2015 Y L R 1239

2015 Y L R 1239

[Sindh]

Before Aziz-ur-Rehman, J

MURTAZA ALI---Plaintiff

versus

SABIR ALI BANGASH---Defendant

Suit No.643 of 2007, decided on 1st July, 2014.

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

----S. 12(2)---Applicability of S.12(2), C.P.C.---Scope---Judgment, decree or order, setting aside of---Procedure---For determination of application under S.12(2), C.P.C., no procedure has been provided---Courts are not under any absolute obligation to frame issues, record evidence of parties or follow prescribed procedure necessary for decision of a case---Court while dealing with application under S. 12(2), C.P.C., in its own discretion may adopt any mode or procedure for decision of application.

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

----S.12 (2) & O.IX, R.13---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Ex parte judgment and decree, setting aside of---Ex parte judgment and decree was passed against defendant including damages claimed by plaintiff---Defendant sought setting aside of ex parte judgment and decree on the plea of fraud and misrepresentation---Validity---At the time of publication of notice in newspaper, suit No. 'Nil' of 2005 was never dismissed for 'non-prosecution' whereas suit No. 'Nil' of 2005, was pending for hearing of 'office objection' regarding limitation---In fact suit No. 'Nil' of 2005, was dismissed for 'non-prosecution' much later, on 9-10-2006---Notice regarding dismissal of suit was published at the page of newspaper reserved for another city 'H' and not for concerned city 'K'---Suit was decreed as prayed without recording of any evidence for damages claimed by plaintiff but Court was not supposed to pass straight away 'ex parte decree' muchless for damages/recurring damages merely on the basis of assertions made in plaint---Court was obliged to decide case strictly on 'merits' and in accordance with 'law'---Ex parte decree was passed on 9-8-2008, without recording of any evidence---Affidavit in ex parte proof was available on record but plaintiff in his own wisdom avoided to come forward and record his evidence---Pleadings by themselves were not evidence---Defendant in circumstances, was never served properly through any notice and / or summons which was a mandatory condition for proper exercise of jurisdiction---Ex parte judgment and decree passed against defendant was bad for non-fulfilling of mandatory requirements of law---High Court set aside ex parte judgment and decree and defendant was permitted to file his written statement where after suit was to proceed on its own merits---Application was allowed in circumstances.

            Collector Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Hakimuddin v. Faiz Bux 2007 SCMR 874; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1997 SC 447; Mst. Izat and another v. Kadir Bux PLD 1959 Kar. 221 and Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 ref.

(c) Constitution of Pakistan---

----Art.10-A---Right to fair trial and due process of law---Limitation, principle of---Applicability---Proceeding is not time barred by law of Limitation, when decree has been passed erroneously and in violation of 'fair trial' and 'due process', such decree is deemed 'null' and 'void'.

            Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 rel.

(d) Administration of justice---

----Technicalities---Scope---Law favours adjudication of cases on merits and discourage technical knock outs---While deciding cases, technicalities should not be allowed to stand in the way of administration of justice.

(e) Suit for damages---

----Recovery---Proof---Without discharging onus of proof, damages cannot be granted straightaway---Damages require evidence regarding details of losses actually suffered---Even fixed amount of damages cannot be allowed until and unless quantum of losses actually suffered is proved through sufficient evidence---Damages/recurring damages, are firstly to be pleaded and thereafter to be proved by leading reliable trustworthy and cogent evidence.

            Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. PLD 1969 Kar. 233 rel.

            Badrul Alam for Plaintiff.

            Fazal-ur-Rehman for Defendant.

            Date of hearing: 21st May, 2014.

ORDER

 AZIZ-UR-REHMAN, J.---By means of this application under Order IX, Rule 13 read with section 12(2) read with section 151, C.P.C. [C.M.A. No.9052 of 2011] the defendant is seeking setting aside of the Ex-parte Judgment' and 'Decree' dated 30-4-2008 and 9-8-2008 respectively passed in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangash] against the defendant as 'prayed'.

2.         The relevant facts in small compass giving rise to the filing of C.M.A. No.9052 of 2011 in the background read as follows:--

3.         The aforesaid suit filed by the plaintiff on 24-8-2005 was/is for Specific Performance of Contract dated 15-12-1998 alternatively for refund of US Dollars 1,16,900 or its equivalent in Pakistani currency Rs.11,46,363 [in case relief of Specific Performance of contract is not granted], damages in the sum of Rs.28,000,000 (Rupees Twenty Eight million only) and recurring damages @ Rs.1,00,000 [Rupees One Lac only] per month from the date of filing of the suit till delivery/supply of the timber or refund of the amount. The prayer sought by the plaintiff read as follows :--

(a)        Specific performance of the agreement dated 15-12-1998 [annexure 'A' to the plaint] directing the defendant to take all such steps as are necessary for supplying of 12,266 cubic feet [443 cubic meters] of timbers in terms of the agreement dated 15-12-1998 and to supply the said 12,266 cubic feet [443 cubic meters] timber to the plaintiff. Alternatively for refund of US $ 1,16,900 or its equivalent in Pakistan currency and Rs.11,46,363 in case relief of specific performance is not granted;

(b)        Payment of Rs.2,80,00,000 as damages;

(c)        Payment of recurring damages at the rate of Rs.1,00,000 per month from the date of filing of the suit till delivery/supply of the timber or refund of the amount.

(d)        Cost;

(e)        Such further and other relief that this Hon'ble Court may deem fit and proper in the circumstances of the case.

4.         Per averments made in the application under Order IX Rule 13 r/w section 12(2) read with section 151, C.P.C. [C.M.A. No.9052/2011] and its supporting affidavit, the 'ex-parte judgment and decree' passed as 'prayed' in Suit 643/007 [Murtaza Ali v. Sabir Ali Bangash], have been obtained, inter alia on the basis of 'misrepresentation', 'fraud' and concealment of facts by the plaintiff [Decree-holder].

5.         The plaint, as is evident from the record, was presented on 24-8-2005 but it was not admitted until 22-5-2007 when the 'OFFICE OBJECTION' regarding bar of the suit under Article 113 of Limitation Act, 1908 [IX of 1908] was over-ruled. In the 'prayer clause' the plaintiff, inter alia had also sought specific performance of the agreement purportedly signed on 15-12-1998. Nevertheless, it is worth to note that under Article 113 of the Limitation Act, 1908 (IX of 1908), the time period for the 'Specific Performance' of the Contract is 03 years.

6.         On 28-11-2005, when the above Suit No2.'Nil' of 2005 came-up before the court for orders on the 'OFFICE OBJECTION' then, the following order was passed:-

…

            '28-11-2005

            Mr. Badarul Alam, Adv.
            -x-

            Let in the first instance notice be issued to the defendant for 12-12-2005 for hearing on the office objection.' [Underlining is added for emphasis].

7.         Apparently, on 12-12-2005, the case stand discharged. Thereafter, on 16-1-2006 at the request of the plaintiff, the case was adjourned. From perusal of the subsequent order passed on dated 27-2-2006, it transpires, that notice regarding 'OFFICE OBJECTION' was received by the son of the defendant. Nonetheless, due to absence of the defendant in court 'fresh notice' was ordered to the defendant by all modes including publication. Notice, in terms of order dated 27-2-2006, was not issued to the defendant by all modes including publication, however, Mr. Irfan of Messrs Amanullah Khan Advocates, on 2-10-2006, filed his power on behalf of the defendant. On demanding copies of the pleadings, the learned counsel for the plaintiff, undertook to supply the same. The case, thereafter, was adjourned to 9-10-2006 for hearing of 'OFFICE OBJECTION'. Per PUBLI-CATION of notice in 'Daily Jang' dated 11-3-2006, the case was notified as 'dismissed' [KHARIJ KIA GIA HAI] in terms of Article 113 of the Limitation Act, 1908 (IX of 1908).

8.         Much after i.e. on 9-10-2006, neither the plaintiff nor the plaintiffs counsel was in attendance, therefore, the Suit No. 'Nil' of 2005, at the stage of hearing of 'OFFICE OBJECTION', was dismissed for 'NON-PROSECUTION'. Upon dismissal of the Suit bearing No.'Nil' of 2005 for 'NON-PROSECUTION', the plaintiff thereafter, filed an application under Order IX, Rule 9, C.P.C. read with section 151, C.P.C. [CMA No.7881 of 2006] with a prayer for restoring the suit to its 'ORIGINAL POSITION'.

9.         On 6-11-2006 notice to the defendant on C.M.A. No.7881 of 2006 [being an application under Order IX, Rule 9, C.P.C., r/w S.151 C.P.C.], was ordered. From the bailiffs report dated 16-12-2006, it reveals, that notice was served on the defendant's counsel and not on the defendant himself. The defendant's counsel, it is worth to mention, after dismissal of the suit on 9-10-2006 was not supposed to appear on behalf of the defendant. Thereafter, on 22-1-2007, without issuing any notice to the defendant, the case was adjourned for a date to be fixed by the office obviously at the request of plaintiffs counsel. Upon dismissal of the Suit No.'Nil' of 2005 for 'NON-PROSECUTION, defendant was issued a LEGAL NOTICE dated 27-2-2007, by his counsel for discharge of his 'VAKALATNAMA'. The relevant part of the notice issued to the defendant by his counsel reads as follows:--

            "...I have to advice you that the above suit is fixed in court on 12-3-2007.

            I, therefore, call upon you and demand of you to pay my Professional Fee and Misc. Expenses in the above suit within a week hereof failing wherein I shall not appear in the above suit on 12-3-2007 on your behalf and you shall be responsible for the consequence." [Underlining is added for emphasis].

10.       From perusal of the order sheet, however, it transpires that the case, as mentioned in the legal notice dated 27-2-2007, was never fixed in court on 12-3-2007. It is worth to mention, that on 9-10-2006, the suit was dismissed for 'NON-PROSECUTION' at the stage of hearing of 'OFFICE OBJECTION' but in the Notice published long ago in 'Daily Jang' of 11-3-2006, the suit was notified as 'KHARIJ KIA GIA HAI'. Such publication in 'Daily 'Jang' of 11-3-2006 besides fraudulent was misleading.

11.       Nevertheless, on 7-5-2007, when C.M.A. 2120 of 2007 [i.e. an APPLICATION under Rule 50 SCCR [O.S.] filed on 22-3-2007, for discharge of 'VAKALATNAMA' by learned counsel for the defendant], came-up before the court along with another application bearing C.M.A. No.7881/2006 for RESTO-RATION of Suit No2 'Nil' of 2005, [dismissed on 9-10-2006], then both the aforesaid applications were granted and 'Vakalatnama' of learned counsel for the defendant was discharged, and Suit No.'Nil' of 2005 was also restored to its 'ORIGINAL POSITION'. Being relevant order dated 7-5-2007, is reproduced herein below:--

            "7-5-2007

            Mr. Badrul Alam, Advocate for Plaintiff

            Mr. Amanullah Khan, Advocate for defendant

(1)        Mr. Amanullah Khan has resorted to move an application under Rule 50 of Sindh Chief Court Rules [O.S.] for withdrawal of his Vakalatnama, as he has served a notice upon defendant dated 27-2-2007 and has produced a copy of notice along with Acknowledgment Receipt. In this view of matter, his request is acceded. He is discharged from appearing on behalf of defendant.

            Office is directed to issue intimation notice to the defendant in this behalf, his name be removed from the file cover.

            Mr. Badrul Alam has contended that suit was dismissed for NON-PROSECUTION on 9-10-2006, he could not appear on the date of hearing on account of sickness. However, at 10.00 A.M., it transpired that suit was dismissed in NON-PROSECUTION therefore, he has proceeded to file application on 10-10-2006 for restoration of suit.

            It is contended by learned counsel for plaintiff that the application has been filed within time along with supported his personal affidavit. He could not appear on the date on account of his sickness therefore, it could not be conveniently held that absence on the date of hearing was neither wilful nor deliberate.

            It appears that office has raised certain objections, which were to be heard. Suit was dismissed in NON-PROSECUTION, cogent reason has been shown by the learned counsel for non-appearance therefore, impugned order is hereby set-aside. Suit is restored to its ORIGINAL POSITION. [Underlining and emphasis supplied].

            To come-up on 22-5-2007 for hearing of office objections."

12.       The suit No.'Nil' of 2005, dismissed on 9-10-2006, thus was restored to its 'ORIGINAL POSITION', however, without proper service upon the defendant. Even order dated 7-5-2007, seems self-conflicting, as on one hand 'intimation notice' was ordered/issued to the defendant and on the other hand suit [dismissed on 9-10-2006], was straight away restored to its 'ORIGINAL POSITION' without any service on the defendant in terms of order dated 6-11-2006. Per bailiff report of 22-5-2007, the Notice issued remained un-served on the defendant. Not only this, even the 'INTIMATION NOTICE' issued in terms of order dated 7-5-2007 for 22-5-2007, per bailiff report dated 22-5-2007, also remained un-served on the defendant.

13.       On 22-5-2007, when again the matter came-up before the court then the 'office objection' at the back of defendant was OVER-RULED, without service of notice/intimation notice upon the defendant i.e. after discharge of Vakalatnama of Mr. Amanullah Khan/Irfan, Advocates. It is important to note, that in the 'NOTICE OF DISCHARGE OF VAKALATNAMA' the case was notified as fixed in court on 12-3-2007 but in fact, as is evident from the record, the case, was ever
fixed in court on 12-3-2007. The operative part of order dated 22-5-2007 reads as follows:--

            "In any event no time for completion of the contract was fixed, under Article 113 of Limitation Act time shall commence when the plaintiff had notice that performance was being refused. The refusal came to the plaintiff's knowledge when notice served on the defendant remained unacknowledged. I am therefore of the view that the suit is not barred by law or Limitation. The office objection is accordingly overruled. Suit be admitted by the office in accordance with law". [Under-lining and emphasis added].

14.       Significantly, Suit No.'Nil' of 2005 was not only restored to its 'ORIGINAL POSITION' on 7-5-2007 but 'OFFICE OBJECTION', was also over-ruled on 22-5-2007 i.e. without service of any notice on the DEFENDANT in terms of orders passed by the court. Upon admission of the suit, thereafter, it was allotted Suit No.643 of 2007. [Murtaza Ali v. Sabir Ali Bangash].

15.       There is no order for 'ISSUANCE OF SUMMONS' to the defendant after 'admission of the suit' either by court or by Addl. Registrar [O.S.], however, per diary sheet of Addl. Registrar [O.S.] dated 18-9-2007, summons retuned served
upon the defendant. Per the aforementioned diary of Addl. Registrar [O.S.], the defendant, was given four weeks' time for filing his 'written statement'. According to the diary sheet of Addl. Registrar [O.S.] dated 15-11-2007, no 'written statement' was filed by the defendant since, 18-9-2007. As such, the case was fixed in court for 'EX-PARTE ORDER' on 10-12-2007.

16.       On 10-12-2007, when the suit, for the first time after its registration, came-up before the court, the following order was passed:--

            "10-12-2007
            None present

            As per bailiff report summons have been served on 10-9-2007 but none appeared. To meet the ends of justice notice be repeated through bailiff, courier service and through pasting as well on the outer wall of the premises." [Underlining is mine].

17.       Per diary sheet of Addl. Registrar [O.S.] dated 11-1-2008 summons issued for 20-12-2007, per bailiff report dated 17-12-2008, was pasted on the 'outer wall' of the defendant. The relevant diary of Addl. Registrar [O.S] dated 11-1-2008 reads as follows:--

            "11-1-2008

            As per C/ order dated 10/ 12/ 07, summons issued to defendant through pasting and courier.

            The bailiff has pasted the summons on the outer door of defendant. [Underlining is mine].

            Let matter be placed in court for ex parte order on 28/1/08

            Adj to 15/2/08."

18.       Importantly, the COURIER RECEIPT' does not bear/mention the address of the defendant. So also, the 'BAILIFF REPORT' of 17-12-2008 is short of the requisites as prescribed under Rules 141, 143 and 144 of the Sindh Court Rules [O.S. Without issuing and/or serving summons strictly in accordance with law/rules and 'WITHOUT HOLDING THE SERVICE HELD GOOD UPON THE DEFENDANT', 'ex parte order' nonetheless was passed. The 'ex parte' order of 4-2-2008 being relevant is reproduced herein below:--

            "4-2-2008
            None present for the defendant

            Mr. Badrul Alam, adv. called absent. Mr. Murtaza Ali the plaintiff is present in person. Office has submitted report that no written statement has been filed by the defendant despite of service held good. The suit to proceed ex perte. The plaintiff is directed to file affidavit in ex parte proof. Adjourned to a date in office." [Underlining is mine].

19.       From the record, it is evident that 'AFFIDAVIT-IN-EXPARTE PROOF' in compliance with order dated 4-2-2008 was filed by the plaintiff on 21-4-2008. On 30-4-2012, when finally, the case came-up before the court, then WITHOUT RECORDING THE 'EXAMINATION-IN-CHIEF' of the plaintiff, arguments were straight away heard and the case was reserved for orders.

20.       On 8-7-2008, the judgment was announced and the plaintiffs suit was 'DECREED AS PRAYED'. The operative part of the judgment passed on 30-4-2008 [without recording any examination-in-chief/evidence of the plaintiff and/or exhibiting of any documents], reads as follow:--

            "In view of the original documents produced by the plaintiff along with his affidavit-in-ex parte proof the plaintiff is entitled for the relief claimed. In absence of any rebuttal, the case of the plaintiff has altogether remained unshaken and un-rebutted. In the given circumstances, there is no other alternate but to accept the contents made by the plaintiff in his plaint. Accordingly, his suit is decreed as prayed." [Underlining and emphasis supplied].

…

21.       The 'JUDGMENT of 30-4-2008' was followed by 'decree of 9-8-2008'. Upon passing of the DECREE, EXECUTION APPLICATION BEARING NO.39 OF 2011 (Murtaza Ali v. Sabir Ali Bangash] was filed on 7-2-2011. The amount claimed per column No.9 of the Execution Application No.39 of 2007 is given as below:--

9. Total Amount Specific performance of the agreement dated 15-12-1998 [annexure 'A' to the plaint] and Rs.3,45,15,102 [till the date of filing of the execution application]. ALTERNATIVELY Refund of U.S. $ 1,16,900 or its equivalent in Pakistani currency and Rs.11,46,363 in case of non-performance of the agreement dated 15-12-1998 and Rs.3,45,15,102 [till the date of filing of the execution application].

22.       Needless to say, that the plaintiff's suit was 'DECREED AS PRAYED' [i.e. for all prayers including damages in the sum of Rs.28,000,000 and recurring damages @Rs.1,00,000 per month from the date of filing of the suit till refund of the amount].

23.       On 14-12-2011, when above-mentioned Ex. Apln 39 of 2007 (Murtaza Ali v. Sabir Ali Bangash) came-up before the court then the following order as passed:--

            "14-12-2011

            Mr. Badar-ul-Alam, Advocate for decree-holder

            Mr. Fazalur Rahman, Advocate for judgment debtor

            Let learned counsel for the Decree Holder assist the Court as to how the decree is to be executed since the plaintiff's suit was decreed as prayed and the prayer clause, as presently relevant, sought either specific performance of the agreement dated 15-12-1998 or in the alternative a certain sum of money as therein specified. For this purpose adjourned to 17-1-2012." [Under-lining is mine].

24.       Upon service of the notice of the Execution Application No.39 of 2007 [Murtaza Ali v. Sabir Ali Bangash], Syed Fazlur Rehman, Advocate filed his 'Vakalatnama' on behalf of defendant-Judgment-Debtor [viz Sabir Ali Bangash], on 17-8-2011. The Ex. Apln, since, 2nd February, 2012 is coming up along with this suit. Upon getting knowledge of the 'ex parte judgment' and 'decree', the defendant immediately on 11-8-2011 filed the instant Application under Order IX, Rule 13 read with section 12(2), C.P.C. and Section 151, C.P.C. [C.M.A. No.9052 of 2011]. The Plaintiff-Decree-Holder [viz Murtaza Ali], in response thereto, filed his 'Counter Affidavit' whereby, the application for setting aside of 'ex-parte judgment' and 'decree' dated 30-4-2008 and 9-3-2008 respectively has been opposed. The above C.M.A. No.9052 of 2011 when came-up before me, I heard Syed Fazlur Rehman, learned counsel for defendant and Mr. Badrul Alam, learned counsel for plaintiff and with their valuable assistance also gone through the available record before me.

25.       Mr. Syed Fazlur Rehman, learned counsel for defendant forcefully argued that the 'ex parte judgment' and 'decree' passed on 30-4-2008 and 9-8-2008 respectively in Suit No.643 of 2007 against the defendant having been obtained by 'misre-presentation', 'fraud' and 'concealment of facts'. According to the learned counsel, the defendant, to the knowledge of the Plaintiff-Decree Holder, had left his business place [viz. Bangash Chamber Trading Co., Kaka Street, Opp. KMC Workshop, Nishtar Road, Karachi] i.e. after dismissal of the suit for 'NON-PROSECUTION' on 9-10-2006. Per 'OFFICE OBJECTION' the suit is barred under Article 113 of the Limitation Act, 1908 [IX of 1908]. Article 113 of the Limitation Act, 1908 [IX of 1908], prescribes 03 years period for 'specific performance' of a contract. Per learned counsel, the contract in the case in hand is of 15-12-1998 as such the suit filed on 24-5-2005, on the face of it was/is hopelessly time-barred and as such is liable to be dismissed with costs.

26.       No doubt, notice was issued to the defendant but per order dated 27-2-2006, it was served on the son of defendant. Of course, counsel was engaged but then immediately on 9-10-2006, the suit was dismissed for 'NON-PROSECUTION' when it was fixed for hearing of 'office objection'. The instant suit was filed on 24-8-2005 but was not admitted until 22-5-2007 due to the aforesaid 'OFFICE OBJECTION'.

27.       Upon dismissal of the suit on 9-10-2006, the previous learned counsel for defendant, as it appears from the record, had filed C.M.A. No.2120/2007 [Application under Rule 50 SCCR (OS)], for withdrawal of his 'Vakalatnama'. The same was allowed on 7-5-2007 and office was directed to issue 'INTIMATION NOTICE' to the defendant directly. Notwithstanding, the order for 'ISSUANCE OF INTIMATION NOTICE' to the defendant, simultaneously, the Application for restoration of the suit to its 'ORIGINAL POSITION' bearing C.M.A. No.7881 of 2006, was also allowed, and cones-quently, the suit dismissed for 'non-prosecution' on 9-10-2006, was restored to its 'ORIGINAL POSITION' on the same day i.e. 7-5-2007.

28.       Not only this, per learned counsel, thereafter, on 22-5-2007, the OFFICE OBJECTION' regarding bar of the suit under Limitation Act, 1908 [IX of 1908] was also 'OVERRULED' and that too without service of 'NOTICE' on the defendant. The suit was thus ordered to be admitted in accordance with law. The RESTORATION' of the Suit No.'Nil' of 2005, on 7-5-2007 to its 'ORIGINAL POSITION and OVERRULING OF THE 'OFFICE OBJECTION' regarding bar of the suit under Article 113 of the Limitation Act, 1908 [IX of 1908] was thus done at the back of the defendant, of course, in absence of any service. Finally, on 4-2-2008 'EX-PARTE ORDER' was passed against the defendant and that too without service of summons.

29.       Per learned counsel, the Plaintiff [Decree Holder], was well aware about the defendant's abandonment of his business at the given address/mentioned in the title of suit but the plaintiff malafidely suppressed and/or avoided this material fact from this court with the obvious aim to obtain an ex parte order/ex parte decree from this court through 'fraud', 'misrepresentation' and 'suppression of the true facts'. According to the learned counsel, the bailiff has put false, fabricated and forged signature on the summons issued for 18-9-2007. Per learned counsel, the defendant [Judgment Debtor] during the period of 9-5-2007 till 26-11-2007, was abroad. Nonetheless, when the matter came-up before the Court on 10-12-2007, the court, to meet the ends of justice, ordered notice [not summons] to the defendant through 'bailiff', 'courier service' and 'pasting' but the summonses were not issued and/or otherwise, service not effected on the defendant strictly in terms of order dated 10-12-2007.

30.       On coming to know about the 'ex parte judgment' and 'decree' the defendant, per averments, rushed to this court. Indeed, after hectic efforts and going through the record of the proceedings, it was found, that the plaintiff by playing 'fraud' and 'misrepresentation' has malafidely obtained ex-parte 'judgment' and 'decree' against the defendant. Per record, the defendant was never served by any 'notice' and/or 'summons' of the suit muchless after dismissal of the Suit No.2 'Nil' of 2005 for 'NON-PROSECUTION' on 9-10-2006. Moreover, the defendant had no information/knowledge whatsoever about RESTORATION of the suit to its 'ORIGINAL POSITION i.e. for hearing of 'OFFICE OBJECTION'. The defendant's counsel after dismissal of the suit for 'NON-PROSECUTION' was not supposed to appear on behalf of the defendant.

31.       In response, on 15-8-2013, the plaintiff filed a detailed 'Counter Affidavit' to the Application under Order IX Rule 13 r/w Section 12(2) r/w Section 151, C.P.C. [C.M.A. No.9052 of 2011], wherein the assertion made in the application, was denied as being false, incorrect, mala fide and based on concealment of facts. Besides, it was averred that application as framed and filed is barred by limitation a such merits no consideration. Per plaintiff, the application has been filed with a sole and malicious object to deprive the plaintiff from the fruit of 'ex parte' decree passed in his favour. No 'frauds and/or 'misrepresentation' as alleged has ever been committed by the plaintiff upon the court.

32.       According to the plaintiffs counsel, the defendant had never left the business place or otherwise, handed over possession thereof to anybody else and/or otherwise, had left the country as alleged by the defendant. Further, it was urged that from the very beginning, the defendant adopted avoiding attitude/delaying tactics. Summonses/notices of the suit, no doubt, were issued to the defendant by all modes of service including registered post A/D. courier and publication in 'daily Jang' dated of 11-3-2006. Upon filing the application for restoration of the suit [C.M.A. No.7881 of 2006], notice was also issued to the defendant through bailiff. Even after restoration of the suit on 7-5-2007, per Mr. Badrul Alam, learned counsel for the plaintiff, intimation notice regarding 'OFFICE OBJECTION' pertaining to bar of the suit under Article 113 of the Limitation Act, 1908 (IX of 1908) was also issued for 22-5-2007 but the defendant intentionally did not appear as such the 'OFFICE OBJECTION' was overruled on 22-5-2007.

33.       According to Mr. Badrul Alam, learned counsel for the plaintiff, the defendant was served with the summons and had thus knowledge of the pending proceedings. Pre learned counsel, it is incorrect to say, that on 10-9-2007, the defendant was not available in the country. Per plaintiffs stand the copies of the pages of PASSPORT of the defendant and the 'CERTIFICATE of Karachi Timber Merchant's Group,' filed along with the application [C.M.A. No.9052 of 2011] are false, manipulated. Rather it has been maliciously got prepared for the specific purpose of the application under reply. Per learned counsel, the signature of the defendant on the Notice issued for 18th September, 2007, PER BAILIFF REPORT of 11-10-2007 is not bogus and/or forged. Mr. Badrul Alam further contended that in absence of any 'affidavit-in-rejoinder', the contents of 'Counter Affidavit' be deemed and treated as true and correct as the same have gone un-rebutted/un-challenged.

34.       Mr. Badrul Alam, learned counsel for the Plaintiff-Decree Holder vehemently argued that the 'EX-PARTE JUDGMENT' AND 'DECREE' passed on 30-4-2008 and 9-8-2008 respectively, in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangash] are valid, proper and have been passed after due and proper scrutiny of the record. The defendant, per learned counsel, has approached this court with un-clean hands. As such, is not entitled to any relief. The application as framed and filed is liable to be dismissed with cost. Otherwise, the plaintiff shall be seriously prejudiced, the learned counsel for the Plaintiff [Decree Holder] forcefully contended.

35.       Heard and perused the record minutely.

36.       At this stage, before further proceedings, I would like to refer to Chapter VI of Sindh Chief Court Rules (O.S.), which pertains to the process of service. The relevant rules, as far as the case in hand is concerned, are Rules 141, 143 and 145 of Sindh Chief Courts Rules [O.S.] which for ready reference and convenience purpose are reproduced herein below:--

            "141. Procedure where defendant refuses to accept service or cannot be found. Where the person to be served refuses to sign the acknowledgment or cannot be found, the serving officer shall whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thump-impression of at least one respectable person of the locality in support of such fact.

            143. Service by affixing to outer door. If a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:

(1)        the number of times and the dates and hours at which he went to the house;

(2)        the attempts made by him to find the person to be served;

(3)        whether he had any, and what, reason to suppose that such person was within the house or in its neighbourhood, or endeavouring to evade service;

(4)        whether any adult male member of the family of the person to be served was residing with him,

            145. Inquiry as to sufficiency of service. The Registrar (O.S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefore in such process by or on behalf of the person or persons against whom it has been
issued.

            Such inquiry may be adjourned, if necessary, from time to time. Affidavits and further affidavits may be received or evidence taken viva voce at such inquiry.

37.       From the record of the case, it is crystal clear that aforesaid rules have not been followed in its letter and spirit. The 1st DIARY of the Additional Registrar [O.S.] dated 27-6-2006 speaks that the defendant was served through publication in 'Daily Jang' Urdu, Karachi dated 11-3-2006. The 'diary' of 27-6-2006 of the Additional Registrar [O.S.], 'NOTICE' published in 'Daily Jang' Urdu, Karachi dated 11-3-2006, Court's order dated 28-11-2005 and 27-2-2006, if read together then the publication of NOTICE in Daily Jang of 11-3-2006 besides mis-leading is fraudulent. Per notice PUBLISHED in 'Daily Jang' Urdu, Karachi dated 11-3-2006, the Suit No.Nil of 2005, has been shown as 'KHARIJ KIA GAYA HAI'. Further, the notice was published at the page of 'Daily Jang', ex-facie, reserved for 'HYDERABAD' and not for 'KARACHI'. In view of this position the presumption would be that there is/was no service of notice at all for hearing of 'OFFICE OBJECTION' as was directed through orders dated 28-11-20005 and 27-2-2006. Importantly, the suit was dismissed for 'NON-PROSECUTION' much after on 9-10-2006 but it was notified as 'KHARIJ KIA GIA HAI' in the 'NOTICE published in Daily Jang Karachi of 11-3-2006.

38.       Indeed, in view of this position, such publication of NOTICE is not only 'fraudulent' but also misleading. Consequently, the orders passed thereafter in violation of 'fair trial' and 'due process' are deemed to be null and void. Being relevant, at this juncture I would like to refer to the case of Collector Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681), wherein it was held as follows:--

            "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal." (Underlining is mine].

39.       Never, any positive efforts were made to serve the defendant [Judgment Debtor] with notices/summonses personally. Rather, the Decree was procured by means of 'fraud', 'mis-representation' and 'active concealments of facts' during the proceedings. The pendency of suit was continuously kept concealed from the defendant. In view of this position, the ex parte judgment and decree passed in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangush] are liable to be set aside. In this regard reliance is placed on the case of Mehr Din through Legal Heirs v. Azizan and another [1994 SCMR 1110] wherein it was observed is follows:--

            "…… The sum and substance of the petition is that the decree holder practiced fraud in the service of summons and kept the pendency of the suit against the respondents concealed from them by fraud and misrepresentation. The copies of the summons placed on the file reveal that proper procedure was not observed in effecting service upon the respondents who were admittedly Pardanashin ladies and special care had to be taken to inform them of the filing of the suit. The report on the first summons show that the respondents informed the process-server that in the absence of their attorney they cannot sign or thumb-impress the summons while at the time of visit of the process server for the second time for effecting service, the respondents were not present in their house. No effort was made to personally serve the respondents in the presence of their close relatives. The learned High Court has exhaustively incorporated the relevant provisions of C.P.C. pertaining to service on the parties which have not been complied with and the High Court justifiably felt inclined to annul the ex parte decree against the ladies/ respondents and ordering de novo trial"....[Underlining is mine].

40.       Besides, the rules and regulations are framed to streamline the procedure and course of justice. Law always prefers decision of the cases on merits and discourages the technical knockout. The purpose behind all legal formalities and procedure is only to get ensure the administration of justice and thwart the injustice. On this aspect, the relevant observation from the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) reads as follows:--

            "I must confess that having dealt with technicalities for more than forty years out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on around of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." [Underlining is mine].

41.       Moreover, a person who challenges the validity of the Orders, Judgment and Decree obtained by means of 'fraud, 'misrepresentation' of facts or want of jurisdiction may seek his remedy under section 12(2), C.P.C. section 12(2), C.P.C. for ready reference is reproduced herein below:--

            "Sec. 12/2].---Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

42.       Bare perusal of section 12(2), C.P.C. would show that no procedure for determination of the APPLICATION under section 12(2), C.P.C., has been provided [i.e. that is to say courts are not under any absolute obligation to frame issues, record evidence of the parties and/or follow the prescribed procedure necessary for decision of a case]. No doubt, court while, dealing with the application under section 12(2), C.P.C., in its own discretion may adopt any mode or procedure for decision of the application under section 12(2), C.P.C. In view of this position neither any issue needs to be framed and/or evidence recorded. As far as, the contention of the learned counsel for the plaintiff regarding non-filing of 'affidavit-in-rejoinder' by defendant in response to the plaintiffs counter affidavit' is concerned, in such eventuality, indeed it is true that the contents of the 'Counter Affidavit' are usually deemed as correct and true but this is not an 'ABSOLUTE RULE' if, the record of the proceedings [as the case in hand] speaks otherwise. In the case in hand the elements of 'fraud' are apparent on the face of record as such the filing of 'affidavit-in-rejoinder' becomes immaterial under the facts and circumstances of the case.

43.       To understand the meaning of words 'fraud' and misrepresentation' as used in section 12(2), C.P.C. and the word collusion', I would like to refer to the case of Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR 1097) wherein 'fraud', 'mis-representation' and 'collusion' have been dealt with/dilated upon as under:--

            "Fraud"

            "Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221."

            "A party to a fraud is not allowed to plead his own fraud" (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134).

            "Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).

            "The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two person that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655).

            "For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud" (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lah. 396).

            "Fraud"

            "A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury"…….. "A generic tern, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated" (Blacks Law Dictionary Fifth Edition).

            "Misrepresentation"

            "Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." (Blacks Law Dictionary Fifth Edition).

            "Collusion"

            "An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose". (Blacks Law Dictionary Fifth Edition). [Underlining is mine].

44.       The above definition of 'fraud, 'mis-representation', 'collusion', if seen along with the record of the present case, then one can easily see and judge that the 'ex parte decree' against the defendant [Judgment Debtor] has been obtained through 'mis-representation' and 'fraud'. Such MISREPRESENTATION etc. is quite apparent from the notice published in 'Daily Jang' of 11-3-2006. The NOTICE SO PUBLISHED, is not only on the page of the Newspaper reserved for 'HYDERABAD' but the Suit No.2 Nil of 2005, has been notified as 'KHARIJ KIA GAYA HAI'. The publication of such notice besides 'mis-leading' is 'fraudulent'. It is worth mentioning that Suit No. 2 Nil of 2005, was dismissed for 'NON' PROSECUTION' much later [i.e. 9-10-2006], when it was fixed for hearing of 'OFFICE OBJECTION' regarding bar of the suit under Article 113 of the Limitation Act, 1908 [IX of 1908].

45.       The publication of notice in Daily 'Jang' dated 11-3-2006, thus, was fraudulently floated regarding 'DISMISSAL OF THE SUIT' and not hearing of 'OFFICE OBJECTION' per order dated 28-11-2005. It is worth to note, that at the time of publication of notice in 'Daily Jang on 11-3-2006, the Suit No. 'Nil' of 2005 was never dismissed for 'NON-PROSECUTION'. Actually the Suit No. 'Nil' of 2005, was pending for hearing of OFFICE OBJECTION' regarding limitation. In fact, the Suit No.'Nil' of 2005, was dismissed for 'NON-PROSECUTION much later, on 9-10-2006. Not only this, the notice regarding dismissal of the suit was published AT THE PAGE OF 'DAILY JANG', RESERVED FOR 'HYDERABAD' AND NOT FOR 'KARACHI'.

46.       Moreover, the suit was 'DECREED AS PRAYED' without recording of any evidence inter alia for DAMAGES claimed in the sum of Rs.28,000,000 [Rupees Twenty Eight Millions only] and RECURRING DAMAGES @ Rs.1,00,000 [Rupees One Lac only] per month from the date of filing of the suit till delivery/supply of the timber or refusal of the amount. Under law, courts are not supposed to pass straight away 'EX-PARTE DECREES' muchless for damages/recurring damages merely on the basis of assertions made in the plaint. Rather, Courts are obliged to decide the cases strictly on 'merits' and in accordance with 'law'.

47.       In the present case, the 'EXPARTE DECREE' was passed on 9-8-2008, 'of course', without recording of any evidence. The 'AFFIDAVIT-IN-EXPARTE PROOF', no doubt, was available on record but the plaintiff in his own wisdom avoided to come forward and record his evidence. Pleadings by themselves, are not evidence. Reliance can be placed on the case of Hakimuddin v. Faiz Bux (2007 SCMR 874] wherein it was held as follows:-

            "5…… It is an admitted fact that respondent did not appear before the trial court to prove the content of the plaint. It is established law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the
pleadings would carry no
weight unless proved from the evidence in court or admitted by the other party …… It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim."... [Underlining is mine].

48.       Apart from the above, the 'Ex-Parte Judgment' and 'Decree' passed in the case in hand besides selves-conflicting are also un-executable BECAUSE ALONG WITH ALL OTHER PRAYERS THE ALTERNATIVE PRAYER HAS ALSO BEEN GRANTED [i.e. All prayers]. Indeed, Courts/Tribunals are vested with jurisdiction only to decide cases rightly and in accordance with law. Otherwise, Courts may go outside the jurisdiction conferred on it. In the instant case, not only 'DAMAGES' and 'RECURRING DAMAGES' were granted without recording of any evidence but the suit, as a whole, was decreed for all prayers including the prayer sought in the ALTERNATIVE. On this aspect of the matter reliance is placed on the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), wherein it was declared as
follows:--

            "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of
law in deciding the matter
before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in' excess of its jurisdiction."

49.       On this score as well, the 'Ex Parte Judgment' and 'Decree' dated 30-4-2008 and 9-8-2008 respectively passed in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangush] are liable to be set aside as the same besides having been obtained on the basis of 'misrepresentation', 'collusion' and active concealment of facts have been obtained wrongly and illegally.

50.       In view of this legal position, the application bearing C.M.A. No.9052 of 2011 for setting aside of 'ex-parte Judgment' and Decree passed in Suit No.643/2007 [Murtaza Ali v. Sabir Ali Bangush] in the prevailing facts and circumstances of the Suit bearing No.643 of 2007, besides well competent in law, is not time barred by the law of Limitation as the 'decree' in the case in hand has been passed erroneously and in violation of 'fair trial' and due process as such be deemed 'null' and 'void'. Regarding this aspect of the matter the relevant observations from the case of Shabir Ahmed v. Kiran Khursheed and others (2012 CLC 1236), read as below:--

            "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that each person shall be accorded certain 'process' if they are deprived of life, liberty or property---The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis and under-lining are mine].

51.       In the present case, since the defendant, was never served properly through any NOTICES and/or SUMMONS which is a mandatory condition for proper exercise of jurisdiction, as such, the 'ex-parte judgment and decree passed in Suit No.643/2007 [Murtaza Ali v. Sabir Ali Bangush] is also bad for non-fulfilling of the mandatory requirements of law. As such besides of no legal effect is liable to be set aside. Any 'mis-representation' and/or active 'concealment of facts' deliberately made upon the Court surely amount to 'fraud' which resultantly would vitiate the decree so passed. Reliance is placed on the case of Mst. Izat and another v. Kadir Bux (PLD 1959 (W.P.) Karachi 221) wherein it has been observed as under:--

            'Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the party has deliberately put forward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party.' [Under-lining is mine].

52.       Significantly, law favours adjudication of cases on merits and dis-courage technical knocked out. While, deciding the cases technicalities should not be allowed to stand in the way of administration of justice. In the case in hand, of course, erroneously heavy damages in the sum of Rs.28,000,000 [Rupees Twenty Eight Million only] and recurring Damages @ Rs.1,00,000 [Rupees One Lac only] per month from the date of filing of suit till delivery/ supply of timber or refund of the amount along with other reliefs have been granted straight away i.e. without leading of evidence. Moreover the 'ALTERNATIVE PRAYER' made by the plaintiff was also granted along with other prayers. Such grant of prayers indeed have rendered the decree' passed on 30-4-2008 as un-executable and of no legal effect.

53.       Consequently, the 'Judgment and 'Decree' passed in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangash] based on earlier orders of 7-5-2007 and 22-5-2007 are of no legal effect as the same having been passed without proper service of notices/ summons upon the defendant and in absence of a fair opportunity of hearing to the defendant. Reliance can be placed on the case of Yousuf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) wherein it was held as follows:--

            '4. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.'

54.       Even in the plaint no details of damages are available. Besides, the plaintiff has failed to discharge his ONUS OF PROOF by way of leading any sufficient evidence. Without discharging the 'ONUS OF PROOF', damages cannot be granted straightaway. Damages, indeed, require evidence regarding details of loss[es] actually suffered. Even fixed amount of damages cannot be allowed, until and unless the quantum of loss[es] actually suffered is proved through sufficient evidence. The DAMAGES/RECURRING DAMAGES', no doubt firstly to be pleaded and thereafter to be proved by leading reliable, trustworthy and cogent evidence. Reliance in this regard can be placed on the case of Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. (PLD 1969 Kar. 233), wherein it was observed as follows:--

            "... ...We are in respectful agreement with the point of view that difficulties in estimating damages should not be excused for shirking the duty of solving the problem that may be before a court and that the material which may be before the court should be scrutinized and examined for purposes of finding what relevant and sound inference can be drawn from it. This attitude is however to be accompanied with the obligation that failure of a party to produce the best evidence should be reckoned against him. Their Lordships have gone to the length of saying that every presumption should be made against such a party. In the present case we find that there is no evidence at all of the price prevailing at the time at which the alleged purchase was

made by the plaintiff-appellant, nor is there anything to indicate the condition of the market on 30th June, 1959, on which date the breach took place. Moreover, oral statement has been made without any documents to support it, which we do not consider to be the best evidence and feel justified in drawing the conclusion that adverse presumption should be made against the plaintiff-appellant. In these circum-stances, we are of the view there is no material before us to enable us to hold that the plaintiff appellant has suffered any monetary loss."

55.       For the forgoing reasons, the application for setting aside of the Ex Parte 'Judgment' and 'Decree' passed in Suit No.643 of 2007 [Murtaza Ali v. Sabir Ali Bangush] is granted. Resultantly the Ex parte 'Judgment' and 'Decree' passed on 30-4-2008 and 9-8-2008 respectively are set aside/recalled, however, with no order as to cost. Defendant, is permitted to file his written statement positively within 30 days and thereafter the suit to proceed on its own merits strictly in accordance with law.

56.       Before parting with this order I must clarify that the observations made hereinabove are 'tentative' in nature and shall not prejudice the case of either side. The Court shall proceed with the trial of the suit on merits without being prejudiced by the observations made herein above.

MH/M-125/Sindh                                                                                Application allowed.