S. 12--Exparte decreed-- Application for setting aside of ex-parte decree-- Suit for specific performance--Compromise--Application was withdrawn--

 PLJ 2023 Lahore (Note) 169
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
WALI MUHAMMAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 6605 of 2023, decided on 18.9.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.IX R. 13--Specific Relief Act, (I of 1877), S. 12--Exparte decreed-- Application for setting aside of ex-parte decree-- Suit for specific performance--Compromise--Application was withdrawn--Another application was filed by Defendant No. 3--Writ of written reply was closed--Revision petition--Dismissed--No opportunity for reply of application was provided--Challenge to--Petitioner has assailed vires of orders of Courts below whereby his right to file written reply was closed concurrently--It would be appropriate to provide only one fair opportunity to petitioner to submit reply of application subject to payment of costs which shall be paid by petitioner to Defendant No. 3 in trial Court on next date of hearing, where-after trial Court shall fix a date, on which date petitioner shall submit his written reply--Before parting with this order, it is observed that this order has been passed in interest of justice and in order to avoid any further delay keeping in view principle that lis should be decided on merits without any loss of time--Petition allowed.                                                                     [Para 1, 4, 5] A, B & C

Ch. Muhammad Faisal Bashir, Advocate for Petitioner.

Date of hearing: 18.9.2023.

Order

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has assailed the vires of judgments/orders of Courts below whereby his right to file written reply was closed concurrently.

2. Facts in brevity are that petitioner instituted a quit for specific performance of an agreement to sell dated 13.04.1967 on 19.07.2014. Suit was contested by Defendant No. 1 (Province of the Punjab), whereas, Defendant No. 4. namely Jameela Bibi filed consenting written statement and Defendants Nos. 5 to 9 were proceeded against ex-parte. Learned Trial Court, after recording evidence of the parties, decreed the suit vide judgment and decree dated 22.06.2019. With regard to said judgment and decree Defendants No. 2 & 5 to 8 filed an application for setting aside ex-parte proceedings as well as ex-parte judgment and decree. During the pendency of the proceedings, a compromise affected between the parties and said application was dismissed, as withdrawn vide order dated 28.02.2023. Defendant No. 3 namely Bashiran Bibi also moved an application for setting inside ex-parte proceedings dated 18.06.2016 as well as ex-parte judgment and decree dated 22.06.2019. In response to notices, petitioner appeared but he failed to submit written reply of the said application, therefore, right of the petitioner to file reply was closed, vide order dated 21.02.2023. Feeling aggrieved, he filed a revision petition which was dismissed by the revisional Court vide judgment/order dated 19.04.2023. Hence, this petition.

3. Learned counsel appearing on behalf of the petitioner maintains that due to inadvertence and misunderstanding he could not file the written reply as two applications for setting aside of the ex-parte proceedings and judgment and decree were pending and one application of Muhammad Aslam is going to be decided on the basis of compromise and the second application of Bashiran Bibi is still pending for summoning of the remaining respondents. He further states that valuable rights of the petitioner are involved in the matter and if the impugned judgments/orders are not set-aside and right to file reply is not granted to him, he would suffer irreparable loss.

4. In this view of the matter, to avoid any further delay in the proceedings and decide the lis on merits, it would be appropriate to provide only one fair opportunity to the petitioner to submit reply of the application subject to payment of costs of Rs. 50,000/- (rupees fifty thousand), which shall be paid by the petitioner to Defendant No. 3 Bashiran Bibi (applicant of application) in the trial Court on the next date of hearing, where-after the learned trial Court shall fix a date, on which date the petitioner shall submit his written reply. It is made clear that only one fair opportunity be granted to petitioner to submit his written reply. In case of failure on the part of the petitioner either to pay costs mentioned supra or to submit written reply, this order shall cease to have its effect automatically without any further order of this Court and the impugned orders shall be deemed to be restored and the learned trial Court shall be at liberty to proceed further with the matter in accordance with law. The writ petition is allowed in the foregoing terms and the impugned judgments/orders dated 21.02.2023 & 19.04.2023 passed by the Courts below are set-aside.

5. Before parting with this order, it is observed that this order has been passed in the interest of justice and in order to avoid any further delay keeping in view the principle that the lis should be decided on merits without any loss of time. If Respondent No. 3 feels dissatisfied with this arrangement/conclusion, then she without receipt of costs may move a miscellaneous application for revival of the writ petition in hand so as to be decided afresh after affording right of audience to her as well.

                        Petition allowed