Petitioners/plaintiffs filed suit against the respondents/defendants for declaration and perpetual injunction in the Court of learned Senior Civil Judge/Aala Illaqa Qazi, Swat, The said suit was decreed ex parte in favour of petitioners/plaintiffs vide judgment and decree dated 14-31997.
Having come to know about the ex parte decree, respondents filed an application for setting aside ex parte decree, which was dismissed vide order dated 12-4-1997. He filed an application for restoration of the previous application on 14-4-1997 which too was dismissed for non-prosecution on 25-7-1997. The respondents filed a second application for restoration of their earlier application on 28-7-1997 but the same was again dismissed for non-prosecution on 22-9-1997. They filed yet another application i,e, third application for restoration of their earlier application on 29-10-1993.
The said application met the same fate when it was dismissed vide judgment/order dated 2-10- 1999. Respondents filed appeal in the Court of learned District Judge/Zilla Qazi, Swat, which was allowed vide order dated 6-6-2000. Being not content with the said orders the petitioners filed Civil Revision No,404 of 2000 before this Court which was allowed vide judgment/order dated 24-1-2003 and the case was remanded to the learned Appellate Court with certain observations. On receipt of the case file the learned Appellate Court allowed the appeal vide judgment/decree dated 19-7- 2003 ex parte order passed against the respondents was set aside and the learned trial Court was directed to decide the suit after recording evidence of the parties. Being not satisfied with the judgment and decree passed by the learned Appellate Court the petitioners have filed the revision petition in hand.
2. Mr. Ziaur Rehman, the learned counsel representing the petitioners argued that the learned Appellate Court has discarded the directions of this Court and has proceeded on wrong premises.
The appeal of the respondents was-barred by time, which was wrongly treated as within time.
3. It was also argued that only Ihsanullah had filed applications for setting aside ex parte decree and for, restoration of his earlier application and Wt. Nighat Aman had not filed any application for restoration or for setting aside ex parte decree, but the learned Appellate Court without scrutiny of the record has allowed the same while setting aside the ex parte decree.
4. I have heard the learned counsel for the petitioners and perused the available record.
5. Perusal of the record shows that in the main suit 9-1-1997 was fixed for filing written statement/written reply by respondents but on the said date the learned Presiding Officer of the Court was not present, hence the date was adjourned on the note of the Reader. On the adjourned date also the Presiding Officer of the Court was not available, hence the case was adjourned on note of the Reader and case was posted for 14-3-1997, on which date ex parte decree against the respondents/defendants was passed. The question that requires consideration in this case is as to whether ex parte decree could be passed when the date was not fixed for hearing, answer to this question is in negative. The admitted position is that on 9-1-1997 and the following date was adjourned on the note of Reader. When the date was adjourned on the note of Reader, the next date "was not the date of hearing", as held by the august Supreme Court of Pakistan in Nosheri Khan v. Said Ahmad 1983 SCM R 1092.
6. The learned trial Court while dismissing the application for restoration of setting aside the ex parte decree and its restoration did not appreciate that the order dated 14-3-1997 when the ex parte decree was passed against the respondents "was not date of hearing" and no ex parte decree could be passed on the said date, therefore, the impugned jugment/Order passed by him was not proper as held in Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97. The learned Appellate Court has rightly appreciated the position.It has done substantial justice. Even otherwise the law demands that the dispute be decided on merits and technicalities should not become hurdle in the way of justice. "Since the learned Appellate Court has rightly appreciated the position, therefore, I do not feel inclined to interfere with the impugned order. Resultantly, the revision petition is dismissed in limine.