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.

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

----O.IX, R.7---Object and scope of O.IX, R.7, C.P.C,--Ex parte proceedings--

Defendant's appearance on day of adjourned hearing; assigning good cause for
previous non-appearance---Effect.

Real object of moving application under Order IX, Rule 7, C.P.C. was to set the clock
back', so that parties were relegated to position which stood on the date when ex parte
proceedings were drawn. Thus if defendant was able to show `good cause' about his
absence then trial Court would invariably reverse the action, and all effective
proceedings taken in the matter would be set aside and deemed to have been wiped off.
However, even if for any justifiable reasons ex parte order was not set aside the
defendant could always join, participate and contest the proceedings at any stage. On
appearance of defendant, right to effectively participate in all subsequent proceedings,
was automatically created. No discretion vested 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 was not, set aside. In the present 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 21-9-1889 or
thereafter could not be lawfully taken into consideration. The trial Court had clearly
laboured under mistaken view flagrantly disregarding requirements of law.
Consequently ex parte decree passed in the case was without lawful authority and of no
legal effect.

Messrs Landhi Industrial Trading Estate Ltd., Karachi v. Government of West Pakistan
through Excise and Taxation Officer `N' Division, Karachi 1970 SCMR 251; Habib
Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din PLD 1970 Lah. 428; Azizullah Khan
and others v. Arshad Hussain and others PLD 1975 Lah. 879; Collector, Quetta Sub-
Division v. Sardar Qasim Khan and others PLD 1983 Quetta 1; Khalilur Rehman
Bhutta v. Razia Naz and another 1984 CLC 890; Habib Bank Ltd. v. Kh. Muhammad
Ishaque PLD 1983 SC (AJ&K) 223; Ghulam Muhammad and others v. Mst. Irshad
Begum and others PLD 1964 (W.P.) Lah. 7821; Abdul Sattar and others v. Khuda Dad
PLD 1986 Quetta 11; PLD 1958 S C 104 and PLD 1976 S C 208 rel.

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

----O.IX, R.7---Limitation Act (IX of 1908), Preamble---Ex parte order, setting aside
of---Limitation---No time has been prescribed for seeking setting aside of ex parte
order.

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

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

----O.IX, .R. 13 & O. XX, R.4 & S.115---Ex parte judgment---Trial Court failing to
assign any reason for recording the same---Essential requirements when contravened
would warrant interference in the judgments recorded by Courts below.

Court while passing ex parte judgment should consciously apply its mind to the facts
of case and law applicable thereto. Similarly provision of Order XX, Rule 4, C.P.C.
could not be brushed aside when ex parte decision was made.

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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