1976 PLP 839 (PLC(CS))

Appellant in person. Respondent in person. This is an appeal under section 12 (6) of the Shops and Establishments ordinance, 1969, and had arisen in the circumstances given below. Gulzar Muhammad claimed to be an employee of Muhammad Zaman. He filed an application before the Authority under Shops and Establishments Ordinance, 1969, for recovery of Rs.

600. He stated that he was working on the Truck of the respondent and he had not been paid wages for three months. A notice was sent to the respondent. The Process-Server reported that the respondent refused to accept service. Ex pane proceedings were taken and the Authority passed an ex parte order on 10-11-1973, directing the respondent to deposit an amount of Rs. 600 in the said Court within 15 days. The respondent filed an application to set aside the ex parte order. On 7-10-1974, the ex parte order was set aside on the condition that the respondent would pay a sum of Rs. 70 as cost and would also deposit a surety bond to the tune of Rs.

600. The case was adjourned for further proceedings on 22-10-1974. Again the case was adjourned to 31-10-1974. On that date learned Authority observed that the conditions imposed o n the respondent were not complied with and so the original order "or recovery of Rs. 600 was restored. In these circumstances, the present appeal has been filed. The proceedings in this case are of civil nature and so guidance must be sought from the provisions of Civil Procedure Code. Under Order IX, rule 13, C. P. C. in any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside if he satisfied the Court that the summons gas not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into the Court or otherwise as it thinks fit and shall appoint a day for proceedings with the suit. The condition for setting aside an ex: parts decree is that either the summons was not served or that the defendant was prevented by any sufficient cause from appearing in the Court. There is a wide discretion with the Court in imposing such terms on the applicant as it thinks fit before setting aside the ex parte decree. In the present case the order dated 7th October 1974, passed by the Authority is not happily worded. It is not clear whether the ex parte order was set aside on the ground that the, summons was not owed on the applicant or whether it was set aside on the ground the applicant was prevented by sufficient cause from appearing in the Court. The case of the applicant before the Authority was that the sammons was not served on him. It appear that his case was that the opposite part, mentioned in the application his address as House No. 328-B, Nazimbad Colony, Lyallpur, whereas his address was house No. 131 B, Nazimbad, Lyallpur, and by giving a wrong address a false report about refusal was obtained- Obviously, the Authority accepted the application of the appellant/defendant and so I assume that the Authority set aside the orders on the ground that the appellant was not served. There is no doubt that the Authority had discretion to impose conditions but this discretion was not to be exercised arbitrarily. Whatever, the case may be a Court has to exercise the discretion in judicial manner. In the present case the appellant was not served at all and so he could not be penalized by imposing costs on him. After all it was riot his fault if the Process Server had made a wrong report. Ordinarily the costs would be imposed if the defendant is at fault. For instance Court had come to the conclusion that defendant was duly served he was prevented by sufficient cause from appearing in the Court. In that case that the opposite party must have been compensated by allowing costs to him. In the present case no conditions should have been imposed by the Authority while setting aside the decree. The final part of the order, dated 7th October, 1974 is not very much clear. It says that both the applications were accepted provided the cost of Rs. 70 is paid and surety bond is filed. By implication it can be said that the ex parse order dated 10th November 1973 was set aside upon such terms as to costs etc. The language of the order should have been more clear. It could be in the terms that if the defendant deposited the costs in Court on or before a certain date the ex parte order would be set aside and in case such payment was not made within a time specified in the order: the application for setting aside the ex parte order was to stand dismissed and tie original order maintained. However the last order which is doted 31st October 1974 is mentioned the fact that the original order was restored. The result is that the appeal is accepted and the orders, dated 10th November, 1973, are set aside. The order dated 7th October 1974 is modified to the extent that the ex parte order shall stand dismissed without any terms of payment of costs or filing a surety bond. The parties are directed to appear before the trial Court on 30th January 1975.