PLJ 2004 SC (AJ&K) 183

[Appellate Jurisdiction]

Present: muhammad yunus surakhvi, C. J. and khawaja muhammad saeed, J.

KAFAIT ALI-Appellant

versus

MUHAMMAD HANIF-Respondent C.A. No. 42 of 2003, decided on 30.4.2004.

(On appeal from the Order of the High Court dated 15.3.2003 in Civil Revision No. 2 of 2003).

(i) Civil Procedure Code, 1908 (V of 1908)--

—-O. IX, R. 6(1) and 13, S 96-Cancellation of gift-Suit for-Exparte passed in--Challenge to--Decree set aside by trial Court-Revision against--Dismissal of-Appeal accepted-Held : Under O.IX, Rule 6(1) C.P.C. guidance has been provided to Courts to pass exparte against a defendant who does not appear on date of hearing-Failure of defendant/respondent to appear on date of hearing was fatal to interest-He moved an application with a considerable delay without furnishing any explanation regarding delay and without furnishing any good cause for his non-appearance on date of hearing-Trial Court has no jurisdiction to vacate ex parte order-Similarly impugned order passed by High Court is set

t

aside-However respondent shall be at liberty to appear in further proceedings taken in suit-Appeal accepted. [Pp. 187 & 188] A, B, D, F & G

PLD 1992 Azad J&K, distingui$hed.
(ii) Words and Phrases
'—Sufficient grounds-Interpretation of-Term sufficient ground has been
interpreted by Court as one which was beyond control of a party-
Challenge to-Defendant/respondent moved application for setting aside
ex-parte order containing ground that he had no knowledge of suit against
him whereas High Court observed that ground was against true tacts-
Held : In civil matters, a negligent and indolent party cannot claim any
relief as a matter of right from Court by misstating true facts-Appeal
accepted. [Pp. 187 & 188] C & E

Ch. Muhammad Azam Khan, Advocate for Appellant.

Mr. Muhammad Siddique Chaudhry, Advocate for Respondent.

Date of hearing: 28.4.2004.

judgment

Khawaja Muhammad Saeed, J.--This appeal, with the leave t'f the Court, is directed against the judgment of the High Court dated, 15.3.2003.

2. The facts relevant for the decision of this appeal, briefly stated, are that the plaintiff-appellant brought a suit in the Court of Civil Judge, Mirpur, on 9.10.1999 seeking cancellation of gift-deed dated 14.10.1992 .executed by him in favour of respondent. During the pendency of the suit, the defendant-respondent appeared through his son on 24.11.1999 who disclosed himself as attorney of the respondent. He was supplied a copy of the plaint and directed by the trial Court to file his written statement on 28.12.1999. On 28.12.1999, the Advocate for the plaintiff-appellant appeared in the Court whereas the son of the defendant-respondent requested for an adjournment to file written statement. The request was allowed and the case was adjourned for filing written statement to 27.1.2000. On 27.1.2000 once again the counsel for the plaintiff-appellant appeared and on behalf of contesting respondent his son appeared and requested for an adjournment for filing written statement. The same was allowed to him and the case was posted for written statement to 6.3.2000. On 6.3.2000 once again on the request of son of the defendant-respondent, an adjournment for filing written statement was granted and for this purpose 8.4.2000 was fixed as next date of hearing. On 8.4.2000, the defendant-respondent himself appeared in the Court. He requested for an adjournment to file the written statement. Adjournment was allowed by the trial Court and the case for this purpose was fixed for 11.5.2000. On 11.5.2000 when the case was called for hearing, the counsel appeared on behalf of the plaintiff-appellant and this

time nobody appeared for the defendant-respondent. As such ex-parte order was passed against him and the case was posted for recording ex-parte evidence of the plaintiff-appellant to 17.6.2000. On 17.6.2000, the plaintiff-appellant requested for an adjournment to produce evidence. His request was allowed and the case for this purpose was fixed for 17.7.2000. On 17.7.2000, the defendant-respondent appeared in the Court as such ex-parte evidence of the plaintiff-appellant could not be recorded. He prayed for an adjournment as he wanted to submit an application for setting aside the ex-parte order. On 24.8.2000, which was the next date of hearing, the defendant-respondent moved an application for the vacation of ex-parte order. In the application the defendant-respondent pleaded that he is defendant in the case. His valuable rights are involved in the suit but he has been proceeded against ex-parte. According to him, service has not been .effected upon him. He being a businessman, most of the time, remains in Pakistan. He was not in the knowledge of the suit, therefore, it is the demand of the natural justice that he be provided with an opportunity of hearing so that litigation be come to an end between the parties in accordance with rule of law and justice. On this application objections were invited from the plaintiff-defendant. This application was subjudice before the trial Court when on 9.2.2002 the defendant-respondent once again did not appear before the Court, as such, the aforesaid application was dismissed for want of prosecution. Subsequently, the respondent filed another application for the vacation of ex-parte proceedings in which once again the same grounds were submitted that he did not receive notice of the suit of the plaintiff-appellant against him. This application was allowed by the trial Court by placing reliance on a judgment of the High Court reported as Superintending Engineer, Electricity, Mirpur, and another v. Kashmir Steel Mills, Mirpur and another [PLD 1992 Azad J&K 7) subject to payment of Rs. 500/- as cost vide order dated 20.12.2002. However, a revision was filed in the High Court on 14.1.2003 against the aforesaid order. This revision petition was dismissed vide the judgment under challenge. However, the respondent was declared in the judgment most careless and negligent person. The cost awarded to the plaintiff-appellant was considered not reasonable and the same was enhanced from Rs. 500/- to Rs. 2000/-.

3. Ch. Muhammad Azam Khan, the learned counsel for the •appellant, has argued that defendant-respondent failed Lo appear in the trial Court on 11.5.2000 as such the Court had no option but to pass an ex-parte order against, him. He moved an application for setting aside the ex-parte order on the grounds which were factually incorrect. That application remained subjudice before the trial Court for some Lime and finally on 9.1.2002 the same was also dismissed for non-prosecution. After expiiy of limitation, the defendant-respondent moved another application for setting aside the ex-parte order in which he conceded this fact tiiat some application moved by him in past was dismissed for non-prosecution by the trial Court. Without taking into consideration the facts of the case, the judgment of the High Court was wrongly applied and ex-parte order was set asideby the trail 186

Court. The learned Judge in the High Court also failed to appreciate that ex-parte order recorded against a party which despite service fails to appear in the Court on the date of hearing or order of dismissal of any civil cause for non-appearance of a party can be restored only if "sufficient cause" is disclosed for such non-appearance. Such orders are not passed in routine as has been done in the present case. He further submitted that the defendant-respondent in this case appeared through his son to whom five adjournments were granted on his request by the trial Court for filing written statement on behalf of the defendant-respondent. Even the defendant-respondent personally appeared before the trial Court on 18.4.2000 and was asked to file written statement but he sought an adjournment which was allowed to him and he was directed to file the same on 11.5.2000. On this date he absented himself, as such an ex-parte order was passed. His right of defence was closed and the plaintiff-appellant was directed to lead his evidence. After three months and some 13 days he moved an application for setting aside ex-parte order on 24.8.2000 on the grounds which were totally false. The trial Court dismissed his application. He filed a revision petition in the High Court against the order dated 11.5.2000 whereby he was proceeded ex-parte by the rial Court. A learned Judge in the High Court dismissed his revision petition and observed that he should have .moved the application for setting aside the ex-parte before the trial Court. In the light of this observation, he filed an application on 19.10.2002, after consuming a lot of time before the trial Court for setting aside the ex-parte order against him. In that application no date was mentioned by him that when ex-parte order was passed against him because he was conscious of the fact that this application had become hopelessly time-barred. The learned counsel has referred to the judgment of the High Court reported as Superintending Engineer, Electricity, Mirpur, and another v. Kashmir Steel Mills, Mirpur and another [PLD 1992 Azad J&K 7) and contended that in that case ex-parte. order was passed against one of the official defendants whereas service had not been effected on other official defendants and, therefore, the High Court allowed the application of such defendants to file written statement alongwith other defendants. That case, according to the learned counsel, has got distinguishable facts and the principle laid down in that case, therefore, was not applicable to the present case.

4. On the other hand, Mr. Muhammad Siddique Chaudhry, the learned counsel for the defendant-respondent, argued that his client is a veiy busy businessman. On account of the affairs relating to business he has to spend a considerable period in Pakistan. Due to this reason his client failed to appear in trial Court when the case was called for hearing. He honestly narrated that fact in his application moved for setting aside ex-parte order. According to him, inadvertently it was mentioned by his client that he had •no knowledge of the case against him. He further argued that the son of the defendant-respondent appeared in the Court on his behalf while respondent was away in Pakistan in connection with the affairs of his business. His son was not his attorney, therefore, his presence was wrongly recorded as

attorney of the respondent. No such power of attorney is available on the record. However, he admitted presence of the defendant-respondent before the trial Court on 8.4.2000 but submitted that on account of compelling circumstances his client failed to appear on 11.5.2000 in order to file his written statement. He further submitted that as valuable rights of his client are involved in this case, therefore the order passed by the trial Court and maintained by the High Court is in accordance with law. He craved that this appeal be dismissed in order to meet the ends of justice.

5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The rule contained in Order IX, C.P.C., refers to the procedure which shall apply in case either of the parties does not appear on the date fixed for hearing of a civil lis particularly before the Court of law. Under Order IX, Rule 6(1), C.P.C., guidance has been provided to the Courts to pass orders if the plaintiff appears and defendant does not appear despite service to proceed ex-parte against such a defendant. On 11.5.2000 the defendant-respondent was required to file written statement. Therefore, this was a date of hearing a even on the same date, the Court after receiving the written statement from him could have even framed the issues in the light of the pleadings of the parties. Failure of the defendant-respondent to appear on the date of hearing was fatal to his interest. The trial Court, therefore, was justified in recording ex-parte order against him. As a rightly pointed out by the learned counsel for the plaintiff-appellant an ex-parte order cannot be vacated in routine. Thirty days time has been provided to the parties to move an application for setting aside ex-parte order containing "sufficient grounds" and the term "sufficient grounds" has been interpreted by the Court as one which was beyond the control of a party. The defendant-respondent moved an application for setting aside the ex-parte order containing the ground that he had no knowledge of the suit against him, whereas, as rightly observed by the High Court, the ground taken by the defendant-respondent was against the true facts. The authority which was relied upon by the learned counsel for the respondent before the trial Court as well as before the High Court and this Court has got distinguishable facts. In that case ex-parte order was not recorded against any defendant in the regular suit. The facts of that case have been mentioned in paragraph 7 as follows:-

"7. In present case, the summons was shown to have been served on the Executive Engineer (Electricity), Mirpur, Petitioner No. 2, and not on Superintending Engineer (Electricity), Muzaffarabad and the Chief Secretary who represented the Government. The proceedings preceding to the order of August 25, 1991 reflect that Defendants Nos. 1 and 3 were still being summoned for their appearance in the Court and by the time, they were not duly served. In this view of the matter, ex-parte proceedings against Defendants Nos. 1 and 3 were patently unwarranted, as such illegal' The conclusion was recorded in paragraph 13 which is as follows:--

"13. The suit was at the stage of filing of objections to the miscellaneous application and defendants were not asked to file the written statement at that stage. Despite the fact that ex-parte proceedings were ordered against the defendants on August 25, 1991, they could joint the proceedings on August 29, 1991 and present their written statement for the progress of the suit. It appears that neither the learned District Judge nor the learned counsel for the parties cared to appreciate the situation of the proceedings under consideration and unnecessarily indulged into ancillary proceedings resulting in present petition."

In that case, as is mentioned in paragraph 7, the suit was at the stage of filing objections to the miscellaneous application and so far defendants were not directed to file their written statement as some official defendants were still to be summoned. Therefore, the High Court keeping in view the distinguishable facts of that case rightly set aside the ex-parte order and allowed even the defendant to file written statement against whom ex-parte order was passed. Under Code of Civil Procedure the defendant without getting ex-parte order set aside can join proceedings onwards by appearing in the civil disputes on the date fixed in the case. If he wants that some previous order whereby he was proceeded ex-parte must be recalled, then he has to satisfy the Court that on account of some "good cause" he failed to appear before the Court on such date of hearing. In this case impliedly the defence of the defendant-respondent was closed by the trial Court on 11.5.2000 and the plaintiff-appellant was directed to produce ex-parte evidence in the case. He moved an application for vacation of ex-parte order after three months and 13 days without furnishing any explanation regarding this inordinate delay and without furnishing any 'good cause¹ for his non-appearance on 11.5.2000 a date fixed by the Court for receiving the written statement from him. The subsequent application was also moved after a considerable delay. In the light of these facts, there was no justification for the trial Court to vacate ex-parte order and provide him a chance to file written statement. In civil matters, a negligent arid indolent .party cannot claim any relief as of right from the Court by misstating true facts as was done in the present case by the defendant-respondent.

Therefore, the impugned order passed by the High Court on 115.3.2003 and the order passed by the trial Court on 20.12.2002 are set aside. ^However, the defendant-respondent shall be at liberty to appear before the trial Court either in person or through his attorney or counsel to cross-examine the witnesses of the appellant and take part in further proceedings taken in the suit in accordance with law

(F.M.' Appeal accepted.