RAB NAWAZ vs ADDITIONAL DISTRICT JUDGE Ss — 2023 MLD 511 LAHORE-HIGH-COURT-LAHORE

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RAB NAWAZ VS ADDITIONAL DISTRICT JUDGE Ss. 12(2), 151, O. IX, Rr. 9, 13, O. X, Rr. 17, 19, 20 & O. XLIII, R. 1(d)---Constitution of Pakistan, Art. 10A---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), S. 3---Constitutional petition---Suit for declaration by ancestors of the petitioners was decreed by Civil Court ex-parte against respondent and implemented in the revenue record by attestation of mutations and further partly transferred the land in the name of subsequent purchasers---Respondent filed civil suit against the petitioners after 25 years of the said decree/mutation challenging the said ex-parte decree/mutation; claimed ownership of the said land, which suit was dismissed for non-deposit of process fee by respondent for service of petitioners---Respondent filed application for setting aside ex-parte decree on the ground of lack of knowledge, non-service of summons, violation of O. X of Civil Procedure Code, 1908, which application was dismissed by Civil Court---Respondent filed a revision petition which was accepted by District Court setting aside the ex-parte decree of 1987 on 21.02.2019---Petitioners contended that order was appealable but respondent did not file appeal knowingly as it was time barred and filed revision petition which was not maintainable; that necessary parties were not joined in the application under O. IX, R. 13 of Civil Procedure Code, 1908, although they were made party in the civil suit filed by respondent; that application was filed after 25 years of passing the decree without mentioning any justification---Held, that relevant documents i.e. copy of proceedings of the Court/order sheet with present petition were based on the basic proceedings of the trial Court but the petitioners had not annexed the relevant documents---Such documents were necessary to be examined to see the nature of the original suit, how it proceeded and specially to see the point of limitation---Even if the respondent was proceeded against ex-parte the Court was bound to see about the maintainability of the suit and that whether the claim of the plaintiff was proved---Petitioners were claiming that they had the possession of the property under the sale agreement but no revenue record was tendered in the Court regarding the same---Procedure required for proceeding ex-parte against any person had not been carefully adopted by the Trial Court---High Court observed that provisions of O. X of Civil Procedure Code, 1908 were not carefully examined by the Trial Court---Trial Court had to apply the proper law and to see whether summons issued by the Court had been properly, correctly and legally effected upon the person to whom those had been sent---Respondent was seriously prejudiced by the act of the court and court should have considered said fact while dealing with the application filed under O. IX, R. 13 of Civil Procedure Code, 1908---Matters should be decided on merits and no one should be condemned unheard---Technicalities should not be hurdle in the way of justice---No example or the precedents existed that a revision petition could be converted into appeal and appeal could be converted into revision---Limitation period was not applicable to the illegal order of the Court because when initial order was void and against the mandatory provision of law, then subsequent superstructure could not stand---Constitutional petition was dismissed accordingly.

RAB NAWAZ vs ADDITIONAL DISTRICT JUDGE Ss — 2023 MLD 511 LAHORE-HIGH-COURT-LAHORE

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