O.IX, R.13--Suit was decreed ex parte without engaged any advocate, any service upon the applicants in the trial Court; that neither the applicants had ever engaged any advocate nor instructed to file any Vakalatnama nor any notice was served upon them through bailiff or substituted service;
2011 C L C 1045
[Karachi]
Before Muhammad Ali Mazhar, J
O.IX, R.13--Application for setting aside ex parte decree passed against defendants.
Contentions of the counsel of applicants/ defendants were that defendants were the owners of agricultural land, which was in their possession for the last 40 years; that suit was decreed ex parte without any service upon the applicants in the trial Court; that neither the applicants had ever engaged any advocate nor instructed to file any Vakalatnama nor any notice was served upon them through bailiff or substituted service; in their supporting affidavit defendants had specifically stated that they were totally unaware about the pendency of the suit and they only came to know the factum of suit when the alleged attorney of the plaintiffs disclosed that the suit-land had been mutated in their favour on the basis of decision obtained from the Civil Court; that trial Court had dismissed the application on the ground "that one Mr. J. Advocate caused his appearance for representing the defendants in the suit, therefore, the 'assertion of applicants/defendants that no notice was served upon them was incorrect"; that record showed a statement filed by Mr. J. Advocate in the trial Court in which he simply requested to the Court for adjournment enabling him to file objections to the injunction application and in the same statement he also undertook to file vakalatnama on behalf of defendants; that said Mr. J. Advocate had also intimated the trial Court that he remained absent for want of instructions from defendants and for such reasons the application under O.IX, R.13, C.P.C. of defendants was dismissed by the trial Court and that appellate Court also took the same view and rejected the plea of non-service of defendants and advised the applicants to file an application under S.12(2), C.P.C.---Validity---Held, trial Court, as well as the appellate court both had failed to give any findings or reasoning on the crucial point as to whether applicants were ever served on or not---Neither any vakalatnama was filed by Mr. J. Advocate nor any notice was issued by the trial Court to the applicants after taking the statement of said Advocate that he remained absent for want of instructions---Even the appellate Court while dismissing the appeal ignored to decide an essential issue as to whether Mr. J. Advocate filed any vakalatnama in the matter or not and if no vakalatnama was filed why notice was not issued to the applicants if they were not duly served through bailiff---Appellate Court, instead of deciding the appeal on its own merits, advised the applicant to file an application under S.12(2), C.P.C. which was not the right approach---High Court, in circumstances, accepted the revision of applicants and remanded the matter to trial Court to decide the suit on merits after allowing ample opportunity to defendants/applicants.
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