Application filed under Order I, Rule 10 of the C.P.C. and at the most, due to absence of the petitioners and their counsel, the learned trial Court ought to have decided the fate of the said application instead of initiating ex parte proceedings against the present petitioners,

2. The main thrust of the learned counsel for the petitioners is upon the fact that on the fateful date i.e. 04.11.2015, the suit was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C. and at the most, due to absence of the petitioners and their counsel, the learned trial Court ought to have decided the fate of the said application instead of initiating ex parte proceedings against the present petitioners, as such, the learned Court committed illegality as well as failed to consider law on the subject, which resulted in miscarriage of justice. Relies on Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949) and Hashim Khan v. National Bank of Pakistan (1992 SCMR 707). Submits that when the initial order dated 04.11.2015 is illegal, void ab initio, without jurisdiction and without lawful authority, the ex parte judgment and decree dated 08.01.2016 based on the said void order is nullity in the eye of law. Relies on Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another (2006 CLC 92-Quetta). Adds that the learned Courts below have passed the impugned orders and ex parte judgment and decree clearly in violation of the principles laid down by the Higher Courts. Further adds that law leans in adjudication of cases on merits rather on technicalities. Asserts that the learned Courts below have committed jurisdictional error, which needs to be rectified in exercise of constitutional jurisdiction. As such, by allowing the writ petition in hand, the impugned orders and ex parte judgment and decree may be set aside and the matter may be remanded to the learned trial Court for decision afresh in accordance with law. It has further been prayed that application filed under Order I, Rule 10 of the C.P.C. may also be accepted.Relies on Messrs Eastern Steels v. National Shipping Corporation (1984 CLC 2778-Karachi), Assistant Controller of Imports and Exports and 2 others v. Muhammad Iqbal Bhirviya (1989 CLC 398-Karachi), Qazi Laeeq v. Najeebur Rehman and others (2012 MLD 50-Peshawar), Muhammad Anwar v. Muhammad Masood Akhtar and others (1993 MLD 1889-Lahore) and Syed Qaim Ali Shah through Attorney v. Election Commission of Pakistan through Secretary and 3 others (PLD 2015 Sindh 408)

 Part of Judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
Writ Petition-Miscellanous-Civil Suit
38404-16

2017 LHC 536