Govt: of KP through Secretary Education & others Vs Gulrang Zada & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P No. 12-M/2017 Govt: of K.P.K through Secretary Education & others v/s Gulrang Zada & others Present: Mr. Rahim Ullah (Chitrali), Astt: A.G, for petitioners/applicants.

Mr. Iftikhar Ahmad (Senior), ASC, for respondent No. 1/plaintiff.

Date of hearing: 18.5.2026

JUDGMENT

SALAH-UD-DIN, J.- Through the instant writ petition, the petitioners/provincial government have assailed the judgments and decrees of the learned Courts below dated 12.8.2016 passed by the learned Civil Judge/I.Q Shangla at Alpuri, order/judgment dated 02.11.2016, rendered by the learned Additional District Judge/I.Z.Q Shangla at Alpuri and an ex-parte judgment and decree dated 15.6.2010 of the Court of learned Civil Judge/I.Q- II, Alpuri, District Shangla.

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

3.A bare perusal of the record would reveal that initially the respondent/plaintiff, namely Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Gulrang Zada, instituted a civil suit bearing No.

74/1 of 2010 against the present petitioners/ defendants in respect of land measuring 53 kanals, bearing Khasra No. 907, situated within the local limits of Mouza Bilkani, Tehsil Alpuri. It was averred in the plaint that the suit property was originally owned by his predecessor-in-interest, namely Khanzada, by virtue of Tamasuk Nos. 56 to 97 dated 18.06.1969. It was further alleged that the petitioners/defendants, being government officials, had no lawful authority to construct a Government Middle School over the suit property. After institution of the suit, the representative of the petitioners/defendants appeared before the learned Civil Court on 30.04.2010 and sought time for filing of the written statement. Thereafter, however, the defendants failed to appear before the learned trial Court on successive dates of hearing and, consequently, were proceeded against ex-parte.

Eventually, an ex-parte judgment and decree dated 15.06.2010 was passed in favour of the respondent/ plaintiff. Upon acquiring knowledge of the aforesaid ex-parte judgment and decree, the petitioners/defendants moved an application U/S 151, C.P.C. for setting aside the same. The said Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

application was duly contested by the respondent/ plaintiff through filing of his replication. The stance taken by the applicants/defendants was that the suit property, bearing Khasra No. 907, constituted Abadi Deh and, therefore, could not have been recorded in the revenue record in the name of the Provincial Government, notwithstanding the fact that the Government Primary School, Bilkanai, had already been constructed thereon in the year 1985.

They further asserted that another suit, bearing No.

22/1 of 2010, titled “Gulrang Zada v. Provincial Government & others”, was already pending adjudication against the petitioners/defendants and that, owing to a bona-fide misunderstanding, they had failed to appear before the learned trial Court.

The aforesaid application was, however, dismissed by the learned Civil Court vide order/judgment dated 16.09.2015, primarily on the ground of maintainability. The learned Court below was of the view that since the petitioners/defendants had alleged fraud and misrepresentation in relation to the ex-parte judgment and decree dated 15.06.2010, the appropriate remedy available to them was to invoke the provisions of section 12(2), C.P.C., Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

rather than seeking such relief under the inherent jurisdiction conferred by section 151, C.P.C.

4.The present petitioners/applicants thereafter filed an application U/S 12(2), C.P.C.

seeking setting aside of the ex-parte judgment and decree dated 15.06.2010 passed in Suit No. 74/1 of 2010, principally on the ground that the same had been procured through sheer use of fraud and misrepresentation. The said application was vehemently contested by the respondent/defendant by filing a written reply, wherein various legal as well as factual objections were raised. Upon consideration of the matter, the learned trial Court dismissed the said application vide order/judgment dated 12.08.2016. Feeling aggrieved, the petitioners preferred Civil Revision No. 12/5 of 2016 before the learned revisional Court, which too was dismissed vide the second impugned order/ judgment dated 02.11.2016 of the Court of learned Additional District Judge/I.Z.Q Shangla at Alpuri.

Hence, the instant writ petition.

5.First and foremost, it is pertinent to clarify that the alleged Tamasuk bearing Nos. 56 to 97 dated 18.06.1969 constitutes the common foundation of two independent suits, i.e. Suit No. Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

74/1 of 2010 and Suit No. 22/1 of 2010, instituted by the respondent/plaintiff against the same set of government functionaries, albeit in respect of different set of properties. In the latter suit, bearing No. 22/1 of 2010, the aforesaid Tamasuk was disbelieved by the learned Courts below, right from the learned trial Court up to the august Supreme Court of Pakistan. No doubt, in Suit No. 74/1 of 2010, an ex-parte judgment and decree was passed in favour of the respondent/plaintiff; however, since the very edifice of both the aforesaid independent suits rests upon one and the same Tamasuk, the findings recorded by the competent Courts with regard to the genuineness and evidentiary value of the said document cannot be brushed aside as being wholly irrelevant. Rather, such findings assume considerable significance and have a direct bearing upon the valuable rights and interests of the petitioners/defendants, particularly with regard to the legality of the construction of the middle school over the disputed property.

6.It is also borne out from the record that, during the pendency of Suit No. 74/1 of 2010, serious doubt persists as to whether proper and lawful service was ever effected upon defendant Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

No.1, i.e. the Provincial Government. No doubt, the remaining defendants, being officials of the Education Department, appeared through their representative and contested the suit; however, such appearance, by itself, could not dispense with the requirement of due service upon the Provincial Government in accordance with the procedure prescribed by law. It is pertinent to observe that, where the Government is a party to the proceedings, the provisions of Order XXVII, C.P.C., particularly Rule 5-A thereof, assume significance. The Court is required to afford the Government reasonable opportunity to place its defence on record and, in terms of the statutory scheme, an ex-parte adjudication cannot be resorted to in disregard of the period and safeguards prescribed by law. In the present case, the ex-parte judgment and decree were admittedly passed on 15.06.2010, whereas the suit itself had been instituted only a short time earlier, and the record does not demonstrate compliance with the mandatory procedural safeguards applicable to a suit against the Government. It is further pertinent to note that the petitioners/defendants were admittedly government functionaries; therefore, the Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

manner in which summons were required to be served upon them could not be treated as a mere procedural formality, particularly when the consequence of their alleged non-appearance, was resulted into passing of an ex-parte decree, affecting their valuable rights in immovable property. Order V, Rule 27, C.P.C. specifically contemplates a mode of service upon a civil public officer through the head of the office in which such officer is employed, while Rule 29 prescribes the manner in which such summons are to be served and returned. Thus, before proceeding against the petitioners/defendants ex-parte, it was incumbent upon the learned trial Court to satisfy itself, from the record, that the summons had been duly and lawfully served and that the statutory safeguards governing proceedings against the Government had been observed. Any ex-parte decree passed without due compliance with such requirements would be legally vulnerable, particularly where the defendants were thereby deprived of an effective opportunity to contest the claim relating to valuable immovable property.

7.It is also borne out from the record, and is evident from the impugned ex-parte Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

judgment and decree dated 15.06.2010, that the learned Government Pleader appeared before the learned trial Court and stated that he had neither been contacted by the concerned Education Department nor informed about the pendency of the suit. He further observed that the defendants appeared to have lost interest in the matter and, accordingly, expressed no objection to the grant of decree in favour of the respondent/plaintiff.

However, what is conspicuously absent from the entire record is any material demonstrating that the learned Government Pleader had ever been furnished with a letter of authority, sanction or specific instructions by the concerned department authorizing him to represent the defendants in the suit, much less to make any concession or statement having the effect of foregoing their valuable rights in the suit property. There is also nothing on record to establish that the concerned defendants had authorized the learned Government Pleader to make a statement of no objection to the grant of decree against them. In these circumstances, the statement of the learned Government Pleader, particularly his expression of no objection to the grant of decree, could not, Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

without more, be treated as an unequivocal and duly authorized admission or concession on behalf of the defendants. The learned trial Court was required to examine whether such statement was made pursuant to lawful authority and instructions of the concerned department before placing reliance thereon, especially when the decree sought to be passed involved valuable rights in immovable property belonging to or claimed by the Government. The absence of any such authorization on the record, therefore, renders the basis upon which the defendants were effectively left undefended and the ex-parte decree came to be passed highly questionable. Reference can be made to the judgment of this Court rendered in case titled “Government of KPK & others v/s Muhammad Anwar Khan” reported as 2014 YLR 485. In the refereed judgment it was expounded by his Lordship “that the government had not sanctioned defence of the suit through proper notification.

Government pleader was not authorized to submit written statement on behalf of defendants.

8.It is well-settled that although framing of issues and recording of evidence in every application U/S 12(2), C.P.C. is not mandatory, Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

however, in cases where serious disputed questions of fact are involved, the Court is bound to adopt such a course. Reliance in this regard may be placed on the case of “Anwar Ali and another v.

Abdul Karim and others” (PLD 2023 Peshawar 181), wherein it was held that where fraud or misrepresentation is alleged, the matter should be decided after framing specific issues and recording evidence. In the said judgment, this Court has held that:-

“Though, it is not sine qua non for the Court to frame issues and record evidence in each and every application filed u/s 12 (2) C.P.C, however, it is not the rule of thumb and the circumstances depend upon the factual aspect. Where the case requires recording of evidence, the decision thereof must be based upon the evidence by providing an opportunity to the parties to prove their respective contentions.”

Similarly in the case of “Ghulam Ullah Vs. Ghulam Hassan and others” (CLC 2022 404, Lahore), it was observed that:- “Application elaborated that counsel who agreed to appoint referee for obtaining his decision regarding dispute pending before Court and consequential decree on basis of the same decision of referee was without their consent. Statement of such counsel was without any lawful authority. For determination of such fraud/ misrepresentation framing of issue and recording of evidence were essential/ obligatory for providing opportunity to the parties to prove the factual dispute. Revision petition was accepted and case was remanded for re-adjudication after framing issues and recording evidence.”

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Likewise, in the case titled “Pakistan Television Foundation Ltd. through Managing Director and another Vs. Abdul Sattar” (2020 M L D 1985, Islamabad) it was noted that where the alleged fraud and misrepresentation of facts need an inquiry then framing of issues and recording of evidence is necessary. Relevant portion of the said judgment reads as under:-

“If material alleged and produced by the applicant in support of allegations of fraud or misrepresentation was serious and specific then evidence ought to be recorded for just adjudication of the application under S.12(2) C.P.C. Application under S.12(2), C.P.C.. was required to be decided after framing of issues and after providing a chance to respective parties to lead evidence. Such principle, however, was not to be followed in each and every case and was dependent on nature of assertions made in an application under S.12(2) C.P.C. along with material annexed thereto. Where allegation of fraud and misrepresentation was alleged and duly supported by evidence, in such eventuality, it was incumbent upon court to record evidence for disposal of such application under S.12(2), C.P.C.”

A perusal of the impugned

order/judgment passed by the learned trial Court reveals that neither any issue for determination was framed nor the questions relating to fraud, misrepresentation, concealment of facts, or lack of jurisdiction were properly addressed while making reference to any material/evidence on the record, rather in a cursory and slipshod manner, the learned Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Court below has decided the petitioners’ application U/S 12(2), C.P.C., without adverting to the material controversies raised therein. It is a settled principle of law that every judicial order must be a speaking one, reflecting due application of judicial mind to all the points involved in the case. Reliance in this regard is placed on the case of “Muzafar Ali Zafar and 05 others v. The Collector Land Acquisition, Mirpur and 16 others” (2020 YLR 45), wherein it was held that a non-speaking order is not sustainable in the eyes of law. The case law relied upon by the learned counsel for the respondents, being distinguishable from the facts and circumstance, cannot be applied here in this case.

9.Even otherwise, it is a well-settled principle of law that Courts should lean in favour of adjudication of disputes on their merits rather than shutting the doors of justice on account of technicalities or procedural lapses. Procedural rules are intended to advance the cause of justice and not to thwart it. Where an ex-parte decree has been passed without affording a meaningful opportunity of hearing to the affected party, particularly in a matter involving valuable rights in immovable Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

property, the Court must adopt an approach that advances substantial justice and enables the controversy to be determined on its merits.

10.In view of the foregoing discussion and the exposition of law, the instant writ petition is allowed. Consequently, the impugned orders/ judgments dated 12.08.2016 and 02.11.2016 passed by the learned Courts below, as well as the ex-parte judgment and decree dated 15.06.2010, are hereby set aside. The matter is remitted to the learned trial Court for fresh adjudication on merits, after affording the parties a fair and meaningful opportunity to lead their respective evidence and thereafter deciding the application preferred U/S 12

(2)C.P.C, in accordance with law.

Announced Dt: 08.6.2026 -Sd-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din