' I intend to decide the following writ petitions by one consolidated order having similar facts and law:--
(i) Writ Petition No,3207 of 2003 and (ii) Writ Petition No,8208 of 2003.
2. The brief facts out of which the abovementioned writ petitions arise are that the petitioners filed suits for pre-emption against the private respondents. The trial Court issued summons to the respondents which were received by the. Father of the private respondents. Mian Abdul Majeed Khokhar, Advocate entered appearance on behalf of the private respondents. The trial Court granted three opportunities to the said Advocate to file the written statement on behalf of the private respondents. Learned counsel of the respondents failed to file written statement.
Consequently defence of the respondents was struck off and ex parte order was passed by the trial Court against the respondents. Ex parte evidence was also recorded. The respondents filed application under section 151, C.P.C. Before the trial Court for recalling the ex parte order dated 7-3- 2002. The trial Court dismissed the same vide order, dated 6-11-2002. Respondents being aggrieved filed revision petition before the Additional District Judge, Gujranwala who accepted the same vide judgment, dated 12-5-2003. The petitioner being aggrieved filed these writ petitions.
3. Learned counsel of the petitioners submits that order of the trial Court was valid and in accordance with the mandatory provisions of the C.P.C. Whereas the judgments of the revisional Court are in derogation of the mandatory provisions of C.P.C. He further submits that service was duly effected as is evident from the report of the process-server as the father of the respondents was intimated the date of hearing. The father of the respondents must have informed the respondents that is why the aforesaid Advocate entered appearance before the trial Court and secured three adjournments to file written statement. He further submits that respondents filed revision petitions before the Additional District Judge through general attorney. The address of the attorney is the same which was mentioned about private respondents by the petitioners in their suits. The respondents did not file application for setting aside ex parte' orders within 30 days.
4. I have given my anxious considerations 'to the contentions of the learned counsel of the petitioner and perused the record myself.
5. It is admitted fact that summons were issued by the trial Court. The report of the process-server reveals that private respondents had left the country for Saudi Arabia before issuing the summons or filing the suits by the petitioners. Their service was not effected in accordance with law. The trial Court erred In law to dismiss the application for setting aside the ex parte order, dated 7-3-2002 vide orders, dated 6-11-2002 whereas the revisional Court passed the orders after applying its independent mind after proper appreciation of evidence on record and has given the following findings against the petitioners.
"In these circumstances, it is held that the defendants/petitioners, who were living abroad, have not been served through process of Court, nor the counsel Mian Abdul Majeed Khokhar, Advocate, could have been termed as authorized agent, who has filed memo. Of appearance and apprised the Court meanwhile, therefore, order striking off the defence of the defendants dated 7-3-2002 could not be passed legally, therefore, petition for recalling that order was dismissed by the, learned trial Court vide impugned order, dated 6-11-2002 is also based on misconception of law on the subject."
It is settled principle of law that this Court has no jurisdiction 'to substitute its own findings in place of the findings of the Courts below while exercising Constitutional power as per principle laid down by the Division Bench of this Court in Musaddaq's case PLD 1973 Lah.
600. After.Addition of Article 2A in the Constitution the superior Courts insist that the controversy must be decided on merits instead of technicalities as per principle laid down by the Honourable Supreme Court in Said Muhammad's case PLD 1989 SC 532. It is also settled principle of law that Constitutional jurisdiction is a discretionary in character. Substantial justice has been done between the parties, therefore, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Nawab Raunaq Ali's case PLD 1973 SC 236. It is well-established law that the agent must be duly authorized to accept the notices and the authority to accept the service of notices as agent must be in writing. In arriving to this conclusion, I am fortified by the law laid down in Hazari Dasi v. Daiba Charan Mandal and others 1971 DLC 663, Mst. Razia Sultana v. Chairman, Evacuee Trust Property Board, Lahore 2002 CLC 1257, Ms. Idress Barry & Co. v. Commissioner of Income-tax West Pakistan PLD 1960 Lah. 852, Muhammad Idress Barry & Co., Lahore v. Commissioner Income-tax Punjab and N.-W.F.P. PLD 1957 Lah. 270 and Qasim Ibrahim Saleji v. Johurmul Khemka AIR 1916 Cal. 181(2). It is also pertinent to mention here that basis on which father was treated as agent not mentioned in the report of the process-server, therefore, service upon the respondent is not in accordance with law. In arriving to this conclusion, I am fortified by the law laid down in Emadul Karim v. Habibullah and others 1969 DLC 399. It is also settled principle of law that whether defendant/respondent is absent for indefinite period, then he is said to be not found at the residence mentioned in the title of the suit. In arriving to this conclusion, I am fortified by the law laid down in Muhammad Sahib v. A.P.R.L. Alagappa Chettiar AIR 1926 Mad.
31. No power of attorney or written statement filed on behalf of the respondents by the Advocate who had entered appearance without securing power of attorney from the respondents then the ex parte order passed by the trial Court was not proper, therefore, it was sufficient ground to set aside the ex parte decree. In arriving to this conclusion, I am fortified by the law laid down in Muhammad Khan v. Mir Khan PLD 1987 Kar.
363.
' In view of what has been discussed above, these writ petitions have no merits and the same are dismissed.