This Civil Revision Petition under section 115, C.P.C. Has been directed against appellate judgment and decree dated 13-11-2001 passed by the learned Additional District Judge, Pishin whereby the appeal filed by the respondent against ex parte order dated 23-6-2001 and ex parte decree dated 6-7-2001 and order dated 15-9-2001 passed by the learned Civil Judge, Chaman were set aside and the suit filed by the petitioners was remanded to the learned trial Court to decide the same on merits by commencing with the proceedings from the stage when ex parte order was passed.
2.. The precise facts of the case are that the petitioners filed civil suit for declaration and perpetual injunction against the respondent in respect of landed property comprising of five 'Qitats' situated in MahalLoiKundi, MauzaHabibzai, Circle Mezai, Tehsil Gulistan, District Killa Abdullah bearing Khasra Nos.1391 described in detail in para. No,2 of the plaint. In the suit following reliefs were claimed:--
(i) That the plaintiffs are legal and lawful owners and occupants of 5 pieces of lands, described in detail in para. No,1 of the plaint.
(ii) That the defendant has absolutely no concern whatsoever or any interest, right or title in the property being made as subject-matter of the suit, described in para. No,1 of the suit.
(iii) That to restrain permanently the defendant, to not claim or poses himself as owner and a person having any right or title whatsoever in the property being made as subject-matter of the suit, and also to restrain the defendant permanent to not intervene in the lands and property described in para. No,1, of the plaint, and to direct the defendant to not harass, threat or make any hurdle in the way of plaintiffs, their peasants, contractor and any other concerned person.
(iv) Any other relief as deemed fit and proper in the circumstances of the case, may also be awarded and given to the plaintiffs.
(v) Cost of the suit may also be awarded in favour of plaintiffs. The respondent/defendant by means of written statement dated 12-8-2000 contested the suit and repudiated the claim of the petitioners on various grounds of law and facts as well as the application for grant of interim injunction was also contested by the respondent by means of the rejoinder filed by him.
3. Out of pleadings of the parties the learned Civil Judge, Chaman (hereinafter referred to as the learned trial Court) on 9-9-2000 framed the following issues:-
(1) Whether the suit is not maintainable on the ground of preliminary legal objection A &D of the written statement ?
(2) Whether the suit land exclusively belongs to the plaintiffs?
(3) Whether the defendants are entitled to 1/2 share in the suit-land?
(4) Whether the mutation entries on the names of the plaintiffs are fraudulent or otherwise?
(5) The relief?
4. The petitioners/plaintiffs in support of their case produced three witnesses namely Muhammad Ali (P.W.1), Anwar Ali Patwari (P.W.2) and Rafiullah examined on 16-4-2001 as (P.W.3). P.Ws. Nos.1 and 2 respectively were produced on 26-9-2000 and 13-2-2001 and both the witnesses were cross- examined by the counsel for the respondent/defendant, whereas; P.W. Rafiullah could not be cross-examined on behalf of the defendant for the reason that on the said date no one appeared for the respondent/defendant and the learned trial Court struck off the right of cross-examination of the defendant for such reason. On a date subsequently fixed in the matter i,e, 23-6-2001 when the case was fixed for hearing of a Miscellaneous Application and evidence but respondent/defendant absented himself and no one appeared on his behalf consequently; was proceeded ex parte. It is worthwhile to note that statement .Of the petitioner No,1 (Muhammad Yusuf) and as attorney for petitioner No,2 was recorded by the learned trial Court on 19-4-2001, copy whereof has been annexed with the memo. Of revision petition but it is not evident from the copy that the right of cross-examination on this witness was availed by the defendant or otherwise, nor copy of the order sheet of even date on which statement of the plaintiff was recorded, has been filed with the revision petition however; Mr.Mujeeb Ahmed Hashmi explained that a Miscellaneous Application was filed by the defendant requesting the learned trial Court to grant opportunity in the interest of justice to avail right of cross-examination on the statement of P.W.
Muhammad Yusuf which is pending disposal with the learned trial Court after remand of the case by the Appellate Court. Also on the same date i,e, 24-5-2001 another Miscellaneous Application was filed by the respondent/defendant pointing out therein that his foot was fractured and he was sick with the result that he failed to contact his counsel, therefore, the appointed counsel withdrew his Vakalatnamaand also copies of certain documents which he intends to prove in defence have lately been received due to sickness and physical incapacitation, therefore, in the interest of justice he be permitted to file the same in Court. These two Miscellaneous Applications appear to have not been disposed of by the learned trial Court and subsequently on 23-6-2001 ex parte order was passed against the defendant. Ultimately the learned trial Court relying upon evidence produced by the plaintiffs/petitioners decreed the suit as ex parte in favour of the plaintiffs on 6-7-2001. After passing of the ex parte decree the respondent filed an application under Order IX., Rule 13, C.P.C. Seeking for setting aside of ex parte decree passed on 6-7-2001 on the ground that on 23-6- 2001 his counsel was busy in the Court of learned District Judge, Pishin in other cases and also a telegram was sent to the Court on the same date that due to fracture of his foot he was unable to travel and appear in Court on 23-6-2001 and that the Miscellaneous Applications already filed by him seeking permission to file documents alongwith list of witnesses and sought for opportunity in the interest of justice to avail right of cross-examination on the statement of P.W. Rafiullah and the plaintiffs, be granted therefore, in these circumstances ex parte order as well as ex parte decree passed by the learned trial Court deserves to be set aside. This application was contested by the petitioners/plaintiffs by means of rejoinder dated 16-8-2001 and the learned trial Court after hearing the parties' learned counsel vide order dated 15-9-2001 rejected the application. The respondent feeling himself aggrieved of the abovesaid orders and ex parte decree filed appeal in the Court of learned District Judge, Pishin on 1-10-2001 and the same was sent for disposal to the learned Additional District Judge, Pishin (Civil Appeal No,43/01). The learned Appellate Court vide judgment and decree impugned herein set aside the orders impugned in appeal as well as the ex parte decree and remanded the case to the learned trial Court for proceedings on merits to be conducted from the stage when ex parte order was passed. The appellate judgment/decree has been assailed by the petitioners before this Court.
5. The learned counsel for the parties have been heard. Mr.Azizullah contended that appeal filed by the respondent against ex parte order as well as ex parte decree was barred by time and despite such ground having been urged specifically during course of arguments was not taken notice of by the learned Appellate Court and secondly no sufficient cause was shown by the respondent for setting aside of the orders and the ex parte decree hence; the impugned appellate judgment is liable to be set aside..
6. Mr. Mujeeb Ahmed Hashmi contended that there was no legal and factual justification on the part of the learned trial Court to have passed ex parte order against the respondent/defendant for the reason that the case was not fixed for hearing and secondly already two Miscellaneous Applications were filed by the defendant which were pending disposal with the trial Court and thirdly telegram was duly received in Court whereby the defendant sought for adjournment due to sickness and of his physical incapacity to travel and appear in Court on account of fracture of his foot yet; the learned trial Court passed ex parte order on 23-6-2001 and subsequently decreed the suit ex parte. According to the learned counsel sufficient cause was shown for setting aside of the ex parte order and ex parte decree but the learned trial Court on unsustainable grounds rejected the application, therefore, in such circumstances and in view, of undisputed facts on record, the appellate judgment is unexceptionable.
7. The contentions put forth by the parties' learned counsel have been considered in the light of the impugned appellate judgment as well as the ex parte order passed by the learned trial Court on 23-6-2001, Order dated 15-9-2001 whereby application filed under Order IX, Rule-13, C.P.C. Was rejected by the trial Court and the other documents including Miscellaneous Applications filed by the respondent in the trial Court, copies whereof have been annexed with the memo. Of revision petition which have been gone through carefully. Admittedly ex parte order was passed by the learned trial Court on 23-6-2001 against the defendant and prior to that three P. Ws. Were produced in evidence by the plaintiffs, out of whom P. Ws. Nos.1 and 2 were cross-examined on behalf of the defendant, whereas; right of cross-examination was struck off on the statement of P.W. Rafiullah produced on 164-2001 on account-of default in making appearance in Court by the defendant and his counsel; whereas; statement of the plaintiff namely Muhammad Yusuf for himself and as attorney for the other plaintiff was recorded on 194-2001 and as hereinabove noted it does not appear from the copy of the statement of the plaintiff No,1 that right of cross- examination was afforded to defendant or otherwise and on the said date no one appeared for the defendant. On 24-5-2001 two separate Miscellaneous Applications were filed by the defendant in the trial Court. In one of the applications request was made that in the interest of justice the defendant may be allowed to cross-examine P.W. Rafiullah and the plaintiff as due to fracture of his foot he failed to contact his appointed counsel Mr.Qasim Marwat, Advocate and the learned trial Court struck off the right to cross-examine P.W. Rafiullah and the right to cross-examine the plaintiff is yet to be availed. In the other Miscellaneous, Application it was pointed out that due to fracture of his foot the defendant failed to contact his previous counsel who consequently; withdrew his Vakalatnama and on account of sickness he was suffering, he could not file documents in Court with the list of witnesses accordingly for these reasons it was prayed in the application that some time may be allowed to him so that he may be able to file the documents in the Court in support of his case. It is pertinent to note that all the relevant order-sheets except a few, have not been annexed with the memo. Of revision petition and it appears from the copy of order-sheet dated 19-6-2001 that the petitioners' counsel as well as the respondent on this date were present in Court and reply to an application was not filed and the case was adjourned to 23- 6-2001 for evidence, reply and arguments on Miscellaneous Application on which date when case was taken up the defendant was absent, therefore, he was proceeded ex parte and the case was adjourned to 6-7-2001 and ex parte decree was passed in favour of the plaintiffs on the said date.
After that application for setting aside of ex parte decree and ex parte order was filed by the defendant which were contested by the petitioners by means of rejoinder dated 16-8-2001 and the learned trial Court vide order dated 15-9-2001 rejected the same. The respondent on 1-10-2001 assailed the abovesaid order and decree by filing appeal. Reverting to contention of the petitioners' learned counsel that appeal filed by the respondent against ex-pane order and ex parte decree was barred by time; is without any substance for the reason that two alternatives were available to the defendant i,e, either to file appeal against the ex parte order and the expane decree or to file an application in the trial Court seeking for setting aside of ex parte decree and ex pane order. Out of the available remedies the defendant chose to avail the latter remedy by filing application under Order IX, Rule 13, C.P.C. Which ultimately was rejected by the learned trial Court vide order dated 15-9-2001 hence in such view of the matter the option of remedy availed by the defendant seeking for setting aside of ex parte decree being the continuity of proceedings arising out of the ex parte order and ex parte decree cannot be ignored in taking the appeal to have been independently and directly tiled against the ex parte order and ex pane decree and thus to non- suit the defendant to have not tiled the appeal within prescribed period of limitation. Such an approach obviously in the given facts of the case is not only unsound but misconceived as well. In my considered view since one of the available remedies for setting aside' of ex parte decree and ex pane order by filing application under Order IX, Rule 13, C.P.C. Was availed by the defendant and on rejection of the application vide order dated 15-9-2001 he filed appeal in the. Court of learned District Judge, Pishin within the prescribed period of limitation, therefore, the same being a continuity of proceedings permissible under the law, the appeal filed by the defendant challenging last mentioned order as well as the ex parte decree and the ex parte order would not be treated as barred by time provided the appeal as in the instant case was filed within time from the date of the order passed on the application filed under Order IX, Rule 13, C.P.C. It is worthwhile to note that initially the case was pending trial in the Court of learned Senior Civil Judge, Pishin and was transferred to the Court of Civil Judge, Chaman accordingly the same was registered as such with the learned transferee Court on 8-6-2001 and notice was directed to be issued to the parties for 19-6-2001, on which date as hereinabove noted, the plaintiffs' learned counsel as well as the defendant were present and the case was adjourned for evidence to 23-6- 2001 as well as for arguments on a Miscellaneous Application. The defendant absented' himself on 23-6-2001 when the case was taken up by the learned trial Court, accordingly was proceeded ex parte and the case was adjourned to 6-7-2001 for orders. The learned trial Court on this date i,e, 6- 7-2001 passed ex parte decree in favour of the plaintiffs. In the order dated 15-9-2001 whereby application filed by the defendant under Order IX, Rule 13, C.P.C. Was rejected it was specifically observed that on 23-6-2001 a telegram was received from the counsel of the defendant seeking for adjournment but as ex parte order was already passed and the case was fixed for orders/judgment on 6-7-2001 yet during the intervening period i,e, till date on which the ex parte decree was passed, since no application was filed for recalling the ex parte order and such a conduct showed lack of interest on the part of the defendant and designed to vex the plaintiff, therefore, the request as made in telegram was declined, resulting into rejection of the application filed under Order IX, Rule 13, C.P.C. By the defendant. Such an approach on the part of the learned trial Court, meant and designed for administration of justice appears to be highly unjust, unfair and inequitable to refuse to set aside the ex parte order and ex parte decree merely because during intervening period i,e, prior to the passing of the ex parte decree application for setting aside of ex parte order was not filed by the defendant and more particularly for the reason that the case for the first time was fixed for evidence of defendant on 23-6-2001 when he failed to appear in Court, order for taking ex parte proceedings was passed and the case was adjourned to 6-7-2001 for announcement of judgment. Moreover; as hereinabove noted prior to the passing of ex parte order two separate Miscellaneous Applications were filed by the defendant in the trial Court on 24-5- 2001 pointing out therein that due to sickness and fracture of his foot he remains unable to move and also failed to contact his counsel with the result that his appointed counsel withdrew his Vakalatnama and also request was made in the applications that sometime be allowed to him to file documents etc. In Court as well as opportunity to cross-examine P.W. Rafiullah and the plaintiff was also sought for but these applications appear to have not been disposed of by the Court and secondly on the ground of sickness etc. The ex parte order and ex parte decree passed by the learned trial Court was also sought for to be set aside but the learned trial Court did not consider the ground of sickness of the defendant while disposing of the application filed under Order IX, Rule 13, C.P.C. And thus contrary to the well established principles of administration of justice, readily and without applying its mind to the facts of case regarding 'a sufficient cause' shown, as well as; already existing on record rejected the application filed under Order IX, rule 13, C.P.C. By ignoring the well-recognized principle of law that dispute between the parties always to be adjudicated on merits as a general rule in absence of exceptional reasons and that penal provisions of the law to be strictly followed. The learned counsel for the petitioners failed to point out any impropriety or illegality in the impugned judgment which is based on good grounds supported with the reasons borne on record hence the same is unexceptionable and not open to any interference by this Court in the exercise of revisional jurisdiction. Consequently; this Civil Revision Petition being devoid of any substance, is dismissed, leaving the parties to bear their own costs.