2011 MLD 169 (PLP)

ABDUL AZIZ KUNDI, J.

Appellants Haji Inayat Khan and Haji Abdur Rehman, sons of Gulzar Khan, who were defendants in a suit for specific performance, recovery of Rs.5,36,00,000 and permanent injunction, filed by Bakht Muneer Jan and Naseeb Gul, respondents, are grieved by the judgment and order dated 5-5-2004, passed by Senior Civil Judge/Aala Illaqa Qazi, Dir Payeen' at Timergara, dismissing their application for setting aside ex parte decree, passed against them on 3-3-1998 and thus questioned the same through the instant appeal, which was originally filed on 15-11-2004 and registered as F.A.O. No.64 of 2004, but pursuant to order dated 4-8-2004, passed by a Bench of this court, registered as C.R. No.1020 of 2004 and again vide order dated 28-1-2010 re-registered as F.A.O. No.8 of 2010.

2. Facts precisely stated are that Bakht Munir Jan and Naseeb Gul, plaintiffs-respondents on 19-11-1997 sued the defendants-appellants for specific performance of an agreement dated 18-5-1994 between the parties in respect of Forest Royalty, fully detailed in the heading of the plaint; recovery of rupees five crore thirty six lac, also detailed in the heading of the plaint and permanent injunction. This suit in spite of being valued for purposes of court-fee and jurisdiction in the sum of rupee five crore thirty six lac in respect of relief "Bay", was instituted without affixing any court-fee on the plaint and Senior Civil Judge concerned without caring for that ordered its registration and issuance of summons and ultimately vide Order sheet No.8 dated 3-3-1998, proceeded ex parte against defendants-appellants and accordingly passed an ex parte decree against them without recording any evidence.

3. An application for setting aside ex parte decree aforestated was filed by defendants-appellants on 25-2-2004, where they categorically alleged that they had not been served in any manner in the suit, nor had they any knowledge of its pendency and thus their absence was never intentional and that their valuable rights are involved in the suit, which on its face was neither maintainable, nor within time and that plaintiffs-respondents while playing fraud upon the court and misrepresenting the facts obtained the decree in question at their back, the knowledge of which they got on 13-2-2004. Along with this application, an application for condonation of delay, was also filed. These applications were contested by plaintiffs-respondents vice their reply dated 17-3-2004, whereafter Senior Civil Judge/Aala Illaqa Qazi, Dir Payeen at Timergara, vide order dated 5-5-2004, without recording any evidence dismissed the same by holding it to be barred by time and not based on facts, hence this appeal. Arguments heard. Record perused.

4. As observed above, plaint in the suit was presented on 19-11-1997, where relief `Bay' as per the said plaint was valued for purpose of court-fee and jurisdiction in the sum of rupees five crore thirty six lac, but no court-fee was affixed on the plaint, nor did the court taking cognizance of the same noted it and straightaway ordered its registration and issuance of summons to the defendants-appellants for 25-11-1997, on which date it was again adjourned to 2-12-1997, because no process, as required under Order 5 C.P.C., had been issued for 25-11-1997 by the concerned staff of the court. The process issued against defendants-appellants for 2-12-1997 was not returned, thus on the said date, while repeating the same for 13-1-1998, explanation of the concerned Process Server was also called for. On 13-1-1998, the court observed that defendants had on 12-1-1998 applied for adjournment in other Case bearing No.456/1 and thus adjourned the case to 20-1-1998, on which date again it was recorded in the order sheet that defendants had a day before moved an application for adjournment and thus the case was adjourned to 11-2-1998. Pertinent to mention here that the file of the suit, which comprises of only 21 sheets, as per the index, contains no such application either moved by the defendants-appellants, nor any such summons duly served upon them or even returned unserved, but against all these facts on 11-2-1998, the order sheet shows parties present before the court and the suit was adjourned on the said date to 3-3-1998 for further proceedings, on which date learned Senior Civil Judge/Aala Illaqa Qazi, Dir Payeen at Timergara proceeded to decree said Suit No. 742/1 of 1997 as under:--

5. The record further shows that one Muhammad Shafiq (not a party to the suit) on the following day i.e. on 4.3.1998, moved an application for setting aside ex parte decree passed against him on 3-3-1998, which was registered as No.27/6 of 1998. This application was contested by plaintiffs-respondents vide their reply dated 5-5-1998, where they categorically stated that said Muhammad Shafiq has no cause of action, being not a party to the suit and ultimately their objection prevailed before the said court, who proceeded to dismiss the same vide Order sheet No.9 dated 27-2-1999, reproduced hereunder for ready reference:--

6. Appellants-defendants, as stated above, filed the present application on 25-2-2004 alleging no knowledge whatsoever of the institution of-the suit and passing of the ex parte decree against them. In their defence to this application, plaintiffs-respondents, in their reply dated 17-3-2004, pressed into service the order dated 27-2-1999, reproduced above and dismissing the application of Muhammad Shafiq aforestated. They also pressed for dismissal of the application on the ground of limitation etc: etc. Resultantly, Senior Civil Juge/Aala Illaqa Qazi, Dir Payeen at Timergara, through his impugned order dated 5-5-2004 dismissed application dated 25-2-2004 of the defendants-appellants.

7. As noted above, the record of the civil suit bearing Suit No.742/1 of 1997, contains neither a single notice issued to the defendants-appellants and returned served or unserved, nor any application by the defendants-appellants ever requesting for adjournment, thus demonstrating their knowledge of the suit. Similarly, in spite of the suit raising many disputed questions and also pertaining to recovery of huge amount in the sum of rupees five crore thirty six lac besides being for specific performance of an agreement dated 18-5-1994 and injunction as well, trial Court appears to have not even looked into the plaint on 3-3-1998 and without applying his mind much less judicial, proceeded to decree the suit ex parte.

8. Though under Order IX, Rule 6(1)(a) C.P.C., a court may pass a decree without recording of evidence if it is proved that summons was duly served, but in the instant case, as mentioned above, there is not a single paper available to show that any summons whatsoever was ever issued to defendants-appellants and returned to court duly served or unserved. The provisions of Order IX, Rule 6(1)(a) ibid were thus not attracted to the present case. Even otherwise it was not the occasion for application of the said provision because per order sheet preceding said date, case stood adjourned for further proceedings. 'It appears that the court was misled by some other cases of the defendants-appellants probably pending before it. Even, in the cases falling under Order IX, Rule 6(1)(a) ibid, the proper course particularly involving such disputes would be to record evidence and then decide the same. In the case of Provincial Government through Collector Kohat and another v. Shabir Hussain (PLD 2005 SC 337), while dealing with a case of a similar nature, the Hon'ble apex court in para-11 of the its judgment held as under: "(11) The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the learned Judicial Officers should not adopt the said course of action with their eyes completely shut to the factual, and legal aspect involved in the matter e.g. if a suit is filed seeking a decree to export Heroin from Pakistan and supposing none comes forward, for whatever reasons, to defend the said suit, then could it be legal or permissible for a Court to pass a decree granting relief which was absolutely illegal and unlawful?" (underlining is for laying emphasis). In the case of Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89), Hon'ble apex Court held as under:-- "The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads:-- " ..the Courts may proceed ex parte and pass decree without recording evidence This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further. to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence, or without recording evidence and like all discretions vested in the Courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents." (underlining` is for laying emphasis).

9. This court too while following the law laid down in the case of Provincial Government through Collector Kohat (PLD 2005 SC 337) in the case of Government of N.-W.F.P. v. Messrs Hussain Mir N. Company (2010 CLC 295), held that such a disposal of cases involving complicated questions of facts can hardly be termed to be a legal disposal and would be rather one with shut eyes, thus having no legal sanctity.

10. Instant is a case, where decree passed on its face appears to be based upon no application of mind by the court trying the suit for recovery of such a huge amount, declaration and injunction and while repeating the same illegality application for setting aside ex parte decree was also illegally dismissed through order dated 5-5-2004.

11. Though the learned counsel for the plaintiffs-respondents placed reliance on case law reported as 2005 SCMR 609, 1108, 2006 SCMR 631, 2009 SCMR 1030, 1994 CLC 516, PLD 2009 Lahore 52, 2009 CLC 759, but we are afraid that none aforesaid deals with a situation like the one involved in the present case.

12. As decision of disputes on merits is the most cherished goal of law and in the instant case not only that no decision has been made on merits, but even otherwise it can be safely held that the defendants-appellants had no knowledge of the proceedings having been launched against them and ultimately decreed ex parte. Question of limitation thus becomes irrelevant, having started from the date of knowledge i.e. 13-2-2004, as alleged by defendants-appellants per Article 164, Limitation Act, 1908 (Act IX of 1908). Such decisions by judicial forums can hardly be maintained, rather to be taken serious note of. While dealing with disputes between litigants regarding their valuable rights, courts are required to apply their judicial mind and act strictly in accordance with law by avoiding short cuts of the nature adopted in the instant case.

13. We, thus for the aforesaid reasons, are left with no alternative but to allow this appeal and' while accepting the application dated 25-2-2004, moved by defendants-appellants for setting aside the ex parte decree dated 3-3-1998, passed against them in civil Suit No.742/1 of 1997, set aside the said judgment and decree and direct the trial court to proceed with the suit from the stage when it was proceeded against defendants-appellants ex parte on 3-3-1998 and after receiving proper court-fee from the plaintiffs-respondents and written statement from the defendants-appellants decide the same strictly in accordance with law and on merits positively within a period of six months from 14-10-2010, on which date parties are directed to appear before Senior Civil Judge/Aala Illaqa Qazi, Dir Payeen at Timergara.

14. It was also pointed out by the learned counsel for the appellants that in execution of the ex parte decree, vide order dated 27-.4-2010, one of the appellants, namely, Haji Inayat Khan has been kept in civil prison, by. the executing court and not released even pursuant to the order dated 27-7-2010, passed by this court in C.M. No.449 of 2010 in the instant appeal, though surety bonds equivalent to the decretal amount were presented by said Haji Inayat Khan to the executing court, but not accepted. Since we have set aside the judgment and decree, therefore, he shall be set free forthwith, if not detained in any other case. Office is directed to immediately send record of the case along with copy of this judgment to Senior Civil Judge/Aala Illaqa Qazi, Dir Payeen at Timergara for necessary action. F.A.O. allowed. S.A.K./305/P. Appeal accepted.