Setting aside of Ex-Parte Decree

2014 C L C 410

 [High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Ch. MUHAMMAD YOUNAS ARVI and 3 others----Petitioners

Versus

MUSHTAQ AHMED and 6 others----Respondents

Revision Petition No.46 of 2008, decided on 9th April, 2013.

 (a) Civil Procedure Code (V of 1908)---

----O. IX, R. 13 & O. I, R. 10---Ex parte decree, setting aside of---Non-joinder of necessary party---Scope---Application for setting aside ex parte decree was filed which was accepted---Validity---Evidence had not been legally appreciated---Petitioners were in possession of suit land but they were not arrayed as party in the original suit and consent decree was passed which was not binding upon them---Sale-deed executed on the basis of consent decree was not legal and was non-existent---Judgment and decree were passed in legal fashion and in accordance with law---Application was liable to be dismissed on the point of limitation, for want of proof and for not impleading the petitioners as party and the alienation of Shamlat Deh land by way of compromise decree---Negligent attitude of the respondents in pursuing their case was neither a case for condonation of delay nor a case of sufficient cause---Revision was accepted and impugned order was set aside. 

            2008 SCR 207; 2008 SCR 223; 2000 MLD 1305 and PLD 1970 SC 196   rel.

 (b) Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex parte decree---Remedies available against---Remedies available against ex parte decree were: an application under O.IX, R.13, C.P.C.; review application under S.114(f) read with O.XLVII, R.1, C.P.C.; appeal under S.96, C.P.C.; application under S.12, C.P.C. and application for re-hearing the matter on the ground of violation of principles of natural justice and inherent powers of court might also be attracted or writ petition might lie. 

            Muhammad Younas Arvi in person and for Petitioners.

            Muhammad Reaz Tabassum for Respondents Nos.1 and 2.

ORDER

            SARDAR ABDUL HAMEED KHAN, J.--- This revision petition has been filed against the order of Senior Civil Judge Mirpur dated 30-6-2008, whereby the respondents Nos.1 and 2 moved an application for setting aside the ex parte decree dated 16-4-1998 and the said Court allowed the same.

            The precise facts giving rise to the instant revision petition are that the present respondents Nos.1 and 2 have filed an application for setting aside the ex parte decree titled "Zubair Akhtar and others v. Muhammad Bostan and others" dated 16-4-1998 in the Court of Senior Civil Judge Mirpur regarding land measuring 19 kanals, 11 marlas comprising Khasra No.626/1 old, and Khasra No.1 new (Shamlat Deh) situated at Mauza Kaskalyal Tehsil and District Mirpur. It is alleged in the application that the respondents Nos.1 and 2 have filed a declaratory suit on 31-3-1997 against the pro forma respondents Nos.3 to 5 for setting aside the "Consent Decree" dated 27-12-1990 passed by Additional Sub-Judge, Mirpur. It is also alleged that the applicants are owners in possession of the suit-land purchased through sale-deed dated 3-8-1991. The applicants stated that the suit was filed against respondents Nos.3 to 5, while it was in the knowledge of respondents Nos.1 and 2, that the entries have been made it the Revenue Record and Mutation No.65 has also been attested. The respondents Nos.1 and 2 deliberately did not array the applicants as a party. The applicants prayed that the ex parte decree dated 16-4-1998 may kindly be set aside.

            After hearing the parties, the learned Senior Civil Judge Mirpur vide its judgment dated 30-6-2008, set aside the ex parte decree dated 16-4-1998, hence this revision petition.

            Mr. Muhammad Younas Arvi, the learned counsel for petitioners argued that for setting aside the ex parte decree application was not maintainab1e rather a suit could lie, because the respondents were party in the previous litigation. It was further pointed out by the learned counsel that a suit titled Muhammad Bostan v. Zubair Ahmed for setting aside the ex parte decree was filed by pro forma respondent No.5 Muhammad Bostan which had been dismissed for want of prosecution on 10-10-2002 by Civil Judge Mirpur. It is agitated that the petitioners are in possession and a copy of Jamabandi 2005-06 is on the record, according to which the petitioners Nos.1, 3 and 4 are in possession of the suit land including some other piece of land. He further argued that the case of respondent was not falling under Article 181 of Limitation Act. Ch. Muhammad Younis Arvi, the learned counsel for petitioners vehemently argued that the consent decree is not binding on others, who were not party before the trial Court. Moreover, the respondents were properly served and without sufficient cause, decree could not be set aside, thus, the impugned order of learned Senor Civil Judge is bad in law. He referred the following case-law and prayed for setting aside the impugned order:---

            (1) PLD 1992 AJK 29; (2) 2008 SCR 207; (3) 2000 MLD 1305 and (4) Unreported case titled Bostan v. Ghulam Hussain decided by apex Court on 10-12-1998.

            Mr. Muhammad Reaz Tabassum, the learned Advocate for the respondents Nos.1 and 2, while controverting the arguments advanced by learned counsel for petitioners, argued and defended the impugned order on all four corners and agitated that the petitioner No. 1 as counsel of petitioner Zubair Akhtar (respondent No.3 in the instant petition) filed the suit and pleaded the case and now he cannot plead otherwise. He further argued that Mr. Mushtaq Ahmed respondent was necessary party by virtue of sale deed Exhibit "PE" and lastly prayed for the dismissal of revision petition being without any legal substance.

            After hearing the learned counsel for the parties, going through the case-law referred and after thorough perusal of record of the case, it reveals, that in beginning of this episode, one Muhammad Bostan (now respondent No. 5) brought a suit against Abdul Rasheed and Munawar Hussain (now respondents Nos.6 and 7) in the Court of Additional Sub-Judge Mirpur on 17-12-1990 and just after 10 days on 27-12-1990 a consent decree was passed on the admission of defendants (respondents Nos.6 and 7) regarding land measuring 20 Kanals, 11 marlas Field No.1 Village Kaskalyal. Later on respondents Nos.3 and 4 herein filed a suit on 16-2-1998 for setting aside the above captioned consent decree, which was set aside on 16-4-1998 by Sub-Judge Mirpur.

            That after about 4 years M. Bostan Khan (respondent No.5 herein) brought a suit on 9-2-2002 for setting aside the decree and order dated  16-4-1998,  however,  this  suit  was  dismissed  in  default  on  10-10-2002 and lastly an application for setting aside the decree and order dated 16-4-1998 was filed by real respondents Nos.1 and 2 titled Mushtaq and others v. Zubair Akhtar and others against pro forma-respondents Nos.3 to 7 on 19-12-2002 in the Court of Senior Civil Judge Mirpur which was decided after about six years on 30-6-2008. It is pertinent to note that during the pendency of the said application, the present petitioner i.e. Ch. Muhammad Younis Arvi and three others filed an application for impleading them in the line of defendants/respondents as they are the land owners of Village Kaskalyal and the subject land is Shamlat Deh, which is in their possession. The same was allowed by the trial Court vide an interim order dated 27-3-2006, whereupon the present petitioners filed their detailed objections and contested that the application of the respondents merits rejection for non-availability of cause of action. Sale-deed on the basis of consent decree of Shamlat land is ill-gotten gain which is nullity in the eyes of law, moreover, on the point of limitation, non-impleading the necessary party, and on ground of non-possession of respondents etc. It is worth-mentioning that the respondents Nos.1 to 5 were proceeded ex parte in the trial Court and only contesting respondents were the present petitioners and pro forma-respondents Nos.6 and 7. That after completion of summoning process and objections etc. the learned Senior Civil Judge On 19-6-2006 framed the following 7 issues:---

            The onus to prove the Issues Nos.4 and 5 was on the respondents (petitioners herein) and other all issues were to be proved by the petitioners (respondents herein). After recording the evidence of parties the learned Civil Judge accepted the application and set aside the ex parte decree and order dated 16-4-1998.

            In the instant revision petition, Mr. Reaz Tabassum is representing real respondents Nos.1 and 2, whereas vide interim order dated 11-5-2009, the learned counsel for petitioners stated that the pro forma respondent need not to be summoned. Moreover, vide order dated 11-3-2011, my learned brother Mr. Justice Tabassum Aftab Alvi in the light of statements of the learned counsel of parties at bar formulated a point, "whether ex parte decree can be passed in favour of the petitioners without impleading contesting respondents as a party in the line of respondents or not? The respondents produced Mushtaq Ahmed respondent No.1, Muhammad Bostan and Muhammad Ayyub Process Server as witnesses and exhibited the summon Exh.P.G. and report of process server as Exh.P.G./2.

            While examining the evidence of these above said witnesses, it transpired that while passing resolution on Issue No.1, the portion of statements of these witnesses as stated in examination-in-chief, was reproduced in impugned judgment of the learned trial court, but no mention of deposition made during the cross-examination, wherefrom, it reveals that the evidence has not been legally appreciated.

            On the other hand, while resolving the Issues Nos.4 and 5, the documentary evidence in shape of periodical record of revenue for the year 2005-06, Exh.D.A., court statement of witness Patwari Farman have not been read and appreciated by the trial Court and the statement of one of the petitioner Muhammad Younis Arvi, has been misread, whereas it is evident that 3 out of 4 petitioners were in possession of suit land and they were not arrayed as party in the original suit, wherein a consent decree was passed, which is the root cause of the dispute and prolonged litigation spreading over two decades. Petitioners were necessary party and without impleading the person in possession as party, consent decree between the other parties was not binding upon the petitioners, hence the resolution passed by the learned Senior Civil Judge on Issues Nos.4 and 5 is not sustainable. Thus, Issues Nos.4 and 5 are decided in favour of petitioners and against the respondents.

            It  also  transpired  from   the   record   of   the   case   that   on   27-12-1990. After passing of the consent decree a sale-deed was executed against a sale consideration Rs.8,00,000/- (rupees eight lacs) after 8/9 months of the order dated 27-12-1990 and sale-deed of Shamlat which is not legal and specially when the decree is not in field, thus, the sale deed is non-existent.

            In view of above, the judgment and decree passed by the Additional Sub Judge Mirpur on 16-4-1998 was passed in lawful manner, whereby the ex parte decree dated 27-12-1990 regarding the land measuring 20 Kanals, 11 Marlas Khasra No.626/1-old and No.1-new, Khewet No.95/84, Khata No.271/203 situated in Village Kaskalyal Tehsil Mirpur and mutation attested on the basis of this decree were set-aside. Hence the impugned order dated 16-4-1998 passed by the trial Court was passed in legal fashion and in accordance with the law. The application for setting aside the above said judgment and decree filed by respondents Nos.1 and 2 titled Mushtaq Ahmed and Inayat Hussain v. Zubair Akhtar and others' merits dismissal on the point of limitation, for want of proof and for malafidely not impleading the petitioners in the line of respondents and the alienation of Shamlat Deh land by way of compromise decree/sale-deed etc.

            These above findings are fortified by (1) 2008 SCR 207, (2). 2008 SCR 223 and (3).2000 MLD 1305, the relevant portions of which are reproduced, which read as:---

2008 SCR 207.

            "Not only that, even otherwise the legal position time and again approved by this Court is that Shamlat Deh land cannot be alienated through affidavit, agreement-to-sell or through a compromise-decree nor can a declaration be made in respect of an owner for share in the Shamlat Deh by the civil Court. The proposition was settled, among others, in Civil Appeal No.791998 titled Muhammad Bostan v. Ghulam Hussain and 3 others wherein a division bench of this Court clearly held so. The facts which culminated into filing of that appeal were that a declaratory suit in respect of Shamlat Deh land was filed in the Court of Additional Sub-Judge Mirpur challenging the compromise-decree dated 12-5-1987.'

            The civil Courts are bound to dive deep into and be careful while deciding such like cases in which the parties by compromise, evasive denials and through unregistered deeds and documents attempt to get declaration of title or ownership, through a judgment or decree of the civil Court to the detriment of other owners or parties having a legal right or claim. Similarly the Courts should avoid to grant a declaration in respect of possession of Crown-land and Shamlat Deh without first determining the title of the owner to transfer and the exclusive possession.'

2008 SCR-223.

            `Although the gift-deed is a registered document, still the same cannot create a right unless Shamlat Deh land is partitioned by metes and bounds and a specific certificate by the Collector is not granted. Permission by Tehsildar or certificate by the Collector referred to, a photocopy of which is attached with the file of the trial Court, is fake on the ground that the file of the case was ablazed.

2000 MLD 1305.

            It is well-settled principle of law that when the basic order is illegal the structure based on it also falls to the ground. Therefore, when the allotment also had no sanctity in the eye of law. This principle equally applies to the subsequent transfer in favour of respondent-Ratasib'.

            It is further added that the remedies available against an ex parte decree are:---

O         An application under Order IX, rule 13.

O         A review application under section 114f read with Order XLVII, Rule 1.

O         An appeal under section 96.

O         A proceeding to set aside the decree on the ground that it was obtained by fraud etc. under section 12 of the Code. Previously a suit could be filed.

O         An application for re-hearing of the matter on the ground of violation of the principles of natural justice.

O         A revision may also lie

O         In appropriate cases the inherent powers of a court may also be attracted or a writ may lie.

            The above remedies are concurrent and initially not exclusive of each other. It is pertinent to mention that time spent in availing of one of remedy is not deductible for another remedy (as held in PLD 1970 SC 196). But the conduct of respondents in filing suit and application one after another and negligent attitude of the respondents in pursuing their case is neither a case for condonation of delay nor a case of sufficient cause by which they were prevented from appearing before the Court. While keeping in view, the provisions of Rule 13, Order IX, C.P.C., the impugned order merits  interference by his Court.

            In the light of above findings and after appreciating the evidence of the parties, which is in my estimation is sufficient evidence to decide the matter instead of remanding the case under Order XLI, Rule 25, C.P.C. The overall records/evidence of the case is suggestive of decision of the case under Order XLI, Rule 24 of the Code.

            The nub of the above discussion is that this petition succeeds, hence by accepting he revision petition of petitioners the impugned order dated 30-6-2008 passed by the learned Senior Civil Judge Mirpur is hereby set aside with no order as to costs.

AG/60/HC(AJ&K)                                                                              Petition accepted.