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| 2025 CLC 1737 |
یک طرفہ ڈگری کے خاتمہ میں تاخیر کی ضمنی معافی: لاہور ہائی کورٹ کا اہم فیصلہ
(2025 CLC 1737)
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مقدمہ کے حقائق
ماتحت عدالتوں کا فیصلہ
ہائی کورٹ کا فیصلہ
آئینی اختیار کا دائرہ
نتیجہ
Must read judgment.
2025 CLC 1737
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shahir, J
MUHAMMAD RAMZAN-Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SHUJABAD and others ---Respondents
Writ Petition No. 15231 of 2024, decided on 14th November, 2024.
(a) Civil Procedure Code (V of 1908)-
-O.IX, R.13-Limitation Act (IX of 1908), 5. 5-Ex parte decree, -Ex parte decree, setting aside of-Limitation-Non-service due to incorrect/incomplete address-Decision of miscellaneous and ancillary applications before passing final judgment-Scope-Not deciding application for condonation of delay before passing final judgment was not fatal--Courts below conscious of its pendency-Delay deemed impliedly condoned---Implied condonation of delay permissible in view of proprietary rights and absence of prejudice to the opposite party---Substantial justice overrides technical objections-The pivotal legal issue that invited the consideration of the High Court was as to "Whether the concurrent findings of the courts helow, whereby the ex parte proceedings and decree were set aside and the suit was revived, could be sustained in law despite the admitted pendency of an application for condonation of delay under S. S of the Limitation Act, 1908, which remained undecided, and whether such omission constituted a material irregularity vitiating the legality and propriety of the impugned orders-The factual backdrop was that the petitioner (now deceased) filed a suit for cancellation of mutation (pertaining to 4-kanals land) and recovery of gold ornaments against his wife, (respondent No. 3), alleging she deserted him after receiving these benefits--The suit was decreed ex parte on 11.07.2015 after proceedings against her were initiated ex parte on 04.10.2014---Respondent No. 3 (wife) filed an application under Order IX Rule 13, C.P.C. to set aside the ex parte proceedings and decree, asserting she only came to know of the decree on 22.02.2022 and filed the application on 29.06.2022-Her plea v plea was that an incorrect/incomplete address was provided, which led to non-service-Application for setting aside ex-parte judgment and decree was accepted and the suit was revived-Revision petition filed thereagainst by the petitioner was dismissed--The petitioner, since deceased, filed constitutional petition through legal heirs and made challenge to the concurrent findings of both the courts below on the grounds that the respondents application was barred by time; her application under 5. 5 of the Limitation Act, 1908, for condonation of delay was not expressly decided, therefore, setting aside the ex parte decree without adjudication of the limitation fore, setting aside the ex parte decree with issue was legally flawed-Held: Notwithstanding the disposal of appeal on merits without dealing with the question of limitation in express words, it would be deemed that there was implied condonation of delay-No one should be condemned unheard and parties should not be knocked out on the basis of technicalities-By revival of the suit the petitioners would still have the right to pursue the remedy available to them under the law, hence, no serious prejudice would have been caused to them by setting aside of the ex-parte judgment and decree-Balance to avoid prejudice to the rights of the parties tilted in favour of maintaining the decision of setting aside the ex parte proceedings and decree and revival of suit for its decision on its own merits-Ever -Even if application for condonation of proprietary rights of the parties were he parties were involved, hence it was appropriate to condone the delay in filing application for setting-aside ex parte decree and consequently order passed by both the courts below were interpreted in the manner that as while setting aside ex parte decree the courts below were conscious of pendency of the application for condonation of delay, hence the delay in filing the application for setting aside ex parte proceedings and decree although not dealt with in express terms had been impliedly condoned-Ex-parte proceedings and decree were set-aside and the suit filed by the petitioners was revived---Constitutional petition was dismissed, in circumstances.
Ashiq Hussain Shah v. Province of Punjab through Collector District, Attock and 6 others 2003 SCMR 1840 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.
Muhammad Sadiq v. Administrator, Residual Properties, Multan Division, Multan/Additional Commissioner (Revenue), Multan Division, Multan and another 1985 CLC 369 ref.
(b) Constitution of Pakistan-
Art. 199-Constitutional jurisdiction of the High Court-Scope-Not -Not every procedural irregularity warrants interference by the High Court-No writ where substantial justice has prevailed-Discretionary nature of Constitutional jurisdiction---Concurrent findings of courts below, principle of it is pertinent to mention that the High Court in its constitutional jurisdiction is not required to interfere in each and every case, where the court or forum below has proceeded with some irregularity while deciding the matter-An order in the nature of a writ of certiorari or mandamus is a discretionary order-Its object is to foster justice and right a wrong, therefore, before a person can be permitted to invoke this discretionary power of a court, it must be shown that the order sought to be set aside had occasioned some injustice to the o the parties--Although it is general practice of procedural law that where an application going to the root of the matter remains undecided usually the courts remand the matter for decision of the same afresh, while also keeping in view the contents of the said application, but the same is not an absolute rule of law and the courts may refuse to set aside the decision inter alia for the reasons that prejudice has not been caused to the rights of the parties or by the said decision justice has been done and to set aside the said decision would result in prejudice to the right(s) of any of the parties Where substantial justice has been done, it is not necessary for the High Court to interfere in Constitutional jurisdiction on the basis of technicalities alone for the reason that Constitutional jurisdiction is discretionary in character and where courts below have given concurrent conclusions, Superior St Courts generally do not interfere in the conclusions arrived at by Courts and Tribunals below.
Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.