2013 PLP 2517 (YLR)

MUSARRAT HILALI, J.

This appeal is directed against the order dated 21-2-2012 of learned Civil Judge-XXIX, Peshawar whereby application of the appellants for setting aside ex parte decree dated 14-7-2011 has been dis-missed.

2. Short but relevant facts of the case are that the respondents filed a suit for declaration to the effect that they have well established and reputed institutions in the educational sector and if the appellants retain the logos, monograms, hoardings, sign-boards and use the same for their own advertisement, publicity purpose and benefit, it constitutes an offence under the copy rights and trade mark. Any such use will be against the law, facts and will be ineffective upon their rights. Prayers for return of the items mentioned in the plaint or in alternative for recovery of Rs.30,00,000 as cost of items, recovery of Rs.157,238 as the amount of security retained by the appellants/defendants, mandatory as well as permanent injunctions were also sought in the plaint.

3. During the proceedings on 18-4-2011 memo of appearance by a counsel was submitted on behalf of appellants Nos.1 to 5 (the then defendants). Learned counsel sought adjournment on the ground that he would file power of attorney on the next date. The learned trial Court directed the counsel to submit proper power of attorney and written statement, hence the case was adjourned to 11-5-2011 but neither the said counsel submitted his power of attorney on behalf of appellants Nos. 1 to 5 nor written statement as per direction was filed, therefore, they were proceeded ex parte followed by ex parte decree against them on 14-7-2011. The appellants submitted an application for setting aside ex parte decree on 15-7-2011 but the same was turned down by learned Civil Judge-XXIX, Peshawar vide order dated 21-2-2012, which has now been questioned through the instant appeal.

4. Learned counsel for appellants contended that the appellants were not properly served. Further contended that the ex parte decree passed by learned trial Court is illegal, void ab initio as the date on which ex parte proceedings were initiated against the appellants was not a date of hearing rather the date was fixed for filing of wakalatnama and written statement. He added that application filed for setting aside ex parte decree was within time with a prayer that at the relevant time appellant No.1 was abroad and was not properly served but the same was dismissed summarily by learned trial Court; that valuable rights of the appellants are involved in this case, therefore, if the ex parte decree is not set at naught, they will suffer irreparable loss.

5. Conversely, learned counsel appearing on behalf of respondents contended that the appellants did not appear before the learned trial Court after their attorney having been served properly. Moreover, their counsel submitted memo of appearance on their behalf, who later on opted not to appear before the learned trial Court, therefore, the learned trial Court was perfectly justified while proceeding against the appellants ex parte followed by ex parte decree, which is based on sound reasons. I have heard learned counsel for the parties and gone through the record available before me.

6. The record is suggestive of the fact that on 18-4-2011 an advocate appeared before the learned trial Court and filed memo. of appearance on behalf of appellants Nos.1 to 5 (then defendants), who was directed by the court to submit proper power of attorney and written statement on the next date and the case was adjourned to 11-5-2011. On the said date neither the counsel filed power of attorney nor written statement was submitted, thus, ex parte proceedings were initiated by the learned trial Court, holding that as memo of appearance on behalf of appellants (defendants) was submitted in the court, therefore, learned court on the presumption that all the appellants (defendants) were well informed of the pendency of the matter before it. For convenience sake the order sheet dated 11-5-2011 is reproduced below:-- Order

12 11-5-2011. "Plaintiffs through Assadullah advocate present. None present for defendants. On previous date, Syed Sikandar has filed memo of appearance but today neither the said advocate nor anyone from defendants appeared. Since defendants Nos.2 to 4 have already been placed ex parte and from the memo of appearance, it is very much clear that all the defendants are well aware of the case but do not attend the proceedings, hence defendants Nos. 1 and 5 are also placed ex parte today. Plaintiffs are directed to submit list of witnesses and produce their evidence on 2-6-2011. "Moreover, if there are any D/W, the plaintiffs are directed to deposit D/M within 3 days along with list of witnesses. Thereafter, D/W, if any, be noticed. Otherwise, plaintiffs to produce their ex parte oral evidence on the date fixed". Thereafter, an ex parte decree was passed against the appellants on 14-7-2011 against which the application filed by them was dismissed on 21-2-2012.

7. Memo. of appearance is an undertaking to file proper power of attorney where for some reasons a duly signed power of attorney within the meaning of Order III Rule 4 (i) C.P.C. is not immediately procured. Memo of appearance only enables an advocate to plead on behalf of a party for a particular hearing and is yet to be authorized by the party to conduct all the proceedings. Order III Rule 4(i) C.P.C. expressly prohibits a counsel from appearance in the court without filing wakalatnama duly signed by the party. The said wakalatnama is deemed to be in force until all proceedings in the suit are ended or till such time the power of attorney is withdrawn or revoked according to the rules, therefore, in case if the lawyer who files memo of appearance fails to submit a proper power of attorney on the next date fixed, in that case the court shall issue fresh notice to the party concerned. "The expression date of "hearing" is defined in Wharton's Law Lexicon as "investigation of a controversy."

8. The pivotal question to consider is whether a date, which was fixed for filing of power of attorney and written statement, was date of hearing within the meaning of Order IX Rule 6 C.P.C. The answer can well be founded in an unreported judgment delivered by Lahore High Court in C.R. No.624 of 1979 decided on 11-12-1979, wherein, it was held that the date fixed for the filing of replication is not a date of hearing of the suit and, therefore, the suit cannot be dismissed in default as it was not intended that there should be hearing of the suit in the ordinary sense of the word i.e. at which either evidence is to be taken or arguments heard, or questions relating to the determination of the suit, considered but is merely for some interlocutory matter to be decided. This view was reaffirmed in the case of Qaim Ali Khan v. Muhammad Siddique (1987 SCMR 733), wherein, it has been held that if there is a date fixed in a suit which is not for its hearing, the plaintiff cannot be penalized for his absence on that date. Similarly, in the case of Sher Muhammad and others v. Ahmad Jan (2004 CLC 1016) it was held that "the word hearing means the taking of evidence or hearing of arguments or considering of question relating to the suit, which would enable the court to finally come to an adjudication upon." The same view gets support from the case of Abid Mehmood v. Abdul Aziz (2003 YLR 3106) that under Order IX Rules, 3, 6, 8, Order XV Rule I and Order XVII Rules 2, 3 of Civil Procedure Code, date of hearing includes investigation of controversy, hearing of arguments, framing of issues or taking evidence etc. and not hearing interlocutory matter. Date on which no investigation of any matter germane to progress of suit is to be performed by court and which is only fixed for making order of administrative nature such as filing of written statement, replication or for altering date etc. is not a date of hearing.

9. It was brought to the notice of learned trial Court that appellant No. 1 was abroad and was neither served according to law nor any substituted mode of service was adopted before placing them ex parte. In the circumstances, the learned trial Court was then bound to provide them an opportunity of producing evidence as to why they remained absent for so long and whether he was actually abroad.

10. From the above discussion, it is observed that the learned trial Court has initiated ex parte proceedings on a date, which could not be treated as a date of hearing, thus, the same was without jurisdiction.

11. Accordingly, this appeal is allowed, the impugned ex parte decree dated 14-7-2011 is set aside subject to payment of cost of Rs.10,

000. Case is remitted to the learned trial Court with direction to provide an opportunity of hearing to the appellants. Parties are directed to appear before the learned trial Court on 23-9-2013. In case of non-payment of cost, the ex parte decree shall remain operative. AG/487/P Case remanded.