' TANVIR AHMED KHAN, J.---By this common order, we propose to decide Civil Petitions Nos.1524-L and 1525-L of 2000 involving identical questions of facts and law.
2. Leave to appeal is sought against the judgments dated 18-6-1998 and 26-4-2000 whereby Constitutional Petitions bearing Nos.5113 and 5114 of 1998 as well as Review Applications bearing Nos.15 and 16 of 1998 were dismissed respectively.
3. Facts briefly are that two declaratory suits claiming ownership in possession of landed property were filed by the respondents against the petitioners. They succeeded in securing ex parte decrees on 15-11-1990 and 22-4-1993 respectively from the Court of learned Civil Judge, Taunsa Sharif. The petitioners in both these petitions filed separate applications under section 12(2) read with Order 9, rule 13, C.P.C..For setting aside the ex parte decrees on the ground that those had been secured through fraud and misrepresentation as petitioner No,1, Fateh Muhammad was minor both at the time of the institution of the suits as well as passing of the decree. Further the service was not effected and no opportunity whatsoever was provided to them to put up their case.
4. The learned Civil Judge took up both these applications, framed the issues separately and after recording the evidence, dismissed the aforesaid applications vide his orders dated 6-12-1995 and 20-12-1995. The civil revisions against the same were also dismissed by the learned Additional District Judge, Taunsa Sharif, on 2-4-1998. The petitioners filed Constitutional Petitions Nos.5113 and 5114 of 1998 against these judgments, both of which were dismissed through a consolidated judgment dated 18-6-1998. Two Review Petitions bearing Nos.15 and 16 were filed which too were dismissed by the learned Single Judge through his judgment dated 26-4-2000. Hence, these petitions for leave to appeal.
5. We have considered the contentions raised by the learnedcounsel for the parties. We are not dilating upon themerits of the case in view of the nature of order which we are going to pass. We have noticed from the documents appended with these petitions that the learned Civil Judge 1st Class, Taunsa Sharif in his order dated 6-12-1995. Held that the petitioner, Fateh Muhammad was not minor as in this regard he. Only submitted his School Leaving Certificate, which was disbelieved. The learned Judge further stated that the service upon them was properly effected.
The operative part of the judgment dated 6-12-1995 of the learned Civil Judge is reproduced below:-- "9. In order to prove the fact of minority of Fateh Muhammad petitioner, the petitioners have placed on record School Certificate as Exh.A.1. The petitioner Fateh Muhammad has not appeared in the Court nor examined his father to depose that Fateh Muhammad petitioner is still minor. The contention of the respondents on the other hand is that Fateh Muhammad petitioner was major at the time of proceedings of the suit. The petitioners have considered School Certificate (Exh.A.1) sufficient to prove the minority of Fateh Muhammad petitioner. In the absence of statement of any close relative of Fateh Muhammad, this Certificate (Exh.A.1) is not reliable proof of the fact that such entry was made on his father's admission. The entry of date of birth in school register is held inadmissible in evidence. In this regard the reliance can be placed on Muhammad Hussain v.
Muhammad Nawaz PLC 1969 Jour.111. The above discussion leads me to hold that the petitioner Fateh Muhammad has failed to prove himself minor at the time of institution of the suit."
However, we have noticed that the same learned Civil Judge in another case between the same parties had held otherwise on 20-12-1995. He observed that the petitioner Fateh Muhammad was minor and Reader of the Court was appointed his guardian. The same is also reproduced as under:-- "10. The first objection of the applicants is that Fateh Muhammad was minor and his guardian was not appointed by the Court. I have perused the. Original file in a suit titled Ghulam Sarwar v. Fateh Muhammad Khan and order dated 28-2-1993 shows that Reader of the Court was appointed a guardian of the minor. This fact is also evident from Exh.P.1. The Reader of the Court submitted written statement on behalf of the minor which is evident from Exh.R.2. From these facts it can be safely concluded that matter was brought into the notice of Court 4nd Court appointed guardian of the minor in accordance with law. This objection of the applicants is without any legal force."
6. We asked that learned counsel for the respondents to give any satisfactory reply to this contradictory determinations of the learned trial Court on the same issue of minority of petitioner Fateh Muhammad. He could not say a single word about these contrary observations of the learned Civil Judge. He simply stated that the applications for setting aside the ex parte decrees were time-barred and the petitioners never took this plea earlier.
7. We are afraid, this stance taken by the learned counsel for the respondents is devoid of any force. The learned Additional District Judge as well as the learned Single Judge of the Lahore High Court has not properly appreciated these contradictory findings of the learned trial Court.
8. In this view of the matter, we convert these petitions into appeals, accept the same, set aside the judgments and orders impugned in these petitions and remand the same to the learned Civil Judge to decide the matters afresh expeditiously. There shall be no order as to costs.