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1991 M L D 261

 

[Quetta]

 

Before Munawar Ahmed Mirza, J

 

RAZA MUHAMMAD and 2 others–Petitioners.

 

versus

 

JUMMA KHAN and 2 others–Respondents.

 

Civil Revisions Nos. 199 and 203 of 1990, decided on 15th November,1990.

 

 

Basharatullah for Petitioners.

 

Mohammad Aslam Chishty for Respondents.

 

Date of hearing: 12th November, 1990.

 

JUDGMENT

 

Civil Revisions Nos. 199 and 203 of 1990 involve determination of identical legal and factual aspects therefore same are being decided by common judgment.

 

2. Facts briefly stated are, that respondents towards year 1983 purchased agricultural land in Deh Sohbatpur, Tehsil Jhat-Pat District Nasirabad from Ejaz Ahmed Gola which was recorded in their favour through Mutation No. 244 Khatta No. 23 dated 10-3-1984 and Mutation No. 263 Khata No. 26 dated 28-6-1986. It is the case of petitioners that suit land was throughout irrigated by the previous owners from watercourse No. 36-L Ex-Uch Rajwah hereinafter called “Disputed Water course”. Plaintiffs/respondents thus prayed for declaration about their entitlement too irrigate lands from Water-Course No. 36 L Ex-Uch Rajwah and injunction for restraining petitioners (defendants) from interfering with the same. The claim of respondents was seriously contested by petitioners who thus filed detailed written statements in both the suits. It may be seen, that during pendency of the proceedings petitioners absented from the Court on 18-6-1989 whereupon ex parte proceedings were ordered against them. Matter was postponed for ex parte evidence when in the mean time on or about 21-9-1989 an application for setting aside ex parte order was submitted by petitioners. Incidentally on the same date affidavits of witnesses by way of ex parte evidence were also filed before trial Court by plaintiffs/respondents. Subsequently on. 28-9-1989 respondents filed rejoinder to the application for setting aside ex parte-order. However, learned Civil Judge Dera Allah Yar, on 30-9-1989 through vernacular order dismissed application for setting aside ex parte order, but by means of separate judgment granted ex parte decree in favour of plaintiffs/respondents. Later petitioners submitted an application under Order 9, Role 13 read with section 151, C.P.C. for setting aside ex parte decree, which was equally opposed by respondents. Learned trial Court eventually rejected said application vide order dated 29-11-1989. Petitioners preferred separate Appeals Nos. 16 and 17 of 1989 before District Judge Nasirabad at Dera Allah Yar under Order 43, Rule 1, C.P.C., challenging above ex parte decrees and subsequent orders declining to set aside the same. These appeals were also dismissed by learned Additional District Usta Muhammad on 26-6-1990. Present petitions are now directed against judgments/orders and decrees of both the Courts below:

 

Basic argument of learned counsel for petitioners revolves around entitlement to participate in the proceedings despite ex parte order till adjudication of matter by the trial Court. Evidently petitioners after ex parte order dated 18-6-1989 joined the proceedings on 21-9-1989. Record reflects that during said period absolutely no progress was made in the case. Affidavits of witnesses for ex parte proof were filed only on 21-9-1989. Therefore, question arises whether Court could legitimately award ex parte decree without entertaining right of petitioners to participate in proceedings or denying facility to cross-examine the witnesses whose affidavits were filed.

 

It is well-settled that real object of moving application under Order 9, Rule 7 C.P.C. is to `set the clock back’, so that parties are relegated to position Which stood on the date when ex parte proceedings were drawn. Thus, if I defendant is able to show `good cause’ about his absence then trial Court would invariably reverse the action, and all effective proceedings taken in the matter shall be set aside and deemed to have been wiped off. However, even if for any justifiable reasons ex parte order is not set aside the defendant can always join participate and contest the proceedings at any stage. This view is supported by observations in the following reported judgments:–

 

(i) M/s: Landhi Industrial Trading Estate Ltd. Karachi v. Government of West Pakistan through Excise and Taxation Officer `N’ Division, Karachi (1970 SCMR 251).

 

” In any case, the trial: Court was clearly wrong in not permitting the defendant’s counsel to participate in the proceedings on the 24th of November, 1964, when he entered appearance on its behalf and wanted to argue the case on the preliminary issue of the maintainability of the suit. Rules of Procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities. We agree with the High Court that the ex parte decree was rightly set aside in this case and that the suit has been properly revived for final decision according to law.”

 

(ii) Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din PLD.1970 Lah. 428.

 

“Applying the said principles to the facts and circumstances of the present case, it would be seen that by the time the tenant appeared in the Court on 13-10-1964, the landlord had not yet closed his case and he was still in the process of making his own statement. After the landlord had closed his case, was to arrive the stage, when the tenant was to lead his evidence: At that stage, the tenant was physically present in Court. There was thus, no justification to disallow the tenant from leading his evidence in the cast or making his own statement. The learned Rent Controller acted without lawful authority in proceeding in the manner indicated in the earlier paragraphs of this judgment and a finding can clearly be recorded that the tenant, in the circumstances hereinbefore explained was not given a reasonable opportunity to defend and conduct his case.”

 

(iii) Azizuilah Khan and others v. Arshad Hussain and others PLD 1975 Lah. 879.

 

“According to law the ex parte order against the defendants did not mean that they could not participate in the further proceedings of the case. They could not be considered to be dead in relation to the future proceedings. A party cannot be stopped from participating in the proceedings simply because of its non-appearance on the first or some adjourned hearings. A party proceeded against ex parte may apply under rule 7 of Order IX, for setting aside the ex parte order and if the learned Trial Court is satisfied that good cause has been shown then the ex parte order may be set aside. Even if no such application is made and no good cause is shown for setting aside the ex parte order that does not mean that the defendant proceeded against ex parte is debarred from appearing and participating in the further proceedings. All that the provision as contained in rule 7 of Order IX requires is that in case of good cause having been shown the ex parte order may be set aside but there is no provision whereby an absentee defendant cannot appear and participate in the adjourned proceedings. The whole scheme of the Code provides for substantial justice to be done after giving full opportunity to the parties to the suit.”

 

(iv) Collector, Quetta Sub-Division v: Sardar Qasim Khan and others PLD 1983 Quetta 1.

 

“When it goes back to Order 9 it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same sense as it did or could have done, if one or the other of the party had not appeared at the first hearing, that is to say, the right to proceed-ex parte is right which accrued from day to day because at each hearing the Court is thrown back to Order 9, Rule 6, C.P.C., Therefore if a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. It is now too late in the day to contend that mere absence of a certain date makes him ex pare for the rest of the trial and this extreme view is opposed to preponderance of authorities.”

 

(v) Khalilur Rehman Bhutta v. Razia Naz and another 1984 CLC 890.

 

“The petitioner’s application for setting aside the order, dated 28th February, 1983, was accompanied by his duly sworn affidavit. Even if the application was not signed by him, that was merely an irregularity which could be cured by obtaining his signatures thereon. It could not have been rejected on this score. In this view of the matter, the order, dated 6th June, 1983 cannot be sustained, but its removal will not serve any useful purpose, for, in view of my earlier observation, the petitioner has lost his right to file the written statement. However, he has every right to participate in the ex parte proceedings, at any stage and. cross-examine the respondent’s witnesses even without getting the order, dated 28th February, 1983 set aside. This right as argued by his learned counsel was denied to him. In this respect as well the learned Family Court acted illegally. The petitioner should have been permitted to test the veracity of the respondent’s ex parte evidence through cross-examination; without affording him this right, the ex parte evidence cannot be used against the petitioner. The judgment and decree, dated 4th July, 1983 are, therefore, liable to be quashed.”

 

(vi) Habib Bank Ltd. v. Kh: Muhammad Ishaque PLD 1983 SC (AJ&K) 223.

 

“14. It is also to be noted that -when the defendant files a written statement, but does not appear on the date fixed for the hearing and in consequence ex parte proceedings are ordered against him, he cannot be precluded from appearing at a later stage of the suit while it is still pending; and he should be allowed to come in at the stage to which the suit has reached. So, was held in Ghulam Muhammad and others v. Mst. Irshad Begum and others PLD 1964 (W.P.) Lah. 7821.

 

Therefore, even if the ex parte proceedings remain intact the appellants -defendants can join the proceedings and we cannot subscribe to the argument of Mr. B. A. Farooqi that even for joining the proceedings in presence of the ex parte order sufficient cause for absence is to be established.”

 

(vii) Abdul Sattar and others v. Khuda Dad PLD 1986 Quetta 11.

 

11. The matter does not end here. It is clear as demonstrated above that the proceedings taken by the Qazi after 7-3-1984 was opposed to the mandatory provisions of law and offends against the principle of natural justice and is a nullity in the law. The application moved by the plaintiffs and pressed by the counsel was based on a mistaken view of the law. Defendant if not appearing on a day fixed for his appearance cannot be precluded from appearing at all if he does not show good cause. Mere absence on a certain date does not make defendant ex-parte for rest of trial and the hands of the Court are not tried if so-called ex parte order is not set aside:’

 

Thus, from the ratio of aforequoted judgments, it is abundantly clear, that on appearance of defendant, right to effectively participate in all subsequent proceedings, is automatically created. No discretion vests in the trial Court to deny the same. Evidently after appearance defendant would not be deemed ex parte for the rest of trial even if, for any reason ex parte order is not set aside. It may be seen that in the instant case affidavits of witnesses were submitted on 21-9-1989. Petitioner was factually present in the Court on 21-9-1989 and had participated in the proceedings. Therefore, without providing opportunity for cross-examination, evidence produced on 21-9-1989 or thereafter could not be lawfully taken into consideration. The trial Court has clearly laboured under mistaken view flagrantly disregarding requirements of law. Consequently ex parte decree passed in the case is without lawful authority and of no legal effect on the principle enunciated in (i) P L D 1958 Supreme Court 104 and (ii) P L D 1976 Supreme Court 208.

 

Mr. Muhammad Aslam Chishti learned counsel for respondents then attempted to argue that application for setting aside ex parte order, having been filed after almost 8 months therefore was barred by time. The contention is apparently fallacious because no time has been prescribed for seeking setting aside of ex parte order. For authority reference can be had to the observations in following cases:-

 

(i) Syed Nazir Hussain Shah v. Allah Ditta 1973 -SCMR 103; (ii) K.S. Abdul Latif v. The Republic of Pakistan and others PLD 1971 Quetta 77 and (iii) Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678.

 

Additionally trial Court in recording ex parte judgment has not assigned any reasons. It is well settled that Courts even while passing ex parte judgment should consciously apply their mind to the facts of case and law applicable thereto. Similarly provision of Order 20, Rule 4, Cr.P.C. cannot be brushed aside when ex parte decision is made. Obviously above-noted essential requirements have been contravened thus warranting interference in the impugned judgments.

 

For the above reasons, I am inclined to accept the petition, set aside impugned judgments, orders and decrees of both the Courts below, and resultantly case is sent back to the trial Court for decision on merits.

 

Parties are however left to bear their own costs.

 

A.A./362/Q Revision accepted:

 

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