P L D 1986 Peshawar 121


Before Inayat Elahi Khan, .J






Mst. MAROOF JAN AND 2 OTHERS‑Respondents


Revision Petition No. 9 of 1986, decided on 19th March, 1986.



Ghulam Mustafa Awan for Petitioner.


Muhammad Yunis Tanoli for Respondents.


Date of bearing: 19th March, 1986.




The suit giving rise to this revision was instituted by Mo. Maroof Jan and others against the State Life Insurance Corporation of Pakistan wherein, one Muhammad Ashraf, Executive Officer of the State Life Insurance Corporation appeared before the trial Court on 5‑6‑1985 and the case was adjourned to 12‑6‑1985 for filing the written statement. On 12‑6‑1985 none appeared on behalf of the defendants and, therefore, they were placed ex parte and the case adjourned to 29‑6‑1985 for ex parte evidence, The case was again adjourned to 10‑7‑1985 for recording the ex parte evidence of the plaintiffs. On this date the aforesaid Muhammad Ashraf representative of the defendants submitted an application for setting aside ex parte proceedings on the ground that on the earlier date i.e. 12‑6‑1985, be arrived late in the Court after the case had been adjourned to 29‑6‑1985. According to him, he also came to the Court on 29‑6‑1985 but found that (he case had already been adjourned to 10‑7‑1985. He again attended the Court on 10‑7‑1985 and came to know that the defen dants had been placed ex parte by the Court on 12‑6‑1985. This applica tion for setting aside the ex parte proceedings was vehemently resisted by the plaintiffs with the result that it was dismissed on 6‑10‑1985 mainly for the reason that the said Muhammad Ashraf was not duly authorised by the defendants to move the application. Three days later i.e. on 9‑10‑1985 another application for the same purpose was submitted by the defendant through their counsel but it was also dismissed on 8‑1‑1986 on the ground that it was barred by limitation. This finding is obviously erroneous as there is no specific Article in the Limitation Act governing an application for setting aside ex parse proceedings and the learned trial Court appears have been under the impression that Article 164 of the Limitation Act applied to the case. The said Article applies only when an ex parse decree had been passed which is not the case here. It may, also be mentioned that Muhammad Ashraf when applied for setting aside the ex parte proceedings also produced in Court an authority letter issued by the Zonal Head of the State Life Insurance Corporation of Pakistan, Peshawar Zone, which mentions that he was authorised to appear, to file reply statement, engage counsel and to negotiate/compromise, etc. and to receive deposit any money if so directed by the Court on their behalf. This authority letter was not relied upon by the trial Court on the ground that no specific authority was given to him to apply for setting aside the ex parte proceedings. From the contents of the authority letter, however, it appears that he was given all the necessary powers with regard to the conduct of proceedings in the Court and even if such power was not specifically mentioned in the letter, he being an Executive Officer of the Company was its recognized agent and under the provisions of Order III, rules 1 and 2, C. P. C. could appear, act and .submit applications in. the proceedings on behalf of the Company. As mentioned above, the application moved by Muhammad Ashraf on 10‑7‑1985 for setting aside ex parte order, dated 12‑6‑1985 also showed good cause for the absence a required by Order IX. rule 7, C. P. C. and the application was eels supported by an affidavit. The entire scheme of the Code is that no on is to be deprived of his right of hearing and representation before the Court unless of course the penalties provided in the Code are attracted. The provisions of Order IX, rule 7 are not of penal nature and in the circumstances of the case, the refusal to allow the defendants to join the proceedings and file the written statement amounts to refusal to give the reasonable opportunity to defend themselves, particularly when no ex parte evidence of the plaintiff had yet been recorded. The circumstances of the case also show that the defendants have been taking part in the proceedings with due diligence and the argument of the learned counsel for the respondents that they had been negligent in conducting the case carries no force. In this view of the matter, the revision stands accepted and by setting aside the impugned order of the trial Court, the application of the defendants for setting aside the ex parte proceedings is accepted. The defendants shall be given opportunity to file written statement in the case. No order as to costs.


M. Y. H. Petition accepted.


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