Muhammad Saleem Khan Vs Abdul Hafeez etc

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No.380-4/2022

Muhammad Saleem Khan (Petitioner/s)

VS

Abdul Hafeez and others

(Respondent/s)

Present, Gul Shereen Khan Jadoon, Advocate, for petitioners.

Chaudhry Attique Ahmad, Advocate, for the respondents.

Date of hearing: 27.05.2025

JUDGMENT

AURANGZEB, J.- Through the instant writ petition, the petitioner/defendant has challenged the order/judgment dated 1 1.1 1 .2021 passed by learned Additional District Judge, Abbottabad at Havelian, whereby, revision petition filed by present petitioner was dismissed and thereby maintained the order/judgment of learned trial Court dated 26.11.2019, who vide the same had dismissed the application of the present petitioner for setting aside the ex-parte judgment and decree dated 14.11.2005.

z. Precisely the facts leading to the filing of instant writ petition are that the predecessor of

respondents namely Abdul Hafeez filed a suit for possession through pre-emption, detail of which is fully mentioned in the heading of the plaint, which suit was decreed ex-parte on 14.11.2005. Thereafter, the petitioner/defendant filed an application for setting aside the aforesaid ex-parte judgement and decree, which application was dismissed by the learned trial Court on 26.11.2019. Feeling himself aggrieved, the petitioner/defendant preferred revision petition, however, the same was also dismissed by Additional District Judge, Abbottabad at Havelian vide the impugned order/judgment dated I 1.1 1 .2}2lwhrch order/judgment has now been challenged by the petitioner through the instant writ petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and record perused with their able assistance.

!. The record would show that on 05.06.2003, a civil suit No. 98/1 was instituted by the respondent namely, Abdul }{afrz, against the present petitioner and the said suit was decreed ex-parte on 14.\1.2005. The petitioner/defendant being aggrieved of the said ex-parte decree filed an application for setting aside the ex-parte decree. The proceedings were carried out and vide order dated 10.03.2010 the

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said application was dismissed by the then learned Civil Judge-V, Abbottabad and held that the ex-parte decree was granted subject to depositing of remaining pre-emption amount but the same has not been deposited and thus there is no decree against the petitioner remaining in field and there is no need for setting aside. The petitioner/defendant approached the court of learned District Judge, and filed civil miscellaneous appeal No. 23114 on 12.04.2010. The appeal was accepted on 15.12.2010 and the case was remanded with the directions to the trial court to address the fact regarding depositing of pre-emption amount and to decide the application in accordance with law. Unfortunately, the remand order was dispatched to the court of Mr. Ahmed Iftikhar, the then learned Civil Judge-V, Abbottabad and the court of Miss. Rabia Abbasi, the then learned Civil Judge-IV, Abbottabad. Both the courts started proceedings and vide order dated 13.04.2011 the learned Civil Judge- IV, Miss Rabia Abbasi instead of dismissing the application for setting aside ex-parte decree recorded the order of dismissal of suit while there was no suit pending as an application for setting aside ex-parte decree was pending. As the proceedings were simultaneously being carried out before the learned

Civil Judge-V, Abbottabad also and on 24.09.2012 an order was recorded according to which the application pending before him was adjoumed sine die. The petitioner once again approached the court to of learned District Judge, Abbottabad where a petition under section 151 of the CPC was preferred with the request to pass an appropriate order in view of the proceedings conducted in pursuance of remand order dated 15.12.2010 by different courts. The learned District Judge, Abbottabad by invoking his revisional jurisdiction, set aside the order dated 14.4.2011 and as the decree was passed by the then learned Civil Judge- IV, the application was entrusted to the court of Civil Judge-IV, Abbottabad. Similarly, the order dated 24.09.2012 according to which, application for setting aside ex-parte decree was adjourned sine die was also set aside. The court of Civil Judge IV Abbottabad, was directed to resume the proceedings in the case and to dispose of the application for setting aside ex-parte decree at the earliest. The parties were directed to appear before the learned CJ-IV Abbottabad on 06.11 .2012. Once, again the file was received to the learned CJ-IV Mr. Shehzad Ali Khan where the proceedings were started from 13.11 .2012. As none of the parties were present, he put both the parties on

notice and vide order No. 3 dated 27.1I.2012, the said application for setting aside ex-parte decree was once again dismissed for default. The petitioner submitted application for restoration of the said application for setting aside the ex-parte decree and thus the learned appellate Court has rightly observed that the application for restoration of another application for setting aside ex-parte decree was required to have been registered in register No. 6 which was registered in register No. 1. The record further shows that proceedings were carried out in the said application and order dated 02.11.2013 was recorded according to which the application for restoration of another application for setting aside ex-parte was accepted and another mistake was committed by learned Civil Judge IV, Abbottabad who was required to have consigned the said application and to reopen the \ application for setting aside ex-parte decree which was remanded vide order dated 15.12.2010, however, the case was fixed for further proceedings and vide order dated 07 .03.2014 on the basis of order/endorsement No. 738-62-514 dated 28.02.2014 of leamed District Judge, Abbottabad the case was transferred to the Court of Civil Judge-II, Abbottabad and the parties were directed to appear before the said Court and

thereafter the proceedings were conducting by Civil Judge-II, Abbottabad and ultimately an order was passed on 26.09.2014 according to which the application filed by the petitioner for restoration of his application was decided which was dismissed on 27.11.2012. Vide order/judgment dated 03.10.2019, the said application No. 616 for setting aside ex-parte decree dated 14.12.2006 was restored and reopened to be decided as per directions learned Additional District Judge-V, Abbottabad vide order dated 12.04.2020.

Upon receiving the record on 10.10.2019, it was entrusted to learned Civil Judge-II, Havelian. The proceedings were carried out and finally vide order dated 26.11.2019 the application for setting aside ex- parte decree was dismissed. The petitioner/defendant being aggrieved preferred revision petition which was also dismissed by learned Additional District Judge, Abbottab ad at Havelian.

5.The main argument advanced by the

leamed counsel for the petitioner/defendant is centered around the assertion that the petitioner/defendant was never properly served with summons due to the fact that an incorrect address was mentioned in the plaint, however, a careful examination of the judicial record reveals that the suit in question was instituted based on

a registered sale deed bearing No. 144, exhrbited as Ex PW-3/1, in which the petitioner/defendant is clearly identified as a resident of Havelian. The very deed through which the petitioner/defendant acquired the suit property reflects his address as " Muhammad Saleem, son of Muhammad Ayub Khan, caste Pathan, resident of Havelian District Abbottabad." This same address was reproduced in the plaint. It is important to note that had the petitioner/defendant ensured that his correct and updated address was recorded in the deed, this entire issue of non-service and confusion regarding his whereabouts would likely not have arlsen. Initially, the learned trial Court issued summons for the petitioner/defendant's appearance using the address mentioned in the plaint, however, service could not be effected at that stage.

Subsequently, the trial Court issued directions for fresh summons to be served, including a specific order requiring that the house of the petitioner/defendant be pointed out to facilitate service. Despite these directions, ffid the issuance of fresh summons along with a registered AD envelope, service was again unsuccessful. The process had to be repeated due to the failure in effecting proper service. In the meantime, a more detailed address of the

petitioner/defendant was submitted in Court, stating:

" Muhammad Saleem, son of Muhammad Ayub Khan, caste Pathan, resident of Ordnance Depot Road, Mohallah Ayub Khan, neor Ayub Public School, Haveltan, Tehsil Havelian, District Abbottabad."

When process was issued on this updated and more specific address, reports indicate that on at least two occasions, the petitioner/defendant reportedly refused to accept the summons. Furtherrnore, when the process seryer attempted to serve the summons in person, it was reported that the residents at the location refused to accept the same.

0.The record further reveals that persistent efforts were made to ensure service. Summons dated 12.11.2003 were issued once again. On this occasion, it was reported that the petitioner/defendant was served through his real brother, which constitutes valid substituted service under procedural law. On yet another attempt, the summons were handed over at the residence of the petitioner/defendant on 27.02.2003.

These circumstances clearly reflect that diligent and repeated efforts were made by the Court to serve the petitioner/defendant. The consistent refusal or evasion on the part of the petitioner/defendant to accept service or appear before the Court demonstrates a deliberate

attempt to avoid the judicial proceedings. In the case of "Mukhtiar Hussain Mst. Shafia Bibt' reported as 2023 SCMR 159 the Hon'ble Apex Court has held as under;

----O. IX, R. l3---Ex-parte decree and judgment--- Application for setting aside ex-parte decree and judgment, dismissal of---At the stage of recording the evidence, the petitioner-defendant stopped appearing, and thus, the Trial Court proceeded ex- parte against him, and subsequently, by its judgment issued a decree in favour of the respondent-plaintiff---Petitioner applied under Order IX, Rule Ii, C.P.C. to set aside the ex-parte decree,taking the stance that there was an attempt to compromise between the parties and he was told by the respondent that the suit had been withdrawn, and under this impression, he did not appear in the proceedings---Held, that petitioner did not attach any compromise deed with his application (under Order IX, Rule 13, C.P.C.) nor did he mention the details of the terms and conditions of the alleged compromise in his application nor the date, time and name of the persons before whom it was made-- -Secondly, he also did not mention in his application that he had told his counsel about the alleged compromise and instructed him not to appear before the Court, and thirdly, he had not disclosed any reason as to why he did not take any step to confirm the fact of withdrawal of suit from his counsel---All such facts showed that the petitioner had deliberately chosen to refrain from joining the proceedings and displayed non- cooperation with the Court and, therefore, he had no right to ask its indulgence and seek setting aside of ex-parte decree possed against him---As such, his application deserved q summqry dismissal as it was deficient in necessary material facts, and was vogue in all respects, and appeared to be an attempt to cover up his misdeeds and negligence---Petitioner could not be allowed to take advantage of his own wrong or negligence---Petition for leave to appeal was dismissed and leave was refused.

Z. In light of these facts, it is evident that the petitioner/defendant was duly served in accordance with the law but willfully avoided appearance, therefore, the leamed appellate Court has rightly and

lawfully passed the impugned order, and no interference is warranted in its findings g. During the course of arguments, leamed counsel for petitioner was also confronted that since he is seeking the issuance the writ of certiorari, therefore, he has to establish that whether the impugned orders of all the fora below are the result of illegal or unlawful or improper exercise of jurisdiction vested to them, however, learned counsel representing the petitioners could not point out any improper or unreasonable or illegal exercise of jurisdiction, therefore, the desired writ could not be issued in their favour. In a case of !&ruW" reported as 2020 SCMR 2155, the

Hon'ble Apex Court has held that "the High Courts must not exercise their constitutional jurisdictton in order to interfere with the discretion exercised by lower Courts unless the same suffers fro* jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the

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findings of lower Courts merely because it reached a dffirent conclusion as to the controversy than the latter". Similarly, in a case "Chairman NAB vh Muhammqd (Jsman & others" reported as PLD 2018 Supreme Court 28 the Hon'ble Apex Court has held that "the powers of judicial reviau vested in High Court under Article 199 of the Constitution is no doubt a great weopon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine menner".

2 During the course of arguments, the

learned counsel for the petitioners laid considerable \ emphasis on the plea that the matter be remanded to the learned trial Court for a fresh decision. He contended that remanding the case would serve the ends of justice and allow for a fair adjudication of the matter on merits, however, this request, cannot be entertained in the peculiar circumstances of the case. It is an undisputed fact and both the learned counsel for the parties have confirmed this fact that both the

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original plaintiff/respondent and the petitioner/ defendant have since passed away. Additionally, a number of key witnesses who had testified or were expected to testiff in support of either party have also expired. In such a scenario, remanding the matter to the trial Court would be an exercise in futility, as the evidentiary structure upon which the case once stood has now entirely collapsed due to the passage of time and the demise of vital individuals connected to the case. The availability of evidence and living testimony is fundamental to the retrial of any civil suit, and in the present case, such a retrial would not only be impractical but would also fail to yield any meaningful or just result. Therefore, the request for remand is declined.

10.In view of the above, this petition being bereft of any merits is hereby dismissed in limine.

Announced

27.05.2025 L

P rl

JUDGE