1979 PLP 203 (CLC)

5. Aggrieved by this order of the trial Court, the petitioners‑defendants preferred an appeal to the learned District Judge, Rahimyarkhan who dismissed the same by his judgment dated 10‑10‑1974 impugned in this revision petition.

6. The learned counsel for the petitioners contended that the trial Court could not decree the suit ex parte on 19‑4‑1973 as it was not a date of hearing in the suit but was merely the date fixed for filing of reply to the application filed by the petitioners defendants under Order XVIII, rule 2, C. P. C. He also contended that the suit in any case should not have been decreed ex parte in the early hours of the day and that the trial Court should have noted the exact time on the file when the ex parte decree was passed. He relied in this regard on Punjab and Kashmir Bank Ltd. v. Sheikh Mahboob Alam (P L D 1966 Lah. 356) and Karam and others v. Noor Muhammad and others (P L J 1976 Lab. 799),

7. On the other hand, the learned counsel for the respondents submitted that the petitioners defendants had. been using dilatory tactics and as such the Courts below were justified in passing the impugned orders, Ex parte in the early hours of the day on 19‑4‑1973. He further submitted that no sufficient cause was shown by the petitioners‑defendants for setting aside the exparte decree and that as the application moved by them under Order IX, rules 13, C. P. C. did not show on behalf of which petitioner defendant it has been made, it was liable to be rejected. 8. 1 have given consideration t the arguments advanced by the learned counsel for the parties and am inclined to agree with the submissions made by the learned counsel for the petitioners.

9. The relevant provisions for the purposes of resolving the con troversy involved in the case are Rule 6(1) of Order IX and Order XVII, rule 2 of the Code of Civil Procedure. The two provisions for facility of reference are reproduced hereunder. "Order IX, rule 6(1). Where the plaintiff appears when the suit is called on for hearing, then‑ (a) if it is proved that the summons was duly served, the Court may proceed ex parte (and pass decree without recording evidence). Order XVII, rule 2 ‑Where, on any day to which the hearing of the suit is adjourned the parties, or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that II 'behalf by Order IX or make such other order as it thinks fit." The expression "when the suit is called on for hearing" and "hearing of the suit" are synonymous and the latter has been the subject of judicial interpretation in many judgment's of the various High Courts of the sub Continent, including the Lahore High Court. In the case Balmakund Marwari v. Lachmi Narain Marwari and others (A I R 1920 Pat. 595) this expression was interpreted in the following words :‑‑ "by hearing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication on it. But in cases where it was clearly never intended that there should be a hearing of the suit in the ordinary sense of the word but merely some interlocutory matter decided between the parties as to the future conduct of the suit, the provisions of these rules have no application." The above exposition was cited with approval in case Manohar Das v. Birandari Shaikhupurian (A I R 1930 Lab. 280). In Mst, Barkat Bib! and others v. Fateh Ali (minor) through Muhammad Ad and others (1) also, the aforecited two judgments were referred to with approval and the conclusion reached therein as noted above was agreed to, or the basis of definition of the word "hearing" as given in the Wharton's Law Lexicon it was further observed that it means investigation of controversy"

10. The above view has been adopted in a number of other cases decided by the Lahore High Court. Some of these are (A I R 1949 Lab. 63) Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India (P L D 1954 Lab. 575), Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (P L D 1970 Lab. 412) and Rahim Bux and another v. Gul Muhammad and 2 others (P L D 1971 Lab. 746).

11. I am in respectful agreement with the interpretation put on the phrase `hearing of the suit' in the authorities cited above. ‑ I venture to~ add that if in a suit the proceedings of interim or auxiliary nature to be held on a particular date, been the matters as mentioned in the order and intended to be taken can only be dealt with on that date and the main suit if not otherwise `fixed for hearing' no orders therein can be passed in the absence of a party under any of the provisions of Order IX and Order XVII, rule 26, C. P. C.

12. Adverting now to the case in hand, a perusal of the order of the trial Court passed on 10‑4‑1973 leaves no manner of doubt that the case was ad journed to 19‑4‑1973 for only filing of reply to the application filed under Order XVIII, rule 6, C. P. C. This being the position, the main suit was not at all fixed for hearing. Consequently there appears no justification for having passed ex parte decree or for that matter proceeding ex parte against the petitioner defendant on 19‑4‑1973 when the suit was not fixed for hearing on that date but it was only and interlocutory matter concerning the furture conduct of the case which was fixed. At the maximum, therefore, on 19‑4‑1973, the trial Court could dismiss the aforementioned application of the petitioners‑defendants. In the context of the above discussion I have no hesitation to hold that the order of the trial court dated 19‑4‑1978 was without jurisdiction.

13. The other contention raised by the learned counsel that the ex parte decree was passed in the early hours of the day also finds support from the fact that an application for setting aside the same was made on the same date, i.e. on 19‑4‑1973. The application also earlier stated that the case was not fixed on 19‑4‑1973 for hearing but it was only the application under Order XVIII, rule 2, C. P. C. which was fixed and B that the counsel for the petitioners‑defendants being ill did not reach the Court in time and the petitioners did not appear as they were not required the case having been fixed for an interlocutory matter only. This being the position, the short order passed on 17‑4‑1974 in the following words shows lack of application of mind to the controversy involved in the case, and, thus the same suffers from material irregularity. Similarly the learned District Judge has not adverted to the controversy involved‑in the matter in its proper perspective and his judgment dated 10‑10‑1.974 is also not sustainable. 14. 1 may also mention here that the principal object of legal for malities and procedural provisions is to safeguard the interest of justice. The procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. In particular while in the penal provisions, the Courts must always ensure that these are not applied mechanically, but with proper application of mind, due care and caution, and when positively applicable, rather only when non‑invoking thereof might entail injustice. The invoking of these provisions in a slipshed manner and arbitrarily without due application of mind and without adverting to the record as has been done in the instant case tends to delay the adjudication of the cases on merits and in addition unnecessarily burdens the parties with expenses. This to my mind, appears to be nothing short of abuse of procedure and law and cannot restrain myself rather feet obliged tot deprecate such an approach to the matters.

15. In so far as the contentions raised on behalf of the respondents, are concerned, suffice it to say in respect of the first, that the alleged' dilatory tactics cannot be a ground for maintaining the orders of the' Courts below which are without jurisdiction, manifestly illegal and suffer from material irregularity.

16. The contention that the suit was decreed ex parte, in the later hours of the day also does not find support from the record.

17. As to the sufficiency of the cause for setting aside the ex parte decree, it may be pointed out that the cause given in the application that it was only the application which was fixed for hearing on 19‑4‑1973 and the date was not for hearing in the suit was by itself a sufficient cause to which point neither of the Courts below adverted.

18. The last contention raised by the learned counsel that the application filed by the petitioners‑defendants did not show on whose behalf the same was made, is apparently of no consequence. The provisions` of rule 13 of Order IX of the Code of Civil Procedure are clear on the subject that the application could be made by a defendant in the suit an by virtue of the proviso to the above rule if the decree is of such a nature that it cannot be set aside as against the defendant who has made the application, it may be set aside as against all or any of the other defen dants also.

19. In view of the foregoing discussion, this revision petition is accepted, the orders of the Courts below are set aside and the case is remanded to the trial Court for adjudication on merits commencing the proceedings from the stage where these had reached on 10‑4‑1973: The parties are, however, left to bear their own costs.

20. It is further directed that the parties shall appear before the trial Court on 8‑3‑1979. Office to ensure that the record of the trial Court is sent back to it before the date aforementioned. S. A. H. Revision accepted.