' On 12-12-1993 respondent No,1 filed a suit against the petitioner and respondent No,2. It was stated in the plaint that plot mentioned in para.1 of the plaint was allotted by respondent No,2 to the petitioner and possession was delivered to him on 18-11-1980. Through an agreement the petitioner sold it to respondent No,1 for Rs,1,50,000 which amount was received by him. An agreement was executed acknowledging the receipt of consideration and an irrevocable general power of attorney was also executed. Respondent No,2 was also informed accordingly. Thereafter respondent -No, ,alt a plan sanctioned and built a BunPatow. It was then stated that the petitioner has cancelled the power of attorney on 8-11-1993, that the cancellation was stated to be illegal and void. Further protection under section 53-A of the Transfer of Property Act, 1882, was sought. The petitioner appeared and filed a written statement denying the allegation that he had sold the plot or had received the consideration. He asserted that Bungalow has been build by him. After filing of the written statement in Court on 28-2-1994 the case was adjourned to 5-3-1994 for arguments on the application for grant of temporary injunction. It was then adjourned for the said purposes to 8- 3-1994. On this date following order was passed:-- {{URDU TEXT}} ' On 10-3-1994 following order was passed:-- {{URDU TEXT}} ' Record shows that evidence was not available and the suit was being adjourned for recording of ex parte evidence. Now it is not apparent as on what exact date but certainly within the same month i.e, March, 1994, an application was filed for setting aside of the ex parte proceedings. The learned trial Court started recording orders in the said application in a separate order-sheet. Some of these orders have been placed on the file. According to the copy of orders at page 45 of the paper book the suit used to be taken up simultaneously with the said application on 29-3-1994, 2- 4-1994 and 7-4-1994. Whereas the petitioner was marked present in the orders passed in. The said application, he was not being marked at all in corresponding orders passed in the suit, Be that as it may, the application for review was filed stating that application was dismissed on 7-4-1994. On 11- 4-1994 an, application for review was filed stating that application for setting aside ex parte proceedings has been dismissed on the sole ground that whereas the application has been filed through an attorney, power of attorney has not been placed. Prayer made was that copy of the power of attorney was filed on record on 24-1994 and the original is being appended with said application. No order was passed on this application till 19-2-1995 when learned trial Court directed that the application be presented alongwith file on 22-2-1995.
2. Now the petitioner filed an appeal against the said order, dated 7-4-1994 which was dismissed on 3-1- 1995. On 22-2-1995 the presence of the counsel for the plaintiff/respondent No,1 was marked and it was noted that file has been received back from Court of learned District Judge, the petitioner has already been proceeded against ex parte and the application for setting aside ex parte order has been dismissed on 7-4-1994. The said application for review filed on 11-4-1994 was dismissed for non-prosecution. Remaining ex parte evidence was recorded and the suit was decreed ex parte,
3. On 8-3-1995 the petitioner filed an application for setting aside of the said ex parte decree which was dismissed by learned trial Court on 26-6-1995. A first appeal filed by the petitioner was dismissed by learned District Judge, Jhelum on 6-12-1995.
4. Learned counsel for the petitioner contends that the entire edifice of orders and decrees and consequent dismissal of the applications is coram non judice and utterly without jurisdiction inasmuch as the initial order for ex parte proceedings was passed on a date on which the suit was not fixed for hearing and only part heard matter of the application for grant of temporary injunction was fixed which of course was decided by learned trial Court. Further contends that even if the only reasoning given by the learned Courts below that application for setting aside of the ex parte proceedings having been dismissed and dismissal affirmed in appeal, decree could not have been set aside, is taken on its face value. It is apparent on the face of record that the petitioner was not allowed to join the proceedings, when he was continuously present in Court.
5. Sh. Zamir Hussain, learned counsel for respondent No,1 has tried to support the impugned orders by stating that since the matter of setting aside of ex parte proceedings stood finalized, on the same ground the ex parte decree could not have been set aside.
6. I have examined the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. I have already narrated the entire history of this case above. I have reproduced the order, dated 8-3-1994 on which the learned trial Court partly heard the stay application and adjourned the case to 10-3-1994 for hearing of the arguments of the petitioner's counsel and announcing order on the application. To my mind, by no stretch of imagination can it be said that 10-3-1994 was a date in the suit itself or for that matter that the suit was called for hearing on the said date. I may refer to the case of Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949). In the said case 27-3-1986 was fixed as date for hearing of arguments on the application for temporary injunction. The appellant before their lordships, who was plaintiff in case, did not appear. Learned Civil Judge dismissed the suit for non-prosecution. Three applications were filed successively for restoration of the suit and were dismissed. An appeal was dismissed by a learned Additional District Judge. This Court dismissed the civil revision. Mr. Justice Saad Saood Jan (as his Lordship then was) in his leading opinion thus observed:-- "A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporary injunction filed by t he appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the Application for temporary injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void."
' The suit was restored and remanded back for trial on merits. Needless to state that following are the opening words of two provisions relating to ex parte proceedings and dismissal of the suit for non-prosecution: -- ' Order IX, Rule 6 ' Where the plaintiff appears and defendant does not appear when suit is called on for hearing.
' Order IX, Rule 8 ' Where the defendant appears and plaintiff does not appear when suit is called on for hearing..
'I, therefore, do find that since the learned lower Court was not possessed of jurisdiction to proceed against the petitioner ex parte on 10-3-1994, the ex part decree emanating from said void ex parte proceedings is itself wholly void and without lawful authority and liable to be set aside.
7. The said second contention of the learned counsel also carries weight. Mr. Justice Karam Elahi Chauhan (as his lordship then was), in the case of Habib Ismail Bajwa. v. Kh. Ghulam Mohy-ud-Din (PLD 1970 Lahore 428) thus observed after recapitulating the case-law from the superior Courts in the sub-continent "a defendant by making default in appearance does not become a dead person for the purposes of the case and that he can join and participate in the proceedings onward from the stage at which the default took place."
8. Upon an examination of the available records I am satisfied that the petitioner had put in appearance in a matter of days after the said default in appearance and was continuously present before the learned trial Court. I may further note here that on 22-2-1995 when ex parte decree itself was passed, the case was being adjourned in waiting for orders of the learned District Judge who had requisitioned the file. By all norms it was the duty of the learned trial Court to have issued notice to the petitioner, when he received back the file. However, not only the review was dismissed for non-prosecution but the ex parte decree was passed after recording further evidence of respondent No, 1 .1 cannot restrain myself from observing that the entire proceedings in this case smack of mala fide inherent therein. Learned Courts below dealing with this matter do seem to have been bent upon decreeing the suit ex parte and to maintain said decree.
9. Having examined the entire record and in view of the fact apparent on the face of record that the ex parte proceedings, resulting in ex parte decree are wholly without jurisdiction, I feel no hesitation in holding that the learned Courts below have acted without lawful authority while passing impugned orders. The civil revision is accordingly allowed. All the impugned orders are set aside and ex parte proceedings are quashed. Learned trial Court is directed to requisition file of the case and to commence proceedings from stage they were after passing said orders in the stay application. The parties to appear before the learned Senior Civil Judge, Jhelum, on 29-7-2003. The costs throughout shall be borne by respondent No,l.
' A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Jhelum.