Maintainability of Petition after notices are duly served

PLJ 2014 Lahore 821

Present: Muhammad Khalid Mehmood Khan, J.

SHABBIR HUSSAIN--Petitioner

versus

MUHAMMAD YOUNAS etc.--Respondents

C.R. No. 1457 of 2007, decided on 29.4.2014.

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

----O.IX, R. 13--Ex-parte decree--Application for setting aside ex-parte order was dismissed--Application for setting aside decree was filed instead of filing appeal against decree--No restraining order was passed by High Court in writ petition--Trial Court was justified to pass decree--Validity--An ex-parte order was passed against petitioner in a suit for specific performance of an agreement and ex-parte order was in field till today, petitioner assailed ex-parte order by way of writ petition during pendency of writ petition, trial Court passed a decree against petitioner--Held: Trial Court when was satisfied that defendant was duly served then application under Order IX, Rule 13, CPC was not maintainable and only remedy available to petitioner was to file appeal against ex-parte judgment and decree--Petition was dismissed. [P. 825] A & B

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

----O.IX, R. 13--Suit for possession through specific performance of an agreement--Ex-parte decree--Applicatioon for setting aside ex-parte order was dismissed--Instead of filing appeal against decree filed an application under Order IX, Rule 13, CPC for setting aside decree--Issue of ex-parte order and ex-parte decree were two independent causes of action--Contention--Application under Order IX, Rule 13 of CPC was independent cause of action and earlier litigation between parties was for setting aside ex-parte order which has no relevance with ex-parte decree--Validity--Ex-parte order and ex-parte decree are two independent causes of action, petitioner challenged an ex-parte order before competent forum and finally petitioner filed writ petition against the order but High Court had not suspended proceedings before trial Court--Petitioner even after passing an ex-parte order was entitled to participate in subsequent proceedings of suit but he had failed to do so--Factual position of the instant case was that in a suit petitioner was proceeded ex-parte, no doubt he challenged the order of ex-parte proceedings before High Court but had failed to procure restraining order--In absence of restraining order Civil Court recorded evidence and passed the decree.       [Pp. 825 & 826] C

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

----O.IX R. 13--Ex-parte order--Summons were not served or prevented by any sufficient cause to appear before Court--Validity--Petitioner filed application before trial Court for setting aside ex-parte order after coming to know pendency of suit, so trial Court was justified to dismiss application under Order IX Rule 13, CPC for setting aside ex-parte decree without recording evidence as order was available on file of the suit--Held: Application under Order IX, Rule 13, CPC is maintainable only where ex-parte decree is passed without service of defendant or defendant was prevented by any sufficient cause from appearing before the Court--Petition was dismissed.     [P. 826] D

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

----O.IX R. 13--Ex-parte order--Application for setting aside ex-parte order was dismissed--Although petitioner was not admitting that he had sold suit property but certified copy of sale-deed showed that petitioner had sold suit property through a registered sale-deed--Validity--Petitioner had sold property through registered sale-deed which showed that petitioner tried to defraud respondent and Court--Petitioner had not informed trial Court about fact that he was no more owner of property--Acts of petitioner establish that he intentionally avoided to appear before Court and intentionally tried to linger on proceedings only to avoid passing of decree against him--Petition was dismissed.   [P. 827] E

Syed Kaleem Ahmad Khurshid, Advocate for Petitioner.

Mr. Nisar Ahmad Baryar, Advocate for Respondents.

Ch. Ali Muhammad, Advocate for Respondent No. 1.

Date of hearing: 7.3.2014.

Order

Through this Civil Revision, the petitioner has assailed the order dated 16.5.2007 passed by learned civil Court on an application under Order IX Rule 13, CPC and an order dated 12.6.2007 passed by the learned appellate Court.

2. Briefly stated the facts of this case are that Respondent No. 1 filed a suit for possession through specific performance of an agreement to sell dated 09.5.1998 asserting that the parties agreed to sale and purchase of suit property against consideration of Rs.750,000/-, out of Rs.750,000/- a sum of Rs.592,000/- were paid to petitioner being earnest money.

3. The petitioner on 12.9.2000 was proceeded against ex-parte, his application for setting aside ex-parte order was dismissed on 04.10.2004. The petitioner's appeal against order dated 04.10.2004 too failed on 27.5.2005. The petitioner filed a Writ Petition No. 13070/2005 assailing the orders dated 04.10.2004 and 27.5.2005 of learned Civil Court and learned appellate Court, the writ petition was pending disposal when the learned trial Court decreed the suit on 28.9.2005 against the petitioner after recording evidence. This Court vide order dated 20.10.2005 disposed of the writ petition ordering that "if the application of the petitioner is allowed by the Court below, he can move an application for the revival of this petition" and disposed of the writ petition on 20.10.2005 with the above said remarks.

4. The petitioner instead of filing appeal against decree dated 20.10.2005 filed an application under Order IX Rule 13, CPC for setting aside decree dated 28.9.2005. The learned Civil Judge on 16.5.2007 dismissed the application under Order IX Rule 13, CPC. The petitioner's appeal against the order dated 16.5.2007 also failed on 12.6.2007. Hence, the present revision petition.

5. Learned counsel for petitioner submits that ex-order dated 16.5.2007 of learned civil Court is without lawful authority as the application was decided without framing issues and recording the evidence. The petitioner's writ petition was pending disposal before this Court for setting aside ex-parte order and as such the learned Civil Courtwrongly recorded the evidence and passed the impugned decree. The appellate Court on wrong assumption of facts and law passed order dated 12.6.2007. The learned appellate Court has wrongly assumed that the petitioner's writ petition was dismissed by this Court, in fact the petitioner's writ petition was disposed of with the permission that it can be revived at any time. Learned counsel submits that the petitioner's application for setting aside ex-parte decree has been passed without attending to the facts and law on the point and as such the same is liable to be set-aside. Learned counsel for petitioner has relied on Muhammad Iqbal Fasih v. National Bank of Pakistan,Lahore (PLD 1980 Lahore 38), Zulfiqar and others v. 1. Shahadat Khan, 2. Shahadat Khan and another (2008 SCJ 38), Registrar, Lahore High Court, Lahore v. Muhammad Naveed Hashmi and another (PLJ 2011 SC 49), Messrs Chanar Sugar Mills Ltd and others v. Collector (Sales Tax) and others (2006 SCMR 901), Fazal Bibiand others v. Abdul Haq and others (1991 CLC 291), Muhammad Hussain Afzal v. Ziaullah and others (PLD 2003 Supreme Court 625), Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq (1985 SCMR 1228), Saif Ullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926), Muhammad Azeem v. Muhammad Yousaf, etc (NLR 1985 CLJ 373), Syed Bahadar Ali Shah v. Syed Maryam Gillani and others (1991 CLC 775), Rana Muhammad Afzal Khan v. The State (1997 MLD 2145), M. Yasin Siddiqi etc. v. Ch. Muhammad Boota (1983 Law Notes (Lahore), 417), Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others (2002 CLC 1085), Sikandar Mahmood and 9 others v. Saeed Hassan and 17 others (PLD 1998 Lahore 118), Ahmed Khan v. Haji Muhammad Qasim and others (2002 SCMR 664), Attock Oil Co. Ltd v. Dr. Ghaith R. Pharaon and others (1996 SCMR 1803), Syed Iftikhar-ud-Din Haidar Gardezi and 9 others (1996 SCMR 669), Mst.Zaitoon Bibi v. Dilawar Muhammad through Legal Heirs (2004 SCMR 877) and Messrs Landhi Industrial Trading Estates Ltd, Karachi v. Government of West Pakistantthrough Excise and Taxation Officer, "N" Division Karachi (1970 SCMR 251).

6. Learned counsel for respondent supports the judgments of two Courts below and submits that respondent filed two suits against two brothers, i.e. the petitioner and his brother namely Bashir Ahmad, for specific performance of two agreements, the petitioner filed a suit for cancellation of agreement to sell, the respondent filed an application before the District Judge for consolidation of the suits and all the suits thus were consolidated. The petitioner failed to appear intentionally and the learned trial Court firstly passed ex-parte order which is in field till today and has not been set aside by any competent Court of law.

7. Learned counsel for respondent submits that as no restraining order was passed by this Court in Writ Petition No. 13070/2005 and as such the learned trial Court was justified to pass the decree as the petitioner was not attending the suit. The learned trial Court even in the absence of petitioner passed the decree after recording ex-parte evidence. Learned counsel has referred number of documents including certified copy of judgment of Hon'ble Supreme Court of Pakistan passed in Civil Appeal No. 381-L of 2012 in case titled Bashir Ahmad v. Muhammad Younas and others and submits that Bashir Ahmad is the real brother of petitioner and the petitioner and his brotherBashir Ahmad entered into agreement to sell through two separate agreements with the respondent for sale of their respective properties. Both the brothers adopted the same strategy and intentionally avoided to appear in Court and to defend the suit. Case of Bashir Ahmad was finally decided by the Hon'ble Supreme Court of Pakistan whereby the petitioner's brother Bashir Ahmad's appeal was dismissed and the fact of consolidation of four cases is available in the said judgment. Learned counsel for respondent further placed on record a certified copy of sale-deed showing that it was registered at No. 17901 on 07.11.2006 with the Sub-Registrar, the sale-deed shows that petitioner has sold the suit property to one Ch. Muhammad Azam s/o Ch. Bahadar Ali and it is specifically mentioned in the said sale-deed that the property is not subject matter of any litigation. Learned counsel submits that the purchaser Ch. Muhammad Azam has further sold the property through registered sale-deed No. 3482 registered on 15.3.2008 with the Sub-Registrar, Faisalabad in favour of Muhammad Yasin s/o Nazir Ahamd and mutation in his favour has also been attested. Learned counsel submits that after the sale of property the petitioner become non owner and as such this petition is liable to be dismissed on this score alone. Learned counsel for respondent has relied on Col. (Retd.) Mansoor Akbar v. Fazal-e-Rab Pirzada and others (2012 SCMR 540), Zafar and 2 others v. Ghulam Muhammad and 9 others (2005 CLC 525)

8. Heard. Record perused.

9. It is an admitted fact that an ex-parte order was passed against the petitioner in a suit for specific performance of an agreement and the said ex-parte order is in field till today, the petitioner assailed ex-parte order by way of Writ Petition No. 13070/2005, during the pendency of said writ petition the learned trial Court passed a decree against the petitioner and on 20.10.2005 this Court passed the following order in Writ Petition No. 13070/2005:

"It is stated that the main suit out of which the present petition has arisen, has been ex-parte decreed in favour of Respondent No. 3 and against the petitioner. The petitioner has moved an application for setting aside the ex-parte decree, which is yet pending.

2. Be that as it may, for the time being the present petition has become infructuous. However, if the application of the petitioner is allowed by the Court below, he can move an application for revival of this petition. Disposed of as such".

10. The petitioner's application under Order IX Rule 13, CPC was dismissed by the learned trial Court holding that petitioner's application for setting aside ex-parte order was dismissed on 04.10.2004 and appeal there against was also dismissed on 27.5.2005, inspite of these two orders the petitioner was having an opportunity to participate in the proceedings in main suit but he failed to participate in the subsequent proceedings. It is also held by the learned trial Court that High Court has also dismissed as withdrawn the petitioner's writ petition for setting aside ex-parte order dated 13.9.2005 keeping in view of the above facts. The learned trial Court come to the conclusion that the learned trial Court when was satisfied that the defendant/petitioner was duly served then application under Order IX Rule 13, CPC was not maintainable and the only remedy available to petitioner was to file appeal against an ex-parte judgment and decree dated 28.9.2005.

11. The argument of learned counsel for petitioner is that the application under Order IX Rule 13, CPC was on independent cause of action and the earlier litigation between the parties was for setting aside ex-parte order which has no relevance with the ex-parte decree. It is true that  ex-parte  order  and  ex-parte  decree are two independent causes of action, the petitioner challenged an ex-parte order before the competent forum and finally the petitioner filed writ petition against the order dated 04.10.2004 and 27.5.2005 but this Court has not suspended the proceedings before learned trial Court. The petitioner even after passing an ex-parte order, was entitled to participate in subsequent proceedings of suit but he failed to do so. The factual position of the case in hand is that in a suit petitioner was proceeded ex-parte, no doubt he challenged the order of ex-parte proceedings before the High Court but failed to procure the restraining order. In the absence of restraining order the learned Civil Courtrecorded the evidence and passed the decree. In these circumstances it has to be seen, whether application under Order IX Rule 13, CPC was maintainable or the petitioner was to file an appeal.

12. Order IX Rule 13, CPC is read as under:--

"13. Setting aside decree ex parte against defendant.--(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

13. The perusal of Order IX Rule 13, CPC shows that the petitioner has to satisfy the Court that summons were not served on him or he was prevented by any sufficient cause to appear before the Court when the suit was called on for hearing. In this case, the facts are different, the petitioner filed application before the learned trial Court for setting aside ex-parte order after coming to know the pendency of suit, so the learned trial Court was justified to dismiss the application under Order IX Rule 13, CPC for setting aside ex-parte decree without recording the evidence as order dated 04.10.2004 and 27.5.2005 was available on the file of the suit. The application under Order IX Rule 13 is maintainable only where the ex-parte decree is passed without the service of defendant or defendant was prevented by any sufficient cause from appearing before the Court.

14. There is another aspect of case, although the petitioner is not admitting that he has sold the suit property but the certified copy of sale-deed submitted by learned counsel for respondent before this Court, shows that the petitioner has sold the suit property through a registered sale-deed to one Ch. Muhammad Azam on 07.11.2006, this mean after selling the suit property the petitioner ceased to exist to be the owner of suit   property.   The   decree   in   favour  of  respondent  was  passed  on 28.9.2005 and the petitioner sold the property through registered sale-deed on 07.11.2006, which shows that petitioner tried to defraud the respondent and Court both. Further, he has not informed the learned trial Court about the fact that he is no more the owner of property. The above acts of petitioner establish that he intentionally avoided to appear before the Court and intentionally tried to linger on the proceedings only to avoid the passing of decree against him. The above said facts and law conclude that impugned judgment and decree and orders did not suffer any legal infirmity or illegality.

15. In view of the above, the revision thus fails and is dismissed.

(R.A.)  Revision dismissed