' This judgment shall deal with and decide Regular Second Appeal No,37 of 2002 titled "Muhammad Aslam Khan v. Salah-udDin" and Regular Second Appeal No,39 of 2002 titled "Saim Muhammad Khan v. Muhammad Abdullah" which arise from the same judgments and decrees as well as orders and are between the same parties.
2. The impugned judgment and decree dated 18-11-2000 has been passed by the learned Civil Judge, Lahore, after dismissing appellant's applications respectively moved by appellants for setting aside the ex parte proceedings taken against them as defendants on 11-11-2000 and after closing the evidence of defendants under rule 3 of Order '17, C.P.C. First appeal filed by the appellants was also dismissed by learned Additional District Judge, Lahore vide his judgment and decree dated 29-5-2002. The above said judgments and decrees have been impugned through second appeal filed by the appellants (defendants in the suit).
3. The admitted case of the parties is that the impugned judgments and decrees have been passed by the learned subordinate Courts on the basis of order dated 18-11-2000 passed by learned Civil Judge, Lahore, wherein he proceeded to:-
(i) Dismiss the applications of the appellants for setting aside ex parte proceedings dated 11-11- 2000 on the basis that appellants have failed to pay a cost of Rs.2,000 imposed upon them in order dated 25-7-1989 by Additional District Judge, remanding the case for granting last opportunity of evidence to the appellants and that the applications for setting aside the ex parte orders were mala fide; and
(ii) appellants had failed to produce their evidence in accordance with the remand order dated 25-7-1989 of the learned Appellate Court.
4. Respondents were notified to appear at pre-admission stage. Respondents Nos.1 and 2 are represented through Mr. Ghulam Nabi Awan, Advocate and respondents, listed at Serial No,3 represented through Mr. Jehangir A. Jhoja, Advocate. Respondents Nos.4 and 5 had throughout remained ex parte and have opted not to appear in the present proceedings as well, wherefore, they are proceeded against ex parte.
5. During the pendency of Regular Second Appeal No,37 of 2002, another appeal Regular Second Appeal No,39 of 2002 was filed by respondents, listed at Serial No,3 in R.S.A. No,37 of 2002. Both the appeals being identical and against the. Same judgments and decrees, are being decided together. It is also recorded that the said appeals, on the request of learned counsel for the parties, are being heard and decided as Paka/admitted case.
6. At the very outset, the learned counsel for the respondents was confronted with order dated 23- 11-1989 recorded by the learned Civil Judge, Lahore observing that the costs of Rs.2,000 had been paid by the appellants under protest. These costs were paid obviously and admittedly in compliance with order dated 25-7-1989 passed by learned Additional District Judge, Lahore, remanding the case back to the learned trial Court for recording of evidence. In presence of this order, the learned counsel for the respondents conceded that order dated 18-11-2000 passed by learned Civil Judge, Lahore, dismissing application for setting aside the ex parte proceedings filed by the appellants has been passed under either a misapprehension of the proceedings or misconception of the order itself. Learned counsel for the parties also did not rule out the possibility of exclusion from consideration by the learned Civil Judge of the proceedings recorded by his predecessoRs. The tenor of the impugned order, dated 18-11-2000 is clear and concise that the said order, dismissing applications for setting aside ex parte proceedings dated 18-11-2000, was passed by the learned Civil Judge for non-payment of costs of Rs.2,000 as imposed under order dated 25- 7-1989 passed by the learned Additional District Judge. This observation is patently incorrect and wrong and has resulted from non-reading of the orders on judicial file of the learned Civil Judge.
This error is so patent on record that no further comments are required. In view of this position, the learned counsel for the parties fairly and candidly requested for setting aside the impugned order dated 18-11-2000 and resultantly judgments and decrees dated 18-11-2000 and 29-5-2000 respectively passed by learned Civil Judge and learned Additional District Judge,
7. The request made by the learned counsel for the parties is obviously reasonable and further that this Court has no option but to set aside the impugned judgments and decrees alongwith order dated 18-11-2000. The case is remanded back to the learned Civil Judge, Lahore for decision of the application for setting aside the ex parte order dated 11-11-2000 filed by the appellants. These applications shall be deemed to be pending before the learned Civil Judge, who shall proceed to decide the same in accordance with law after providing due opportunity of hearing to all the parties concerned.
8. The parties -are directed to appear before the learned Civil Judge on 7-9-2002 without fail and the learned Civil Judge shall decide the said applications in accordance with law within a period of two months therefrom. These appeals are accepted in above terms.