2013 PLP 914 (YLR)

ABDUS SATTAR ASGHAR, J.

This first appeal under Order XLIII, Rule 1(e) of the Code of Civil Procedure 1908 is directed against order dated 21-5-2011 passed by learned Additional District Judge Gujranwala whereby appellants' application under Order IX, Rule 13 read with section 12(2) of C.P.C. was dismissed.

2. It is argued by learned counsel for the appellant that the impugned order is against law and facts without application of judicious mind; that learned trial Court has failed to appreciate that appellant had appointed his special attorney to appear before the Court to answer the question if any and that there was no reason to disbelieve the appellant's counsel with regard to appellant's signatures; that special attorney as well as learned counsel for the appellant categorically stated before the learned trial Court that appellant could not appear in person apprehending danger to his life having been involved in various false F.I.Rs.; that the impugned order being untenable in law is liable to set aside.

3. It is resisted by learned counsel for the respondent with the contentions that the impugned order is in accordance with law and based on salutary appreciation of the material available on record; that the findings of the learned court below not suffering from any legal infirmity or perversity do not call for interference by this Court, therefore, this appeal be dismissed.

4. I have given patient hearing to learned counsel for the parties and gone through the record.

5. Perusal of the record transpires that Sh. Muhammad Mushtaq respon-dent filed a suit for recovery under Order XXXVII of the Code of Civil Procedure 1908 against Sh. Muhammad Ijaz appellant. The appellant did not appear before the learned trial Court despite summons and proclamation in the newspaper, therefore, he was proceeded against ex parte vide order dated 18-9-2010 and the suit was decreed against him vide judgment and decree dated 8-12-2010. An application under Order IX Rule 13 read with section 12(2), C.P.C. was lodged on 9-10-2011 on behalf of the appellant alleging that no summons was served upon him as his address was wrongly mentioned in the suit with mala fide intention by the respondent. The said application was resisted by the respondent with the contentions that appellant was a proclaimed offender in criminal cases and that signatures on the application under Order IX, Rule 13 read with section 12(2), C.P.C. and attached affidavit were forged and fictitious. On facts it was contended that ex parte proceedings and ex parte judgment and decree were lawfully passed against the appellant. Respondent also lodged an application before the learned trial Court seeking summoning of the appellant before the Court in person to verify his signatures on the application. Vide order dated 10-3-2011, learned trial Court directed the appellant to appear before the Court in person on 15-3-2011. On the said date i.e. 15-3-2011, learned counsel for the appellant made statement before the learned trial Court that the appellant had affixed signatures in his presence and thereafter he filed the petition and that he was not in a position to produce the appellant in the Court as the appellant was required in some criminal cases. The respondent maintained his objection that the petition was not signed by the appellant, therefore, appellant was given another opportunity to appear before the Court in person on 26-3-2011 with a caution that in case he fails to appear in person it will be presumed that petition has not been filed by him and an appropriate order will be passed in accordance with law. After obtaining a number of adjournments ultimately on 14-5-2011 learned counsel for the appellant produced a special power of attorney on behalf of the appellant and stated that appellant was not in a position to appear before the Court due to his other engagements and has appointed his wife Robina Bibi a special attorney present in the Court. The learned trial Court vide order dated 14-5-2011 maintained as under:-- "

3. Sh. Muhammad Ijaz was directed by this court to appear before this court in person vide order dated 10-3-2011 when the respondents had alleged that the petition filed by Sh. Muhammad Ijaz bears his forged and fake signature. Therefore, the appearance of Sh. Muhammad Ijaz petitioner was deemed necessary by this court in order to ascertain from him about his alleged forged signature and not for the purpose to pursue this petition because he had already appointed Mr.S.A. Hameed Advocate as his counsel who was pursuing this petition. As personal appearance of petitioner is required and appropriate order has already been passed by this court for his appearance before this court, therefore, appearance of special attorney cannot be deemed as compliance of the order of his court dated 10-3-2011. The petitioner is given last and final opportunity to appear before this court in person on 21-5-2011 failing which it shall be presumed that the petition has been filed with his forged signature."

6. On the adjourned date of hearing i.e. 21-5-2011, appellant did not appear before the learned trial Court consequently his application under Order IX Rule 13 read with section 12(2), C.P.C. was dismissed through the impugned order dated 21-5-2011 which reads below:-- "Robina Bibi special attorney of petitioner Sh. Muhammad Ijaz is present and states that Sh. Muhammad Ijaz petitioner has not come. On previous date of hearing this court had clearly directed the petitioner Sh. Muhammad Ijaz to appear before this court in person failing which it shall be presumed that the petition was filed with his forged signatures. There is allegation from the respondent that Sh. Muhmmad Ijaz petition himself has not filed this petition and the instant petition was filed with his forged signatures. Keeping in view this allegation of the respondents Sh. Muhammad Ijaz petition was directed to appear before this court in person but he has failed to comply with the order of this court. In these circumstances, it is presumed that the petition in question has not been filed by him and same is hereby dismissed. Record of the suit and that of this petition be consigned to the record room."

7. In this case respondent had taken up an objection that application under Order IX Rule 13 read with section 12(2), C.P.C. was not signed by the appellant. Certainly the objection could have been answered by the appellant alone. Neither his learned counsel nor his special attorney could depose about this fact therefore presence of the appellant was necessary to meet the objection. At this stage it may be expedient to reproduce the provisions of Rules 2 and 4 of Order X of the Code of Civil Procedure 1908 which reads below:-- "Order X Rule 2.

Oral examination of the party or companion of party.

At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied, [shall] be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party. Rule 4.

Consequence of refusal or inability of pleader to answer.--(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit."

8. Bare reading of the afore-quoted provisions makes it crystal clear that the learned trial Court had the jurisdiction to make the direction that a party shall appear in person on the date fixed by the Court. It is evident on the record that the appellant wilfully failed to appear before the Court despite having knowledge of the fact that his personal appearance is directed by the Court. It is not denied by the appellant that he was fugitive from law being a proclaimed offender in some criminal cases pending against him in those days. He was under legal obligation to join the proceedings before the Court to abide by the direction. Appellant had no lawful excuse to avoid his appearance as directed by the Court. He had also never sought for any exemption from appearance. Rule 4(2) of Order X of the C.P.C. clearly manifest that if a party fails without lawful excuse to appear in person on the day so appointed, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Argument of the learned counsel for the appellant that learned trial Court had no power to dismiss his application for default of appearance, therefore, is devoid of any force. There is nothing to preclude the Court from not pronouncing judgment on merits but dismissing it for default of appearance. Appellant wilfully failed to appear in person as directed despite number of opportunities provided by the Court, therefore, he has no case to challenge the legality and propriety of the impugned order. Reliance be made upon Chaudhry Muhammad Aslam v. SME Bank Limited through Chairman/President and 2 others (2006 CLD 1301).

9. For the above reasons, I do not find any factual or legal infirmity in the impugned order. This appeal having no merit is dismissed. SAK/M-23/L Appeal dismissed.