PLJ 1991 Lahore 204
Present: MUHAMMAD MUNIR khan. J Dr. H.H. MIRZA-Petitioner
versus
Msl. WAHEEDA KHATOON-Respondent
Civil Revision No. 256 of 1990, accepted on 29.1.1991
Civil Procedure Code, 1908
(V of 1908)--
—-O.IX R.l3~Ex-parte decree-Setting aside of-Prayer
for--Rcjection of application-Challenge to-In his application for setting aside
ex-pane decree, petitioner had taken
grounds which did need factual investigation—Because of ex-partc order, he could not file objections on report of Local Commissioner, on basis whereof, final decree was passed-Held:
Trial court was obliged to afford
opportunity to petitioner to prove his case by producing evidence and disposal
of his petition summarily, was quite illegal—Petition accepted.
[P.205]A&B
Sh
Abdul Aziz and Mr. Rafiq Javed Butt, Advocates for Petitioner. Syed Iflikliar Ahmad, Advocate for Respondent. Date of hearing: 29.1.1991
judgment
On 7.9.1986 Mst. Waheeda Khatoon, respondent, filed
a suit for the partition of property against Dr. H.H. Mirza, petitioner, in the
Court of Senior Civil Judge, Lahore. The suit was resisted. Issues were framed.
The parties led their evidence. The trial Court passed preliminary decree.
Feeling aggrieved thereby, the defendant/petitioner filed appeal which was
dismissed by the learned Additional District Judge Lahore, on 13.5.1985, and the file was sent back to the
trial Court for further
proceedings. On the receipt of the file, the learned trial Court issued notices to the parties, their counsel
and to the Local Commissioner for 5.5.1985. Thereafter, Local Commissioner filed his report. On
account of the non-appearance
of the petitioner/defendant and his counsel, the trial Court passed an order for ex-pane proceedings on
24.4.1986 and ultimately granted ex-pane decree in favour of the respondent/plaintiff
and against the petitioner/defendant on 27.4.1986. On 7.9.1986, Dr.H.H. Mirza filed application
for setting aside the ex-patic decree
on the grounds that the notices issued to him after the return of the file from the Apppellate Court, were
not served; that his counsel had never appeared before the trial Court after the return of the
file to the trial Court; that his counsel had wrongly been marked present in
the order sheet and that he was not issued any notice with regard to the filing of the report of the
Local Commissioner. This
application was contested and the grounds for setting aside cx-pailc decree stating in the
application, were denied by respondent/ plaintiff. The trial Court
without framing issues and affording an opportunity to the petitioner/defendant
to substantiate the grounds taken in the application dismissed the same on
27.7.19S7. on the ground that the contentions of the petitioner were not tenable. The appeal
filed by the petitioner against this order was
dismissed by the learned Additional District Judge on 7.12.1987. Hence this revision.
The leared counsel
for the petitioner mainly submitted that the petitioner was not given an;,
opportunity to substantiate the grounds taken by him in the petition, for
ijtting aside the ex-pane decree.
The learned counsel
for the respondent uas of the
view that since the grounds taken in the petition were against the
order sheet in which the presence
of his counsel was marked, herefore, there was no need to frame issues
or give any opportunity to the petitioner to lead evidence in proof of grounds taken in
the petition.
I have considered
the matter carefully. I feel persuaded to agree with the learned counsel for
the petitioner. I find that in this application for setting aside the ex-paite
decree, the petitioner has taken grounds which did need the factual investigation.
He had challenged the authenticity of the order sheet. Because of the ex-parte order dated 20.4.1986
the petitioner could not file objections on the report of the Local Commissioner on basis whereof the final decree was
passed. I feel that in these
circumstances, the trial Court was obliged to afford opportunity to the petitioner to prove his case by producing
evidence and the disposal of his petition
summarily was quite illegal.
Pursuant to th; above
discussion, this revision application is allowed. The impugned orders passed
by the trial Court and by the Appellate Court are set aside, and the
case is sent back to the trial Court for
fresh decision of the application of the petitioner for setting aside the ex-parte
decree, in accordance with law. The parties shall bear their own costs.
(MBC) Petition accepted.
