Ex-Parte Decree:Remedies.

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

----S.151 & O.XI, R.13---Setting aside ex-parte decree---Petitioner filed petition under S.12(2) Civil Procedure Code, 1908 contending that the respondents fraudulently obtained ex-parte decree by mentioning incorrect address in the plaint, and that procedure for proceeding ex-parte was not followed---Nothing was available on record demonstrating that any summons/notice was served upon the petitioner and thereafter, he willfully abstained himself from participating in the said proceedings---High Court observed that petition rather amounted to an application under O.IX, R.13 of C.P.C.---Nothing would bar the Court to treat an application under O.IX, R.13 instead of S.12(2) of C.P.C. when grounds agitated were mixed either of fraud and non-service of summons as per law---Petitioner had successfully proved that he had been non-suited having no fault on his part---Constitutional petition was allowed and impugned ex-parte judgment and decree was set aside.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art.132---Cross-examination---Unrebutted statements of witnesses---Evidentiary value of---Both the witnesses were consistent on the point that the petitioner had no knowledge about the pendency of the suit---None of the petitioners was cross-examined in such respect---Such fact went un-rebutted, and the same could not be brushed aside.

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

----O.V, R.17---Process Server did not make any endeavor to trace the petitioner/defendant, he did not conduct exercise to trace whereabouts thereof and locate him, any effort, pain, diligence as required by the R.17 of the O.V, C.P.C., were non-existent, statement of Process Server was not recorded on oath and court passed the order in a mechanical manner by merely relying upon the statement of Process Server---Merely on the hyper-technical reasons to non-suit the petitioner was against the dictates of justice---Inclination of the Court was to decide the matter after hearing the parties instead of passing the orders ex-parte and without hearing them, particularly when the record is silent that petitioner intentionally avoided the proceedings.