Friday, 25 March 2016

Ex-Parte Proceedings in a Civil Suit


PLJ 2012 Lahore 632
[Multan Bench Multan]
Present: Kh. Imtiaz Ahmad, J.
ZUBAIDA BEGUM--Petitioner
versus
FAZAL KARIM and 12 others--Respondents
C.R. No. 433-D of 2011, decided on 20.4.2011.
Ex-parte Proceedings--
----Suit for partition--Application for setting aside ex-parte proceedings was dismissed--Condonation of delay--Valuable rights were involved--Validity--It is not denied that petitioner was a co-sharer and her share was fully protected in preliminary decree--Report of commission was available on record which showed that property was indivisible, so auction had been ordered that she would be entitled to receive her share--Petitioner had filed petition for setting aside ex-parte proceedings after about 12 years and so both Courts below committed no illegality by dismissing her petition as being barred by time--Petition was dismissed.  [P. 633] A
Mr. Muhammad Maalik Khan Langah, Advocate for Petitioner.
Date of hearing: 20.4.2011.
Order
This civil revision is directed against the order dated 27.11.2010 passed by the learned Civil Judge, Class-II, Sahiwal whereby application of the petitioner for setting aside the ex parte proceedings was dismissed and the order 4.1.2011 passed by the learned Additional District Judge, Sahiwal whereby the appeal was also dismissed.
2. The relevant facts for the disposal of this civil revision are that the respondents filed a suit for partition with regard to disputed property in which the petitioner was also impleaded as defendants as she was co-sharer. She did not appear in the Court and was proceeded against ex parte on 5.5.1998. The preliminary decree was passed on 29.09.2004 in which the petitioner was given her due share. However, on 29.4.2010 the petitioner filed a petition for setting aside the ex parte proceedings which was dismissed by the learned trial Court and the appeal was also dismissed. Hence the present civil revision has been filed. This civil revision is barred by 7 days and along with the Civil Revision, CM. No. 2-C-2011 for condonation of delay has also been filed. In the said petition, it is mentioned that the petitioner is old lady and since the valuable rights of the petitioner are involved, so, in the interest of justice, the delay if any be condoned.
3. Since it is a civil revision wherein the legality or illegality of the impugned orders is to be seen, so, in the interest of justice C.M.No. 2-C-2011 for condonation of delay stands accepted.
4. On merits, learned counsel for the petitioner contended that petitioner was proceeded against ex parte on 5.5.1998 but she had received no notice and merely on report of Process Server substituted service of proclamation in the newspaper was made.
5. Arguments heard. Record perused.
6. It is not denied that the petitioner is a co-sharer and her share is fully protected in the preliminary decree. The report of commission is available on record which shows that property was indivisible, so, auction has been ordered and she would be entitled to receive her share. She had filed the petition for setting aside the ex parte proceedings after about 12 years and so both he Courts below committed no illegality by dismissing her petition as being barred by time.
7. This being so, no illegality is found in the impugned orders of both he Courts below. Hence this civil revision has no force and the same stands dismissed in limine.
(R.A.)  Revision dismissed

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