1. Through instant civil revision under Section 115 CPC, the petitioners have called into question the legality and validity of impugned judgment dated 26.09.2009 (copy of decree not appended) passed by the learned Civil Judge, Pind Dadan Khan whereby the application of the petitioners for setting aside the ex parte judgment and decree dated 22.07.2005 in Civil Suit No.180 instituted on 22.10.2003 titled “Allah Ditta etc. v. Fateh Muhamamd etc.” was dismissed and impugned judgment and decree dated 24.06.2010 passed by learned Additional District Judge, Pind Dadan Khan whereby appeal against the judgment of learned Civil Judge, Pind Dadan Khan filed by the petitioners was also dismissed.
2. Vide order dated 11.12.2015, the respondents were proceeded against ex-parte.
3. Briefly stated the facts of the case are that petitioner (Fateh Muhammad) filed an application under Section 12(2) CPC for setting aside the judgment and decree in Civil Suit No.180 instituted on 22.07.2005 titled “Allah Ditta etc. v. Fateh Muhamamd etc.” alleging that respondents have obtained the said decree through fraud and mis-representation. The respondents contested the said application through written reply. Out of the divergent pleadings of the parties following issues were framed:
i). Whether the application does not lie legally? OPR
ii). Whether the petitioner has not filed this application according to law? OPR
iii). Whether the petitioners know about the suit and they should have filed appeal against the decree? OPR
iv). Whether the petitioners have not come to the court with clean hands? OPR
v). Whether the application has been filed just to delay and deprive the respondents from their legal share? OPR
vi). Whether the petitioners have filed this petition just to harass the respondents and they are entitled to special costs? OPR
vii). Whether the petitioners have no locus standi and application is based on malafide? OPR
viii). Whether the ex parte decree dated 22.07.2005 titled Allah Ditta etc. v. Fateh Muhamamd etc. is liable to be set aside? OPP
The application of the petitioners was dismissed and the right to produce evidence of the petitioners was closed by learned Civil Judge, Pind Dadan Khan vide impugned judgment dated 26.09.2009. The petitioners being aggrieved from the said judgment filed an appeal which was also dismissed by learned Additional District Judge, Pind Dadan Khan vide impugned judgment and decree dated 26.06.2010. Hence, this civil revision.
4. It is contended by learned counsel for the petitioners that neither the petitioners appeared in the Court nor their witnesses, therefore, the suit can be dismissed in default only and their right to produce evidence could not have been closed under Rule 3 Order XVII CPC as said Rule presupposes the presence of party before the court. He relied upon case law reported as “Ahlian Moori Payeen through representative and others v. Ghulam Muhammad and 7 others” (2010 CLC 902). He further contends that the learned trial court has wrongly applied provision of Order XVII rule 3 CPC while closing the evidence of the petitioners as on 14.04.2009 the evidence of the petitioners was present and on the said date the case adjourned as the counsel of respondents was not in attendance before the court.
5. I have heard the learned counsel for the petitioners and have gone through the record with his able assistance.
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