' This common judgment of mine would dispose of two civil revisions hearing No,466 of 1994 (Shabbir Hussain v. Government of N.-W.F.P.) and Civil Revision No,511 of 1994 (Taj Muhammad v.
Shabbir Hussain and others). It would also dispose of Civil Miscellaneous No,134 of 1998, an application filed by one Yarat Khan to be arrayed in the proceedings as respondent, as they are arising out of a single judgment delivered by learned District and Sessions Judge Kohat dated 30- 5-1994.
2. Briefly stated the background of the case is that one Dil Baz Khan son of Sher Baz was involved in a murder case and became fugitive from law. His property was attached in favour of the Provincial Government. The father of the present petitioner Shabbir Hussain, moved an application to the Collector Kohat stating that property measuring 70 Kanals, 5 Marlas belonging to the aforesaid absconder which stands confiscated to the State be sold to him on the basis of market value prevailing at the time of such sale.
3. Commissioner Kohat on 21-7-1986 was pleased to write to the Deputy Commissioner Kohat, granting him permission to put the said property to an open auction, it was followed by a letter of the Deputy Commissioner addressed fo Assistant Commissioner to hold the open auction by inviting bids regarding the suit property.
' It so happened that the highest bid offered by Shabbir Hussain was accepted by the Naib- Tehsildar (auctioneer). Shabbir Hussain deposited 1/4th of the bid amount but when the proceedings were forwarded to the Assistant Commissioner for confirmation, the Assistant Commissioner did not accept the bid and ordered that the property be reauctioned.
4. Aggrieved from the order of reauction, Shabbir Hussain instituted a suit in the civil Court on 20-9- 1986 for a declaration that reauction being violative of law and substantive right having accrued in favour of the petitioner, the reauction proceedings shall be stopped.
5. The suit was decreed ex parte on 29-7-1987 and by then statements of three P.Ws. Namely, Hamesh Gul, A.D.K., Musaddiq Hussain, Patwari Halqa and Shabbir Hussain petitioner had been recorded.
' On the same date i,e, 29-7-1987, the defendants-respondents filed an application for setting aside ex parte proceedings of which notice was issued, however, the application dated 29-7-1987 (in fact filed on 30-7-1987) was also dismissed in default on 14-11-1987. It was, therefore, that Taj Muhammad, the then A.D.K., on 5-12-1987 moved another application for setting aside ex parte proceedings dated 14-11-1987 on the ground that from 8-11-1987 to 14-11-1987 he was on medical leave and the Government Pleader due to his previous engagements before the District Judge could not make himself available to appear before the Court of Civil Judge on 14-11-1987.
' Having realized that application dated 5-12-1987 was wrongly drafted, therefore, on 13-4-1988 defendants-respondents prayed that their application dated 5-12-1987 be treated as an application for the restoration of petition for setting aside the ex parte decree. In the proceedings, statements .Of Noor Sahib H.V.C. And Taj Muhammad were recorded. The application of the respondents was ultimately dismissed by the learned trial Court and ex parte decree remained intact.
6. Aggrieved from the order of learned Civil Judge dated 16-11-1989, the Provincial Government through Collector Kohat and another instituted appeal in the Court of District Judge Kohat on 12-12- 1989. The learned District Judge allowed the appeal on 30-5-1994 and remanded the case back to the learned trial Court with the direction to proceed with the case on merits.
' Civil Revision No,511 of 1994 filed by Taj Muhammad A.D.K. Is regarding observations made by the learned District Judge in appeal whereby it was held that:-- "While accepting this appeal I set aside the impugned judgment and order and application for setting aside ex parte decree, dated 30-7-1987 is accepted on payment of Rs,5,000 as cost. Taj Muhammad the then A.D.K., who is responsible for the entire drama, should pay this amount from his own pocket, as he was authorised by the Collector to appear on his behalf but he failed to discharge his duty. It is also desired that he should be dealt with departmentally for committing misconduct in discharge of his official duty. Copy of the order be sent to Commissioner, Kohat for taking appropriate action against the said A.D.K., according to law."
7. Civil Miscellaneous No,134 of 1998 is moved by one Yarat Khan, stating that he being co-sharer in the disputed land shall have the prior right to the purchase of the suit property. In support of his application for being impleaded as respondent, reliance was placed on a Letter No,18256/Rev/IV/ 184(KC), dated 29-9-1990 issued by Deputy Secretary-I Board of Revenue N.-W.F.P., Peshawar. It is also averred in the application for impleadment of party that Yarat Khan had already moved an application under section 12(2), C.P.C. Which is pending adjudication before the Civil Judge. Further, it is mentioned that the applicant namely, Yarat Khan had earlier filed an application in the Court of District Judge which was never decided.
8. These three matters came up for hearing before me and as they were interconnected, I would first take up Civil Revision No,466 of 1994.
9. Learned counsel appearing for the petitioner in Civil Revision No,466 of 1994 first picked up application Civil Miscellaneous No,134 of 1998 and submitted that Yarat Khan cannot approbate and reprobate nor he is entitled to any discretionary relief by this Court on the ground that if he was an interested party should have taken part in the auction proceedings, secondly, he has admittedly filed an application under section 12(2), C.P.C. Which is still pending adjudication before the Civil Court of original jurisdiction, hence it will be multiplicity of the proceedings, if made party in this revision. He next argued that the conduct of application Yarat Khan is condemnable as he earlier filed application for becoming party in the year 1989 and this time he has come for being impleaded as respondent in the year 1998 and remained mum for about a decade. Therefore, the application Civil Miscellaneous No,134 of 1998 is liable to dismissal.
10. Learned counsel also submitted that the learned trial Court was right to pass an ex parte decree on 29-7-1987 as nobody appeared on behalf of the defendants although Taj Muhammad, Circle Girdawar used to appear on behalf of the Collector and Noor Sahib for Assistant Collector and Tehsildar but none of them had put in 'appearance on the crucial date. It was argued that the ex parte decree though does not refer to evidence but the fact remains that three witnesses including the plaintiffs-petitioners statements were recorded and the evidence led by plaintiffs-petitioner has gone unchallenged.
' Learned counsel stated that the application for setting aside ex parte decree, dated 30-7-1987 was then dismissed in default on 14-11-1987. An application was filed on 5-12-1987 requesting for setting aside ex parte' decree dated 29-7-1987 instead of requesting that application for setting aside ex parte decree dismissed in default on 14-11-1987 should be restored. It was argued that the application dated 5-12-1987 was hopelessly time-barred where request was made for setting aside of order dated 29-7-1987. Similar objection was raised to the application dated 13-1-1988.
' Learned counsel contended that the appellate Court had erred in law and facts by accepting the appeal and remitting the case back to the trial Court to decide the same on merits. It was argued that the appellate Court has miserably misread the evidence and has incorrectly applied the law on the subject.
11. Learned counsel appearing for respondents-Government stated that the respondents- Government shall not suffer huge loss on account of an omission or negligence on part of his functionary. It was stressed that the approach of the superior Courts invariably is to see that cases are decided on merits rather on technicalities. It was argued that the first application for setting aside ex parte decree was filed within time and so was application dated 5-12-1987 requesting for restoration of application dated 14-11-1987. It was submitted that the petitioner Shabbir Hussain in connivance with lower revenue staff managed to secure ex parte decree in his favour.
' With regard to Civil Revision No,511 of 1994, learned Additional Advocate-General appearing for respondents-Government did not support the judgment of the appellate Court regarding judgment and decree concerning Taj Muhammad petitioner therein.
12. Learned counsel appearing for the petitioner in Civil Revision No,511 of 1994 contended that the observations made in judgment and decree, dated 30-5-1994 passed against the petitioner are not sustainable as conclusion arrived at qua the petitioner is on the basis of conjectures and inferences. It was argued that the finding is given on no evidence. Learned counsel submitted that there is not even suggestion to Shabbir Hussain plaintiff-petitioner that he has connived with the revenue staff or that Taj Muhammad had absented himself wilfully from the proceedings.
13. To recapitulate the facts it is stated that the suit was filed by Shabbir Hussain on 29-9-1986 and statements of Hameesh Gul, Musaddiq Hussain and Shabbir Hussain were recorded on 19-3-1987, 15-6-1987 and 25-6-1987 respectively. The ex parte decree was passed on 29-7-1987, the date on which none of the representatives of the respondents appeared and the date was fixed for recording of evidence. The date preceding that date was 15-7-1987 where the attendance of both the representatives namely, Taj Muhammad and Noor Sahib has been recorded. Date 29-7-1987 was given in their presence.
It is in this background that I tend to agree with the submissions made by the learned counsel for the petitioner in Civil Revision No,466 of 1994 that when the date was in the knowledge of the respondents or their representatives and it was fixed for the recording of their evidence, the absence of any or all representatives on such date was crucial and was rightly considered sufficient to pass an ex parte decree.
14. The submission of the learned counsel for the respondents regarding immediate filing of application for setting aside ex parte decree on 30-7-1987, in the above backdrop, would lose its significance. The application for setting aside ex parte decree was then dismissed in default on 14- 11-1987 for which Taj Muhammad petitioner in Civil Revision No,511 of 1994 has taken the stance that he was on medical leave but such assertion has not been fortified by producing any medical certificate or someone from his office to confirm if Taj Muhammad was in fact on medical leave from 8-11-1987 to 14-11-1987. There is yet another aspect of the case that when application for setting aside ex parte decree was dismissed in default on 14-11-1987, an application duly signed by Taj Muhammad dated 5-12-1987 was filed. Prayer made thereunder was to set aside the ex parte decree dated 29-7-1987 which would be on the face of it time-barred i,e, beyond 30 days. The defect whether wilful or inadvertent was realized on 13-4-1988 when an application was made by the Government-respondents that correction be made in their application dated 5-12-1987 and instead of setting aside ex parte decree, the application be considered, one for restoration of their application for setting aside ex parte decree.
15. The application dated 5-12-1987 was on the face of it time-barred when it asks for the setting aside of ex parte decree dated 29-7-1987 and so was the final application dated 13-4-1988 seeking corrections in the application dated 5-12-1987 being time-barred. Such application was rightly rejected also on the ground that it does not carry the affidavit duly attested by Oath Commissioner.
16. An ex parte decree is to be set aside under the provisions of Order IX, Rule 13, C.P.C. Which visualize two eventualities, one, that it is proved that service of the date was not properly effected and the second precondition is that it is established/proved by the defendant that his absence on the date fixed was under the circumstances beyond his control. This being the legal position and the date as said above was given to be 29-7-1987 on 15-7-1987 was in the presence of the representatives. Hence, no question of proper service arises in this case.
17. Now taking up the second proposition, the respondents have miserably failed to substantiate and to state that their absence on 29-7-1987 and for that matter on 14-11-1987 was within the contemplation of Order IX, Rule 13, C.P.C. The setting aside of ex parte decree is discretion of the Court which is subject to two conditions as envisaged in Order IX, Rule 13, C.P.C. Where neither of the conditions could be fulfilled and order of ex parte decree passed, it will be rather interference in the discretionary powers of the trial Court to set aside such ex parte decree.
' My conclusion of the case is that the appellate Court has wrongly held that the applications were within time. Therefore, I would set aside the appellate order regarding remittance of the case to the trial Court for decision on merits, by allowing Civil Revision No,466 of 1994.
18. Now taking up Application No,134 of 1998, suffice it to say that applicant Yarat Khan remained mum during the trial proceedings and made an application for impleadment only before the appellate Court without giving any reason as to why he waited for couple of years to invoke a right allegedly vested in him. Open auction was conducted as appears in the evidence of the plaintiff- petitioner for which sufficient publicity was given by pasting posters and by beating drum and as claimed by Yarat Khan that he is closely related to Dil Baz absconder, he should have been vigilant and should have either approached the concerned authorities for the sale of suit property or should have associated himself with the auction proceedings. This revision was filed in this Court in the year 1994 and Yarat Khan woke up from slumber only on 10-3-1998 when he filed application bearing Civil Miscellaneous No,134 of 1998. Such delay on part of a party not once but twice by approaching the appellate Court and the revisional Court belatedly, would disentitle him to any relief, even if so available. Therefore, application bearing Civil Miscellaneous No,134 of 1998 is without merits and the same is dismissed.
19. As far Civil Revision No,511 of 1994 is concerned, where the judgment of the learned appellate Judge has held the petitioner therein to be responsible for wilful default, the revision is allowed because the conclusion drawn by learned appellate Judge is on the basis of inferences regarding connivance of the petitioner with Shabbir Hussain. The conduct of Taj Muhammad in filing restoration application on the date next following the date of ex parte decree shows his bona fide to pursue the matter in which he was appointed as representative of the department. Even otherwise, when Taj Muhammad appeared in the witness-box on 18-9-1989, he was though cross- examined but not even suggestion was put to him that he was in league or had any mala fide connection with Shabbir Hussain, the auction purchaser.
' The upshot of the above discussion is that the judgment and decree of the learned appellate Court where remarks passed against Taj Muhammad and his liability to pay Rs,5,000 cost from his own pocket is set aside being not maintainable.