection (9) of section 30 of the Act. It is argued that merely because there is no specific provision providing for recall of the ex parte order, does not mean that respondent No.2 has no jurisdiction to set aside an ex parte order. Reliance is placed on the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603) and Mian Manzar Bashir and others v. M.A.
Asghar & Co. (PLD 1978 Supreme Court 231).
3. In reply, learned counsel for respondent No.1 has supported the impugned order by arguing that the petitioner could have challenged the ex parte order dated 2-1-1996 by filing an appeal in this Court under section (30)(10) of the Act. According to the learned counsel this was the only remedy available to a person proceeded ex parte under the Act.
4. A detailed examination of section 30 of the Act shows that it provides a complete although summary procedure for sale of mortgaged property against the security of which a loan has been raised from the Corporation. Proceedings are conducted by the District Judge, which is the Court of original civil jurisdiction. Proceedings are adjudicatory in nature and subject to appeal under subsection (10), finally decide the rights of the parties. As a consequence of the order, the mortgaged property is sold and the Corporation can realize its outstanding dues. In actual practice the District Judge conducts proceedings under section 30 of the Act, by and large in accordance with the procedure laid down in Civil Procedure Code, 1908. As in this case the service was directed to be effected not in any special manner but in accordance with the requirements of Order V of the C.P.C., learned counsel for respondent No.1 has not been able to show as to why the other provisions of C.P.C., which are in accord with the principles of natural justice and which go to promote and ensure the proper administration of justice, should not be made applicable.
5. In the case of H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 Supreme Court 65) the question before the Supreme Court of Pakistan was whether a stranger to suit was competent to file an appeal under sections 96 and 104 of the C.P.C., if he was adversely affected by the order passed in a suit. It was argued that there was no provision permitting filing of appeal by the stranger. The Court held that: "a stranger, to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
6. Similarly the case of Muhammad Aslam Mirza (supra) supports the contention of the learned counsel for the petitioner. In this case the question was whether a Rent Controller acting under the provisions of Punjab Rent Restriction Ordinance, 1959, is competent to set aside ex parte order. The matter was referred to Full Bench and the majority decision was that the Rent Controller was competent to recall the ex parte orders, even though there was no express provision like Order 9, Rule 13, C.P.C. In the Ordinance. It may also be noted that in the present case the application was also made under section 12(2), C.P.C. This provision in C.P.C. Incorporates a very positive and healthy principle viz. That a Court, Tribunal or Authority has an inherent jurisdiction to recall orders obtained from it by practising fraud and misrepresentation. In the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331) it was held that such a power was inherently available to a Court/Tribunal of special or limited jurisdiction, independent of any statutory provision. There is no reason to refuse to apply this principle. To the facts and circumstances of the present case.
7. It is true, as has been held by respondent No.2 that the petitioner could have appealed against the ex parte order under section 30(10) of the Act but respondent No.2 seems to have erred in holding that this is the only remedy available to the petitioner. The availability of remedy of appeal does not exclude the remedy of approaching the Court for setting aside the ex parte order, on sufficient grounds being shown. Respondent No.2 has clearly failed to exercise jurisdiction on erroneous understanding of law.
8. For the above reasons, this petition is allowed and the impugned order dated 23-6-1998 is hereby declared to have been passed without lawful authority and of no legal effect. It is further declared that respondent No.2 has the jurisdiction to decide the petitioner's application dated 28- 6-1997 for recall of the ex parte decree. This application shall be deemed to be pending and will now be disposed of expeditiously in accordance with law. The parties are left to bear their own costs.