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Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.38404 of 2016

Muhammad Hussain and 2 others Versus Mst. Zarina Akbar and 6 others

Sr. No. of order/ proceeding

Date of order/ Proceeding

Order with signatures of Judge, and that of Parties or counsel, where necessary

08.02.2017 Rana

Muhammad

Anwar,

Advocate

for

the

petitioners

Mr. Aftab

Hussain

Bhatti,

Advocate

for

the

respondents No.1 to 4 Wasim Mumtaz Malik, Addl. Advocate General

Tersely, the respondents No.1 to 3 instituted a suit

for declaration against the present petitioners (defendants No.3

to 5) and respondents No.4 & 5 (defendant No.2 and 1,

respectively) regarding the suit property. The defendant

No.2/respondent No.4 submitted written statement and

conceded the plaint. The petitioners moved an application under

Order I, Rule 10 of the C.P.C. for deleting the Province of

Punjab being unnecessary party. Allegedly, the matter was

settled in Punchayat that the plaintiffs would withdraw their

suit and defendant No.2 would give them their share out of

remaining six acres, but the plaintiffs continued their

proceedings and ultimately on 04.11.2015, ex parte proceedings

were ordered against the petitioners/defendants No.3 to 5 and

resultantly, on 08.01.2016, ex parte judgment and decree was

passed in favour of the plaintiffs/ respondents No.1 to 3. The

petitioners filed an application for setting aside the order dated

04.11.2015 with regard to initiation of ex parte proceedings and

ex parte judgment & decree dated 08.01.2016, which was

contested and the same was dismissed vide impugned order

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dated 13.04.2016, which necessitated in filing of the civil revision before the learned lower Revisional Court, but it was dismissed vide impugned order dated 18.11.2016.

2. The main thrust of the learned counsel for the

petitioners is upon the fact that on the fateful date i.e. 04.11.2015, the suit was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C. and at the most, due to absence of the petitioners and their counsel, the learned trial Court ought to have decided the fate of the said application instead of initiating ex parte proceedings against the present petitioners, as such, the learned Court committed illegality as well as failed to consider law on the subject, which resulted in miscarriage of justice. Relies on Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949) and Hashim Khan v. National Bank of Pakistan (1992 SCMR 707). Submits that when the initial order dated 04.11.2015 is illegal, void ab

initio, without jurisdiction and without lawful authority, the ex parte judgment and decree dated 08.01.2016 based on the said void order is nullity in the eye of law. Relies on Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another (2006 CLC 92-Quetta). Adds that the learned Courts below have passed the impugned orders and ex parte judgment and decree clearly in violation of the principles laid down by the Higher Courts. Further adds that law leans in adjudication of cases on merits rather on technicalities. Asserts that the learned Courts below have committed jurisdictional error, which needs to be rectified in exercise of constitutional jurisdiction. As such, by allowing the writ petition in hand, the impugned orders and ex parte judgment and decree may be set aside and the matter may be remanded to the learned trial Court for decision afresh in accordance with law. It has further been prayed that application filed under Order I, Rule 10 of the C.P.C. may also be accepted.

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Relies

Corporation (1984 CLC 2778-Karachi), Assistant Controller of Imports and Exports and 2 others v. Muhammad Iqbal Bhirviya (1989 CLC 398-Karachi), Qazi Laeeq v. Najeebur Rehman and others (2012 MLD 50-Peshawar), Muhammad Anwar v. Muhammad Masood Akhtar and others (1993 MLD 1889-Lahore) and Syed Qaim Ali Shah through Attorney v. Election Commission of Pakistan through Secretary and 3 others (PLD 2015 Sindh 408).

3. Naysaying the above submissions, the learned

counsel for the respondents No.1 to 4, by favouring the impugned orders, ex parte judgment and decree, has prayed for dismissal of the writ petition in hand. Relies on Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609), Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631) and Secretary

Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan (2008 SCMR 287).

4. Heard.

5. In the present case, the provisions of Article 181 of

the Limitation Act, 1908 attracts instead of Article 164 of the Act, as the petitioners joined the proceedings, submitted their written statement and when the suit was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C., due to their absence, they were proceeded against ex parte and later on ex parte judgment and decree was passed against them; as such, the period for filing application for setting aside of ex parte judgment and decree is three years under the above said Article of the Act. Hence, the learned Courts below have failed to appreciate law on the subject properly; the said observations recorded by the learned Courts below being beyond mandate of law and not sustainable are reversed, set aside; it is held that the

on

Messrs

Eastern

Steels

v.

National

Shipping

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application for setting aside of ex parte judgment and decree was well within time.

6. Admittedly, when ex parte proceedings were

initiated against the petitioners, the date was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C., therefore, at the most, the learned trial Court ought to have proceeded and decided the said application in absence of the petitioners, rather to initiate ex parte proceedings against them in the suit; therefore, such order and subsequent ex parte judgment and decree cannot be said to be legal one, rather it is without jurisdiction and void. Illumination in this regard can be sought from reported case Hashim Khan v. National Bank of Pakistan (1992 SCMR 707) and Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949), which speaks:

It seems difficult to support the order dated 27-3- 1986 of the trial Court and the orders of the Additional District Judge and the High Court. 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 day appointed for hearing arguments on the application for temporary injunction filed by the 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 dismissed the suit as well. Quite clearly its order in this regard was without jurisdiction and void.When the order is patently illegal and has been passed in violation of law, this Court has powers to rectify the same while exercising its constitutional jurisdiction; in this regard reliance can be placed on Muhammad Anwar and others v. Mst. Ilyas

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Begum and others (PLD 2013 Supreme Court 255), wherein it has been held:

‘Article 4 (ibid) mandates that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamounts to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its constitutional jurisdiction can ratify the illegality and violation of law, and undo the harm caused by the order of such (revisional)Court………… ’

7. So far as the case law relied upon by the learned

counsel for the respondents is concerned, with utmost respect,

the same is on different ratio, therefore, the same does not enhance the cause of the respondents. Even otherwise, each and every case has its peculiar facts and circumstances and the Courts have to evaluate and adjudge the same with an independent mind so as to administer safer justice.

8. Compendium of the above discussion is that as the

initial order dated 04.11.2015 was void and against the mandatory provisions of law, the subsequent superstructure could not stand on the same and this Court has ample power to rectify such jurisdictional error. As such, the instant writ petition is allowed, the impugned orders dated 04.11.2015, 13.04.2016 passed by the learned trial Court and ex parte judgment and decree dated 08.01.2016 and order dated 18.11.2016 passed by the learned Revisional Court, being based

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on wrong assumption of law are declared illegal and void as well as without jurisdiction and are set aside. Case is remanded to the learned trial Court, where the suit shall be deemed to be pending alongwith application filed under Order I, Rule 10 of the C.P.C., with a direction to decide the same afresh on merits in accordance with law. The adversaries are directed to appear before the learned trial Court on 11.03.2017. No order as to the costs.

M.A.Hassan

(Shahid Bilal Hassan)

Judge

Approved for reporting.

(Shahid Bilal Hassan)

Judge