Zahid Jamil vs Mst: Saeeda Bano etc

2010 M L D 1010

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ZAHID JAMIL---Appellant

Versus

Mst. SAEEDA BANO and another---Respondents

R.F.A. No. 85 of 2009, decided on 19th April, 2010.

Civil Procedure Code (V of 1908)---

---O. VII, R.2 , O. V & O.IX, R.13---Suit for recovery---Trial Court passed ex parte decree against defendant and dismissed the application for setting aside ex parte decree---Defendant contended that notices were not served on him in accordance with provisions of O. V, C.P.C.- Validity---Provisions of O. V, C. P. C. were not complied with for service of defendant--- Decisions on merit were cherished goals of law and technicalities thwarting dispensation of justice needed to be discouraged to promote natural justice so that no one was condemned unheard---Ex parte judgment and decree against the defendant and dismissal of his application for setting aside ex parte decree were not in accordance with law---Case should have been decided on merits---Ex parte decree was set aside and case was remanded to Trial Court with direction to decide the case within four months and consider the presence of defendant as a party in whose absence the court would not be able to pass a valid order.

Mohd Siddique Haider Qureshi for Appellant.

Ghulam Jan Niazi for Respondents.

Date of hearing: 19th April, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Through the instant regular first appeal, the impugned herein by the defendant/appellant is judgment/order, dated 18-2-2009 of learned Civil Judge-VII, Kohat whereby application of the appellant for setting aside ex part decree was dismissed. Hence the present appeal.

2.Learned counsel for the petitioner submitted that the appellant was not served in accordance with the provisions of Order V, C.P.C., so the ex part decree passed against him is against natural justice and nullity in the eye of law. He further submitted that on getting knowledge of the same, his application for setting aside of the above said decree was also not dealt with in accordance with law and the same was dismissed in a cursory and slipshod manner by the learned Civil Judge without providing him the chance of proof of his contentions raised in the application.

3.As on the other hand, the learned counsel for the respondent/ decree-holder submitted that the appellant was well aware of the decree passed against him and he intentionally did not turn up. He further submitted that his application is time-barred as per Article 164 of the Limitation Act, he was required to file application within thirty days of the passing of the decree against him.

4.The submissions of the learned counsel for the parties were heard and record of the case gone through carefully.

5.Record of the case reveals that the provisions of Order V of C.P.C. were not complied with in letter and spirit for the service of appellant and on the basis of a publication in the local newspaper "Al-Akhbar" dated 5-9-2005, he was placed ex parte and later on 28-4-2007 an ex parte decree was passed against the present appellant.

6.As it is a case of recovery of Rs.10,50,000 wherein the appellant as per record was not provided a chance of hearing and no proper service of summons was effected in accordance with law. Learned counsel present on behalf of respondent/decree-holder also admitted the position on record.

7.As per considered view of the superior Courts, decisions on merits have become the cherished goal of law of the land and technicalities in the way of dispensation of justice have consistently been condemned to promote the natural justice between the parties so that no one should be condemned unheard. So, the judgment and decree, dated 28-4-2007 passed ex parte against the appellant and then the application of the appellant for setting aside ex parte decree appears to have not been dealt with in accordance with law, so in this view of the matter, it would be appropriate to decide the lis between the parties on merits in accordance with law. Hence, for the reasons recorded above, this appeal is allowed and the decree ex parte is hereby set aside on payment of costs of Rs.10,000.

8.The office is directed to send the record of the case to the trial Court forthwith and the parties should appear before the trial Court on 5-5-2010. The learned trial Court is further directed to decide the case on merits as early as possible but not later than four months positively.

Before parting with the judgment, the learned trial Court is also directed to consider the presence of defendant No.2 as a party whether in absence of whom Court would not be able to pass a valid decree.

A.R.K./139/P Appeal accepted.