Improper Service of Notice invalidated the Ex Parte Decree --- Lahore High Court Upholds Order for Revival of Suit for Substantial Justice
Islamabad 27-12-2024: The Lahore High Court, Multan Bench, dismissed a Writ Petition challenging the orders of the Civil Judge and Additional District Judge, Shujabad, which revived a suit previously decided through an ex parte decree. The judgment, delivered by Mr. Justice Muzamil Akhtar Shabir, emphasized the primacy of substantive Justice over procedural technicalities and upheld the decisions of the lower Courts to allow a fair contest on merits.
The case stemmed from a suit filed by the predecessor-in-interest of the petitioners, seeking the cancellation of a property mutation and recovery of gold ornaments against the respondent. The suit was decided ex parte after the respondent failed to appear, allegedly due to improper service of notice. The respondent later filed an application to set aside the ex parte decree, citing lack of knowledge and an incomplete address used for service.
The application, filed after a significant delay, was accepted by the trial Court, reviving the suit. The petitioners challenged this decision, arguing that the delay in filing the application had not been properly condoned.
Mr. Justice Muzamil Akhtar Shabir observed that procedural irregularities, such as the non-explicit decision on the application for condonation of delay under Section 5 of the Limitation Act, 1908, did not justify overturning the lower Courts’ orders.
The Court also highlighted the importance of fair hearing, noting that the improper service of notice invalidated the ex parte decree. Justice Shabir cited the Supreme Court of Pakistan decision in Tehsil Nazim TMA, Okara Vs. Abbas Ali (2010 SCMR 1437), which emphasized that parties should not be condemned unheard.
Addressing the petitioners’ concerns, the Court stated that reviving the suit would not cause undue prejudice to their rights. Instead, it would enable both parties to contest the case on merits. Mr. Justice Muzamil Akhtar Shabir reiterated that constitutional jurisdiction should only be invoked to rectify procedural lapses if substantial injustice is demonstrated.
The Lahore High Court dismissed the petition, affirming the concurrent decisions of the lower Courts. Mr. Justice Muzamil Akhtar Shabir concluded that the delay in filing the application to set aside the ex parte decree had been impliedly condoned, and the revival of the suit ensured Justice for all parties involved.
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