1994 PLP 1947 (MLD)

Short facts relevant for decision of the civil revision were as follows:

Muhammad Arif defendant No.3 in the civil suit instituted by Rahim Khan plaintiff-respondent No.1 for declaration of ownership rights in respect of 153 Kanals of land situate at Mauza Sandhu of Tehsil Pattoki, District Kasur was declared ex parte by the trial Court on 12-2-1991. Previous to it, he had submitted his written statement and issues on merits were also settled on 11-2-1990. Meanwhile, plaintiff gave his evidence and part of the evidence by co-defendants was also recorded. Since defendant No. 3 was ex parte, he could not cross-examine plaintiff's witnesses and also those of his co-defendants, in case their testimony was adverse to his interest. On 15-4-1993, defendant No. 3 applied to the trial Court under Order IX, Rule 7, Civil P.C. for setting aside of the ex parte order against him and for permission to join future proceedings in the suit. Vide its order dated 3-5-1993, the trial Court disallowed the petition and further adjourned the suit for co-defendants remaining evidence. Aggrieved of the order, defendant No. 3 preferred revision in the District Court at Chunian. Upon amendment to section 115, Civil P.C. revision petition was returned to him for its presentation in competent jurisdiction. Thereupon, it was instituted in this Court. It was admitted to hearing today and was being disposed of in the following manner. Trial Court found that defendant No. 3 had not made out sufficient cause for setting aside of the ex parte order against him for being relegated to the stage of his initial default and that the petition filed by him was also barred by limitation. I shall forthwith advert to the point of limitation which weighed with the trial Court for turning down the prayer for setting aside of the ex parte order. On the point of limitation, the trial Court did not think correctly. In Manzoor Ahmad Bhatti, Advocate v. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another PLD 1973 Lah. 659, this Court held the view that Order IX, Rule 7, Civil P.C. does not, as such, provide for a period of limitation. There are two rules which enable defendant to apply for setting aside the ex parte proceedings taken against him. During the pendency of the suit, such an application is competent under rule 7, while after the passing of the ex parte decree, application is maintainable under rule 13 up to the stage, when the case becomes ripe for pronouncing judgment, Order IX, rule 7 would apply and once the case has become ripe for this purpose the defendant is to wait for the passing of the ex parte decree and he can approach the Court under rule 13". Obviously, the view taken by the trial Court runs contrary to the law laid down by this Court in the above-cited case and, therefore, could not be maintained. As far the good cause shown for setting aside of the ex parte order, I must affirm that defendant No.3 was negligent. He kept himself out of the field for almost two years and two months and then returned to join the proceedings. His case was that since the dispute in the suit was shown to have been compromised, he did not appear at the trial but upon discovery of true facts, wished to join and defend the suit. There is a view that Court should be liberal in construing Rule 7 of Order IX, Civil P.C and should not take a stringent view of defendants absence. All that Rule 7 envisaged was that unless the ex parte order was set aside, the defendant could not be relegated to the previous position he would have occupied if he had appeared. If he appeared on the adjourned date of hearing in the suit, he could not be stopped and precluded from participating iii the proceedings from that stage onward simply because he had not appeared on the previous hearing and did not show good cause for his non-appearance. As far joining future proceedings, defendant No. 3 could not be stopped and the rule did not permit t such a course by the Court. However, as regards occupying the previous position, defendant was obligated to show good cause for it and unless he did so, he could not be relegated to it. In my view, he did show a justifiable good cause for setting aside of the ex parte order against him. Therefore, he deserved to succeed. In view of the aforesaid, civil revision is allowed; impugned order dated 3-5-1993 of the trial Court is set aside with the consequence that defendant No. 3 shall be allowed to join the proceedings from the stage of his initial default in appearance on 12-2-1991 to claim cross-examination of Plaintiffs witnesses and those of the co-defendants if adverse to his interest and also give his evidence in defence. However, the order setting aside the ex parte order shall be subject to prior payment of Rs.2,000 as costs to the plaintiff. It may be observed at the end that the General Attorney of respondent No, 1 plaintiff in the suit had agreed to the setting aside of the ex parte order on payment of costs. As far costs in this Court, parties shall bear their own. Parties shall appear before the trial Court on 11-6-1994. Furthermore, defendant No. 3 shall pay expenses for re-summoning of witnesses already examined for their cross-examination by him. AA./M-1680/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly,