' After having heard the parties we are of the view that complication arose through adoption of hypertechnical approach on the part of the Court below. We would, for reasons to be recorded later, allow this petition and remand the matter to the learned Senior Civil Judge, Thatta who will, keeping in view the fact that this is a very old dispute, decide the suit within six months from the date when the parties appear before him and report compliance. Both parties will appear before the learned Senior Civil Judge on 12-11-2001 and office will ensure that this order as well as record is duly dispatched to enable the learned Senior Civil Judge to proceed with the case from the stage when ex parte decree was passed.
' The respondent No, 3 had filed a suit for declaration and permanent injunction claiming certain rights in immovable property against the petitioner in the Court of respondent No, 2 i,e, Senior Civil Judge appears that summons could not be served on the petitioner and the certified copy of the diary sheet neither indicated that it was impossible to effect service on the petitioner the petitioner was avoiding service. Nevertheless the learned Civil Judge after directing repetition of summons on different dates ordered service through publication on 10-11-1992. Thereafter, the suit proceeded ex parte against the petitioner and was decreed vide judgment dated 21-12-1992. It may be pertinent to mention that the petitioner resided in Karachi and though summons were to be served through District Judge, East, Karachi, there is nothing available on record to indicate that any attempt to effect service had been taken in Karachi, though a request from the trial Court appears to have been made.
2. Be that as it may, the petitioner apparently upon acquiring information as to the ex parte decree made an application dated 4-2-1993 under section 12(2), C.P.C. Alleging that he had not been served and therefore, the decree was obtained through fraud. The learned Civil Judge vide order dated 2-4-1994 proceeded to hold (and perhaps rightly so) that section 12(2) was not attracted.
He, therefore; dismissed the application leaving it open to the petitioner to file an application under Order 9, rule 13, C.P.C.
3. The petitioner, therefore, moved an application under Order 9, rule 13, C.P.C. Before the learned trial Court. At the same time however, he also filed an application for revision against the order dated 2-4-1994, which was dismissed by this Court on the ground that in view of the pendency of his application under Order 9, rule 13, C.P.C., before the trial Court, two proceedings in respect of the same cause of action could not be entertained'.
4. However, the petitioner's application under Order 9, rule 13, C.P.C. Came to be dismissed by the trial Court on 1-8-1995, on the sole ground that it was barred by limitation. It was held that the petitioner had admittedly acquired knowledge of the ex parte decree about one week before filing the application under section 12(2), C.P.C. On 4-2-1993 and the application filed on 3-4-1994, was hopelessly time-barred. The petitioner preferred an application for revision before the District Judge, which was dismissed on 20-9-1995.
5. Thereafter, the petitioner impugned the two orders by way of the present petition. On 19-2-1998 this Court being conscious of the limited scope Of interference in the exercise of Constitutional jurisdiction with respect to orders passed by Civil Courts took note of an agreement between the petitioner and the respondent No, 3 to refer the matter to Mr. Dhani Bux Dayo, a retired District Judge who was appointed Commissioner to determine the merits of the diverse claims of the parties and directed the Commissioner to submit his report within three months, whereafter further line of action would be called out.
6. It appears that the Commissioner held several hearings but by an elaborate report dated 13-5- 1998, recorded his conclusion to the effect that the petitioner did not in fact reside at the address given in the plaint at the time when summons were issued and there was no proof of the fact that any serious effort to effect personal service had been undertaken before the publication was ordered.
7. We have heard Mr. Ali Gohar Soomro, learned counsel for the petitioner as well as respondent No, 1 in person. While being conscious as to the limitation of our jurisdiction with respect to orders passed by Civil Courts we are inclined to think that miscarriage of justice has taken place on account of a hypertechnical approach adopted by the respondents Nos. 1 and 2. It is axiomatic that rules of procedure are intended to foster the cause of justice and technicalities should not be allowed to thwart the due course of dispensation of justice. Indeed the learned Civil Judge was correct in observing in his order dated 2-4-1994, that Order 9, rule 13, C.P.C. And not section 12(2), C.P.C. Was attracted in the circumstances of the case. He nevertheless overlooked the well-settled principle that merely a wrong mention of a statutory provision should not disentitle a party to relief, which is otherwise available to him under the law. Therefore the proper course to be adopted by him was to treat the application as one under Order 9, rule 13, C.P.C. And pass orders according to law.
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 9, 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 ease of Muhammad Swaleh and another v. Messers United Grain and 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 not 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 9, 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 principal 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.