Altaf Hussain Shah VS Khursheed Ahmed etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1342 of 2019 Altaf Hussain Shah and others Versus Khurshid Ahmed and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 03.11.2021 Raja M. Abdul Wase, Advocate for the petitioners, Qazi Rafi-ud-Din Babar, Advocate for respondent No.1.

Through the instant writ petition, the petitioners impugn the order dated 04.03.2019 passed by the Court of the learned Additional District Judge, Islamabad whereby their appeal against the order dated 11.09.2018 passed by the Court of the learned Civil Judge, Islamabad, was dismissed. Vide the said order dated 11.09.2018, the learned Civil Court had dismissed the petitioners’ application for the setting aside of order dated 22.07.2017 whereby they were proceeded against ex-parte.

2.Learned counsel for the petitioners submitted that the petitioners are the real contesting defendants No.1-A to 1-D in the suit; that the suit property belonged to the petitioners; that respondents No.1 instituted a collusive suit on the basis of sale agreement dated 22.03.2004 executed with respondent No.2; that a forged power of attorney purportedly issued by the petitioners’ predecessor, Sabir Hussain Shah, was used to execute the said sale agreement; that the said Sabir Hussain Shah was alive when the suit was instituted on 19.07.2005; that Sabir Hussain Shah was not impleaded as party to the suit; that the petitioners were impleaded in the suit subsequent to the death of Sabir Hussain Shah; that vide order dated 03.04.2017, the learned trial Court directed

respondent No.2 / defendant No.1 to produce his evidence first; that no direction was ever issued to the petitioners for production of evidence; that respondent No.2 never produced the evidence as directed by the learned trial Court; that the suit was transferred on the administrative side by the learned District Judge and immediately thereafter the learned transferee Court recorded a warning, in absence of the petitioners, for production of evidence by the defendants’ side and then proceeded to pass the order for ex-parte proceedings; that date on which the petitioners were proceeded against ex-parte was fixed for respondent No.2’s evidence; that the petitioners’ absence from the Court on the said date was not willful and they had no intention to delay the proceedings in any manner; that the petitioners’ application for setting aside the ex-parte proceedings was not barred by limitation; that no limitation period is provided for filing of an application for setting aside an order for initiation of ex-parte proceedings against a defendant; that due to intervening summer vacations and Eid holidays the said application was filed with a slight delay; that the learned Courts below did not consider the record and the law on the subject; and that the law favours decision of cases on merits instead of technicalities. In making his submissions, learned counsel for the petitioners placed reliance on the judgment in the case of Major Muhammad Nouman Vs. Usman Habib (PLD 2019 Islamabad 255). Learned counsel for the petitioners prayed for the writ petition to be allowed in terms of the relief sought therein.

3.On the other hand, the learned counsel for respondent No.1/plaintiff opposed the petition. He submitted that the petition is not maintainable as

prior to the filing of the instant petition, the petitioners had already sold their rights in the suit property to a third person; that the subsequent purchaser has not been impleaded as a party in the petition therefore, it suffers from misjoinder and non-joinder of necessary party; that the petitioners have been moving frivolous applications to delay the proceedings in the suit; that the petitioners’ predecessor-in-interest sold the suit property to respondent No.1 through his attorney i.e., respondent No.2; that after the death of the petitioners’ predecessor-in-interest power of the attorney stood revoked therefore, the petitioners being his heirs were impleaded as defendants No.1-A to 1-D in the suit; that learned trial Court before proceeding ex-parte against the petitioners gave several opportunities for production of their evidence and for their default also recorded a warning while imposing costs of Rs.1,000/-; that the concurrent orders passed by learned Courts below are strictly in accordance with the available record and law on the subject; and that the requirements for interference in writ jurisdiction are not fulfilled in the present case. In making his submissions, learned counsel for respondent No.1 placed reliance on the judgments reported as 2020 SCMR 260 and 2015 PLC 45. Learned counsel for respondent No.1 prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.The record shows that respondent No.1 instituted a suit for specific performance on 19.07.2005 initially only against respondent No.2. In the said suit, it was inter alia pleaded by respondent No.1 that he had entered into a sale

agreement dated 22.03.2004 with respondent No.2 in relation to land measuring 6 kanals 1 marla in khasra No.2791/2335 situated at Revenue Estate Mohra Noor, Islamabad. It was also pleaded in the said suit that respondent No.2 executed the sale agreement dated 22.03.2004 as a general attorney of Sabir Hussain Shah i.e., the predecessor-in- interest of the petitioners. The petitioners were impleaded as parties during the pendency of the suit and they submitted their written statement. On 29.06.2009, respondent No.2’s attorney got recorded his consenting statement that he had no objection if the suit is decreed as prayed for. On the same date issues were framed. By 03.02.2011, respondent No.1 and his two witnesses got recorded their evidence. On 24.06.2014, the petitioners filed an application for re-cross examination of plaintiff / respondent No.1, which was dismissed vide order dated order dated 12.11.2014. Thereafter on 19.11.2014, respondent No.2/defendant No.1 moved an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (“C.P.C.”) for the rejection of the plaint. In the said application, respondent No.2 inter alia averred that he is ready and willing to perform the agreement dated 22.03.2004 by paying double the sale consideration according to terms of the said agreement. The said application was dismissed vide order dated 16.02.2017 passed by the learned trial Court. Thereafter, the case was at the stage of defendants’ evidence and on 28.02.2017, the learned trial Court granted last and final opportunity for recording of the defendants’ evidence. However, on 06.03.2017, the petitioners moved an application for framing of an additional issue. For the next four dates of hearing, the proceedings in the suit remained pending awaiting

arguments on the said application. On 03.04.2017, the learned Civil Court took up the case thrice, but the petitioners’ did not appear to prosecute the application for framing an additional issue, hence the said application was dismissed. However, vide the said order dated 03.04.2017, learned trial Court issued a specific direction that amongst the defendants, respondent No.2 / defendant No.1 is to produce his evidence first. Thereafter, the suit was adjourned in routine up to 20.05.2017. The suit was then transferred to another learned Civil Court apparently on account of administrative reasons. After the transfer, none of the defendants appeared due to which vide order dated 05.07.2017, they were given penal notice of default under Order XVII, Rule 3 C.P.C. and costs of Rs.1,000/- were imposed. The case was adjourned to 22.07.2017 but again the defendants i.e., the petitioners and respondent No.2, did not appear before the learned Civil Court, consequently, ex- parte proceedings were initiated against the petitioners / defendants. On the next date of hearing i.e., 20.09.2017, the petitioners moved an application for setting aside ex-parte proceedings which was contested by respondent No.2 i.e., plaintiff. Eventually, vide order dated 11.09.2018, the petitioners’ application for setting aside ex- parte proceedings was dismissed primarily on the grounds that they failed to produce evidence despite a warning recorded by the learned Court and also due to having filed the application beyond the period of limitation. The petitioners filed appeal against the said order which was dismissed vide impugned order dated 04.03.2019.

6.Now, this is a case in which the petitioners’ stance is at variance with that of their co-defendant i.e., respondent No.2. The plaintiff / respondent

No.1 claims to have purchased the land from respondent No.2 i.e., the attorney of the petitioners’ predecessor-in-interest, and execution of the said power of attorney is contested by the petitioners. The order dated 03.04.2017 shows that the learned trial Court had specifically directed respondent No.2 / defendant No.1 to produce their evidence. Although the said respondent No.2 had got recorded his consenting statement on 29.06.2009, yet the learned Civil Court passed the direction for production of evidence by respondent No.2 apparently because of divergent averments contained in respondent No. 2’s application under Order VII, Rule 11 C.P.C. which was filed on 19.11.2014. In the said application, respondent No.2 made a qualified admission to have executed the sale agreement as attorney of Sabir Hussain Shah but claimed that the agreement could not be performed due to respondent No.1 / plaintiff’s omission, who had instead instituted the suit. He averred that during the pendency of the said suit, the principal of respondent No.2 died due to which the power of attorney in his favour stand revoked. Respondent No.2 had also averred that he was willing to pay double the sale consideration he had received. The suit was subsequently adjourned in routine for the said purpose and respondent No.2 never produced his evidence. It also appears on the record that the suit was transferred on 20.05.2017 and record does not show that a post- transfer notice was issued to the petitioners who were absent since the suit was taken up by the learned transferee Court. On the basis of the above, I have reached upon the conclusion that no specific direction was ever issued to the petitioners for production of their evidence which was necessary in the context of order dated 03.04.2017

whereby respondent No.2 / defendant No.1 was directed to lead his evidence first. In absence of such a direction penal provisions could not have been invoked.

7.In addition to the above, the learned trial Court had dismissed the petitioners’ application for setting aside the ex-parte proceedings on the ground of limitation. In the Limitation Act, 1908, no period for limitation is provided for a defendant to move an application for setting-aside the order for initiation of ex-parte proceedings, therefore, under the residuary Article 181 of the Limitation Act, 1908 such an application can be moved within the period of three years. Law to the said effect has been laid down by this Court in the case of Major Muhammad Nouman Vs. Usman Habib (Supra), wherein it was held as follows:- “15. Although limitation period has been prescribed for setting-aside an ex-parte decree, no limitation period has been prescribed for setting-aside an order whereby a defendant/respondent is proceeded against ex- parte. The limitation period for filing such an application is three years under Article 181 of the Schedule to the Limitation Act, 1908. However, it is well settled that a defendant/respondent who is proceeded against ex-parte is not debarred from appearing and participating in the proceedings at a subsequent stage. Reference in this regard may be made to the judgments in the cases of Hashim Khan v. National Bank of Pakistan (1992 SCMR 707) and Police Department v. Javid Israr (1992 SCMR

8.Vide order dated 08.04.2019 passed by this Court in the present petition, further proceedings in the suit had been stayed. As observed above the impugned concurrent orders suffer from material error in law entailing a jurisdictional error, therefore, the same are not sustainable under the law.

9.In view of the above, the instant petition is allowed, and the impugned order whereby the

petitioners were proceeded against ex-parte is set- aside. Consequently, the petitioners’ application for setting aside the ex-parte proceedings shall be deemed to be pending and the same shall be decided by the learned Civil Court within a period of one month from the date of the receipt of this order.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*