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Civil Revision No. 30 of 1983, decided on 24th December, 1983.

‑‑O. IX, r. 13, O. XLVII, r. 1, O. XIV, r. 1 & S. 96 (2)‑Ex parse decree, setting aside of‑Remedies available to person questioning ex parte decree provided his action not restricted by limitation or conditions relative to such remedy stated.

P L D 1957 Lah. 625 and P L D 1964 Lah. 469 ref.

‑‑O. IX, r. 13. O. XLVII, r. 1, O. XIV, r. 1 & S. 96 (2)‑Ex parte decree, setting aside of‑Although remedies available to aggrieved person under different provisions of law, yet such person, held, must show clearly that his application fell within ambit of either of remedies and to allege relevant grounds and make averments within framework of such provisions of law‑Where application was moved under O. IX, r . 13. C. P. C. at subsequent stage, such applica tion held further, could not be shown as review petition under O. XLVII, r. 1 and vice versa because provisions of law are indepen dent of each other and scope of their enforcement also spread over independent and distinct angles‑In order to make believe Court to hold that application was expressly under O. XLVII, r. 1 its plead ings. to be drafted in fashion and framework of such provisions,

‑‑S. 115, O. IX, r. 13 ‑Ex parte decree, setting aside of‑Objection as to jurisdiction not raised at time of hearing of suit but raised first time in application for setting aside ex parte decree‑Decree, held, could not be set aside on plea of such objection.‑[Jurisdiction].

‑‑0. IX, r. 13 & O. X IV, r. 1‑Ex parte decree, setting aside of Objection touching validity or legal status of decree outside scope of provisions of O. 1X, r. 13, held, could not be considered When an objection alleged in application specifically and decree sought to be set aside on legal grounds or on question of fact in light of provision of O. XIV, r. 1, C. P. C. it is necessary for Court to frame issue on such objection to provide opportunity to claimant to satisfy Court as to how decree was illegal or against facts‑ Decision on such issue will be subject to condition precedent as con templated by O. II, r. 13.

---O. XLVII r. 1 & S. 115‑Review‑Objection as to jurisdiction- Remedy of review, held, is altogether independent of other remedies and Legislature introduced framework and scope of review in light of provisions of O. XLVII, r. 1‑Person aggrieved by decree or order under review could not invoke provisions on bass of discovery of new and important matter which after exercise of due diligence was not within his knowledge or could not be produced by him when decree passed or order made or on account of some mistake or error apparent on face of record or for any sufficient reason ‑Jurisdiction of Court, held. further, is always determined by allegations made in pleadings of parties.‑[Jurisdiction].

‑‑S. 115 & 0. XLVII, r. 1‑Review‑Objectien as to jurisdiction, held, could be raised in application for review if want of jurisdiction of trial Court was apparent on face of record and not otherwise. [Jurisdiction].

Ch. Muhammad Tai for Petitioner.

B. A. Sheikh for Respondent.

Date of institution : 2nd October, 1983.

This petition is directed against an order of learned Sub‑Judge, Mirpur, recorded on the 2nd of August, 1983, whereby the trial Court refused to frame an issue touching the jurisdiction of the Court for passing ex parse decree as proposed by the petitioner.

2. The petition has arisen in the circumstances that respondent filed a suit for declaration and perpetual injunction against Fazal Karim and others. In the Court of Additional Sub‑Judge, Mirpur, on 5th of August, 1976. It was averred that the suit land measuring 2 kanals was purchased by respondent from the defendant in the original suit. After purchasing the land, he spent some amount for levelling the ground, whereas the opposite party was creating difficulties for him in raising construction. On failure of Fazal Karim and others, to prosecute the defence, the learned Additional Sub‑Judge passed ex parte decree in favour of Ch. Ali Muhammad against Fazal Karim and others, on 21st of September, 1976. The Mirpur Development Authority through its Secretary, filed an application for cancellation of ex parte decree, in the Court of Sub‑Judge, Mirpur, on 3rd of November, 1982. It was averred that decree acquired by mis‑stating the particulars of the land as the same was a Plot No. 145‑A, Sector F‑2, comprising Survey No. 214 situate in village Bong. The land was acquired through an award, as such it was in ownership of the petitioner. In para. 5 of the application, it was alleged that ex parte decree being against the facts and law, was liable to be set aside. At the time of framing of the issues, it was proposed by the petitioner that an issue may be framed to the effect that the suit land having been acquired through an award, the ex parte decree was illegal for want of jurisdiction. The learned Sub‑Judge refused to frame the issue in the manner proposed by the petitioner on the ground that such an objection could only be raised in writ ten statement when ex parte decree was set aside and the suit was restored to its original number.

3. Ch. Muhammad Taj, the learned counsel for the petitioner, urged that the learned Sub‑Judge fell in error by refusing to frame issue as pro posed by the petitioner, as such his finding was misconceived. He invited the attention of the Court to Order XIV, rule 1,. C. P. C. and suggested that it was the duty of the trial Court to frame issue on each material proposi tion, affirmed by the petitioner and denied by the opposite party. It was also contended that an ex parte decree was likely to be set aside under Order XLVII, rule I, section 151 and Order IX, rule 13, C. P. C. The learned counsel tried to bring his case within the purview of Order XLVII, rule 1, C. P. C. in order to persuade this Court to hold that framing of the proposed issue was essential for disposal of the real controversy. He cited P L D 1957 Lah. 625, and P L D 1964 Lah. 469, in support of his contention.

4. Mr. B. A. Sheikh, the learned counsel for the respondent, controverted the points raised by the learned counsel for the petitioner and conten ded that the application to set aside ex parte decree was to be disposed of in the light of the provisions of Order IX, rule 13, C. P. C. It was conten ded that section 151, C. P. C. was not available to set aside the ex parts decree. Reference was made to an unreported case of the Supreme Court, titled Sajawul Khan v. Muhammad Yusuf, decided on 31st of July, 1982.

5. A person questioning the ex parts decree was clothed with various remedies to get it set aside by invoking one or more than one such reme dies provided his action was not restricted by limitation or conditions relative to such remedy. The well‑known remedies provided under the Code to set aside an ex pare decree, are :‑

(i) An application under Order IX, rule 13, C. P. C.

(ii) An appeal under section 96 (2), C. P. C.

(iii) An application under Order XLVII, rule 1, C. P. C.

(iv) A suit on the ground of misrepresentation or fraud.

An action to set aside ex parte decree was controlled by the ingredients of each remedy, named above. For instance, when an application was moved under Order IX, rule 13, C. P. C., the ex parte decree under that provision of law was likely to be set aside on completion of one of the conditions contained therein. The conditions were that the defendant applicant who sought setting aside of the ex parse decree, was under a obligation to show :‑

(a) that summons was not duly served ; or

(b) that defendant‑applicant was prevented by any sufficient cause fro appearing when the suit was called on for hearing.

The aforesaid conditions were obviously different from the conditions cons tituting the power of review under Order XLVII, Rule 1, C. P. C. Likewise, the remedy of an appeal under section 96 (2), C. P. C. was also not on equal footings to the aforesaid class of remedies. When an ex parte decree was sought to be set aside by a suit; a party seeking relief through a suit was authorised to do so only by alleging fraud or misrepresentation and not otherwise. This suggests that various remedies available to seek setting aside of the ex parte decree contained independent grounds, though in some cases, some of the grounds were common.

5‑A. It is necessary to state that despite the fact that an aggrieved person was given wide choice to seek setting aside of the ex parte decree by invoking either remedy, yet it was incumbent upon such a person to show clearly that his application fell within the ambit of either of the remedies. It was equally essential to allege relevant grounds and make averments within the framework of such provisions of law. 1n a case where application was moved under Order IX, rule 13, C. P. C., at subsequent stage, defen dant‑applicant was not free to say that application shown to have been moved under Order IX, rule 13, C. P. C., was, in fact, a review petition under Order XLVII, rule 1, C. P. C. and vice versa. This is so as both the provisions of law were independent of each other and scope of their enforcement was also spread over independent and distinct angles.

6. In the present case, the application for setting aside ex parte decree was not shown to have been moved under specific provision of law. But the of the application containing the words; DARKHWAST HAMRAH MANSOKHI DEGREE YAKTARAFA reflect that it was an application under Order IX , rule 13, C, P. C., though the grounds alleged for seeking setting aside of ex parts decree, were not expressly shown to contain the relevant essentials contemplated by rule 13 of Order IX, C. P. C. The learned Counsel for the petitioner tried to show C that his case was equally covered by Order XLVII, rule 1, C.P.C. In absence of the title and averment required for filing an application for review under Order XLVII, rule 1, C. P. C., this Court is not in a position to accept that the application, in fact, was one under Order XLVII, rule 1. Therefore, in order to make believe the Court to. hold that application was expressly under Order XLVII, rule 1, C.P.C., is pleadings were to be drafted in the fashion and framework of such provisions.

7. It was vehemently argued that the petitioner was within his right to question the jurisdiction of the Court which passed the ex parts decree, even in application for setting aside the ex parts decree. This objection is to be settled in the light of the facts of the present case. In the present case, the objection to jurisdiction was not raised at the time of hearing of the suit. It is raised for the first time in the applica tion for setting aside ex parts decree. The well‑considered view of this Court is that an objection to jurisdiction cannot be invoked in an applica tion under Order IX, rule 13, C. P. C., unless such an objection was raised in written statement of defendant‑applicant. This is so, as rule 13 pro vides that an ex parte decree shall only be set aside when the Court is satisfied by defendant‑applicant by proving that he was not duly served o that he was prevented by any sufficient cause from appearing in the Court when the suit was called on for hearing. No third ground was permitted by the rule. Therefore, in absence of permission for any other ground than those contained in the Rule, the ex parte decree cannot be set aside on the objection of want of jurisdiction. The learned Sub‑Judge was, therefore, justified to refuse framing of specific issue on the point of jurisdiction.

8. It was argued that the trial Court was not free to ignore the pro visions of Order XIV, rule 1, C. P. C. by refusing. to frame an issue on material proposition, affirmed by a party and denied by the opposite party. This objection was raised in view of para. 5 of the application wherein it was alleged that decree being illegal and against the facts, was liable to be set aside. The trial Court did frame an issue in the form of additional issue No. 2. on the basis of aforesaid proposition. This was objected to equally by Mr. B. A. Sheikh who argued that. additional issue No. 2 was unwarranted, as the petitioner could not travel beyond the provisions of rule 13 of Order IX, C. P. C. and was left with only option to show that he was not duly served or that he was prevented from appearing in the Court at the time of hearing of the suit. The contention of the learned counsel for the respondent may be correct but the fact remains that when an objection was alleged in the applica tion specifically and decree was sought to be set aside on legal grounds or on question of fact, in the light of provisions of Order XIV, rule 1, . C.P.C. it was necessary for the Court to frame an issue on such objection and to provide an opportunity to the claimant to satisfy the Court as to how the decree was illegal or against the facts, as alleged by him. But the E decision on such an issue was again subject to condition precedent, con templated by rule 13. The Court could not consider an objection touch ing the validity of legal status of decree, outside the scope of the pro visions of rule 13. In the present case, the learned Sub‑Judge who framed additional issue No. 2.appears to be conscious of the aforesaid legal principle and it is for this reason that he framed an issue to provide the petitioner an opportunity to show as to how and why the decree was illegal or against the, facts, as claimed by him.

9. An effort was made to persuade this Court that while seeking setting aside of the ex parte decree by invoking powers of review under Order XLVII, rule 1; C. P. C., the applicant was justified to raise an objection of juris diction. The remedy of review was altogether independent of other remedies. Legislature introduced the framework and scope of review in the light of provisions of rule 1. The substance of the provisions of rule 1, reflects that a person aggrieved by a decree or order under review could invoke the provisions on the basis of discovery of new and impor tant matter which, after exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error, apparent on the face of record of for any sufficient reason. The jurisdiction of the trial Court is always determined by the Allegations made in the pleadings of the parties. Thus, the point of jurisdiction rested exclusively on the substance and nature of allegations made in the pleadings by each party: This shows that objection to jurisdiction was available only at the time of trial of the suit. If an objection was raised at that stage, such an objection was equally available even at the stage when ex parte decree was sought to be set aside. An objection to jurisdiction could also be raised provided the want of jurisdiction was apparent on the face of the record. On this principle, the petitioner, in an application for review, was within his/ right to raise his objection to question the jurisdiction of the Court provided the want of jurisdiction of the trial Court was apparent on the face of the record and not otherwise. As it has already been stated that the present application was not shown to have been moved under Order XLVII, rule 1, C. P. C., it was not fair to hold that an objection to jurisdiction was available to the petitioner in the light of the aforesaid view. The case‑law cited at the bar on both sides, was not squarely applicable to the proposition under consideration, as the facts of the authorities cited by the learned counsel for the parties were distinguishable from the present case.

10. The learned Sub‑Judge was justified to frame additional issue No. 2. However, it is considered proper to reframe the issue in the light of exact language of the allegation so that parties are not misled and the ends of justice are not defeated. Therefore, this issue is recons tituted as :‑

"Whether ex parte decree was unlawful and against the facts, as such liable to be set aside O.P.P.

11. The petition is, therefore, disposed of accordingly.

M. Y. H. Order accordingly.

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