' SYED DEEDAR HUSSAIN SHAH, J.---Leave is sought against order dated 25-10-2001 passed by th'e High Court of Sindh, Karachi, in C.P. No,D-2002 of 1995.
2. Briefly stated the facts of the case are that the petitioner instituted a suit for declaration and permanent injunction claiming certain rights in immovable property against Haji Muhammad Qassim respondent No,1 . Summons issued to the respondent could not be served upon him and the learned Civil- Judge after ordering petition of summons on different dates directed service through publication on 10-11-1992. Thereafter, the suit proceeded ex parte against the respondent and decreed on 21-12-1992. When the respondent came to know about the passing of ex parte decree against him, on 4-2-1993 he filed an application under section 12(2), C.P.C., alleging therein that he had not been served ,and, therefore, the decree was obtained through fraud. On 2-4-1994 the learned Civil Judge dismissed the said application observing that section 12(2), C.P.C. Was not applicable. However, the learned trial Court directed the respondent to file an application under Order IX, rule 13, C.P.C. Thereafter, the respondent filed an application under Order IX, rule 13, C.P.C., but at the same time he also filed an application for revision of the order dated 2-4-1994, which was dismissed on the ground that in view of the pendency of his application under Order IX, rule 13, C.P.C., two proceedings in respect of the same cause of action could not be entertained. However, the respondent's application under Order IX, rule 13,. C.P.C. Was dismissed on 1-8-1995 on the point of limitation. The II-Additional District Judge also dismissed his application for revision on 20-9- 1995.
3. Feeling aggrieved, the respondent filed C.P. No,2002 of 1995, which was accepted by the learned High Court vide impugned order dated 25-10-2001 and the matter was remanded to the Senior Civil Judge for decision afresh. Hence, this petition.
4. The petitioner, who appeared in person, inter alia, contended that the respondent from the very beginning did not approach the proper forum, inasmuch as, after ex parte decree he should have filed application under Order IX, rule 13, C.P.C. But he instituted application under section 12(2), C.P.C.
That the respondent had to file revision application under section 115, C.P.C. Before the District Judge, but he filed the same before the High Court of Sindh, Karachi; that after dismissal of application under Order IX, rule 13, C.P.C., he had to prefer appeal under section 104 read with Order XLIII, rule 1 (d), C.P.C. But he filed the revision application under section 115, C.P.C. Before the District Judge, Thatta; that, after dismissal of revision under section 115, C.P.C. By the High Court, he did not approach this Court; and that the impugned order suffers from legal infirmities, irregularities and is liable to be set aside.
5. We have considered the submissions of the petitioner and have carefully examined the record. It is an admitted position that respondent Haji Muhammad Qasim resided in Karachi and in normal course summons should have been served through the District Judge (East), Karachi. Perusal of the record does not show that efforts have been taken to get the respondent served at Karachi. The High Court while hearing the petition took note of an agreement between the present petitioner and respondent Haji Muhammad Qasim and referred the matter to Mr. Dhabi Bux Dayo, a retired District Judge, who was appointed as Commissioner, to examine and submit the report with regard to diverse claim of the parties with further direction that report should be submitted within three months, and after receipt of his report; further orders would be passed. The Commissioner after holding several hearings and examining the record submitted his report dated 13-5-1998 with the conclusion that the respondent in fact did not reside at the address given in the plaint when the summons were issued and that there was no proof of the fact that the trial Court took serious steps to effect personal service of the respondent before publication of notice in press was ordered. The learned High Court was well-conscious about the limitation of its jurisdiction with regard to orders passed by the Civil Courts, and the learned Members of the Bench found that the respondent was non-suited and ex parte decree was passed against him without proper service, therefore, he was condemned unheard, which is against the natural principle that no one should be condemned unheard. All these aspects were considered by the learned High Court, and after examination of the record available passed the impugned order. It would be advantageous to refer to the relevant paragraphs of the impugned order, which run as under:-- "8. Indeed the aforesaid position was made clear when this Court observed while disposing of the Revision Application No,233 of 1994 that the petitioner could either file an appeal against the ex parte decree or attempt to get set aside under Order IX, rule 13, C.P.C. Learned Additional District Judge instead of granting benefit of section 14 of the Limitation Act proceeded to follow the same approach while dismissing the petitioner's application for revision. We are mindful of the principle laid down in the case of Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97) that refusal to exercise jurisdiction vested by law is to be treated on the same footing as assumption of jurisdiction of vested by law. In our opinion, therefore, there is jurisdictional error in the order passed by the Courts below.
9. As regards the question whether the decree ought to have been set aside under Order IX, rule 13, we would have normally remanded the matter to the learned trial Court to decide the same.
Nevertheless in view of the findings of the Commissioner, appointed with the consent of the parties, recorded after detailed examination of the Court diaries, and all relevant facts and law, we think no useful purpose will be served. Therefore, keeping in view the well-settled principle that case should be preferably decided on merits, remanded the case to the learned Senior Civil Judge with direction to proceed with the case from the stage when the ex parte decree was passed and conclude the same within six months."
6. We are of the view that the impugned order is based on the principles laid down by this Court and does not call for interference by us. Moreover, in this petition, question of public importance, as contemplated under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, is not involved.
7. Resultantly, the petition sans merit, which is dismissed and leave to appeal is declined.