2011 CLC 421 (PLP)

MUZAFFAR ALL, J.

This revision petition assails the decree dated 6-10-2010 passed by the learned Additional District Judge Ghizar whereby the first Appellate Court has confirmed the ex parte decree ' dated 21-9-2007 passed by the learned Civil Judge Gupis/Yaseen. The brief facts, gave birth to this revision petition, are that the present respondent filed Suit No.10/6 for recovery of Rs.193,000 on account of dower, dowry articles and maintenance against the present petitioner. The present petitioner remained absent from the Court on 21-9-2007 as such faced the ex parte decree. He claimed setting aside the ex parte decree against him through an application under Order IX, Rule 13 read with section 151, C.P.C. submitted to the trial Court but the learned trial Court refused to set aside the ex parte decree as in his opinion the application was time barred under Article 164 of the Limitation Act 1908. The relevant portion of the order dated 29-9-2009 passed by the learned trial Judge is reproduced hereunder:-- "But it is evident from record of file that on the day of ex parte decree suit was fixed for written statement which is admittedly a date of adjournment. But in all cases of ex parte decree, application for setting aside should be filed within limitation prescribed in Article 164 of Limitation Act, 1908. Petitioner filed this application after lapse of about seven and half months of decree." The ex parte decree and the order dated 29-9-2009 passed by the learned trial Court were impugned before the first appellate Court. The learned first appellate Court upheld the ex parte decree dated 21-9-2007 passed by the learned trial Court vide order dated 6-4-2010. The relevant portion of the impugned order is also reproduced hereunder to discuss:-- "The date on which the ex parte decree is passed is admittedly one not fixed for hearing as on the given date the defendant was required to file his written statement and Article 181 Limitation Act is attracted but no any satisfactory evidence or affidavits are available with the petition filed under Order IX, rule 13, C.P.C. by the appellant to satisfy the conscience of the Court that the appellant was prevented on the given date from appearing before the Court due to sufficient cause, bonafidely and with clean hands as one who comes to equity must come with clean hands. In the circumstances afore referred availability of limitation to the appellant will make no difference as he had failed to prove sufficient cause and cleanliness of his hands therefore the impugned order is liable to be maintained to the extent of dismissal/rejection of the petition of present appellant/petitioner with the varied view above." I heard the counsel for the parties. In the case in hand the under noted legal points are required to be determined. (a) Whether the ex parte decree dated 21-9-2007 comes within the ambit of Order IX, Rule 6, C.P.C. (b) Whether the ex parte decree if even does not come within the ambit of Order IX, Rule 6, C.P.C, then too an application under Order IX, Rule 13 is required for seeking its dismissal and Article 164 Limitation Act would attract. (c) Whether a sufficient cause is required to put for seeking dismissal of an ex parte decree even if the ex parte decree does not fulfil the prerequisite of the Order IX, Rule 6, C.P.C. and is without jurisdiction, void and nullity in the eye of law. The above points need to be understood and determined in the light of Order IX, Rule 6, C.P.C. and Order IX, Rule 13, C.P.C. as such I visited through the provisions. The plain reading of the provisions transpire a jurisprudential impression that the Court has discretion to pass an ex parte decree against a defendant if he makes himself absent from the Court and the plaintiff attends the Court. The discretion can be exercised only when the suit is "called on for hearing" then and the Court gets satisfaction that the summons was duly served to the defendant. The words "when" and "then" used in the Order IX, Rule 9(1) are having jurisprudential value to understand that, the Court can pass the ex: parte decree 'when" the "suit is called on for hearing" then only, otherwise the Courts have no jurisdiction to exercise the discretion. Secondly, the words "the suit is called on for hearing" are also having importance to understand as the words apparently seem to be prerequisite to pass an ex parte decree. Hence let me understand the words with the help of case law laid down by the august Supreme Court and various High Courts in this regard. "The suit is called on for hearing":-The word "hearing" and the word "suit" used in the sentence, construe importance as such required interpretation. "Hearing:-" the term hearing has not been defined, but the august Supreme Court and the High Court have considered various dates fixed to be the dates for hearing, for instance a date fixed for evidence, fixed for framing of issues by the Court, and hearing of B arguments etc. (1) SCMR 1987 Page-733 (2) PLD 1975 SC Page-878 (3) MLD 1992 Page-458. The word suit:- connotes that, the date must be fixed for taking steps by the Court to proceed the suit itself and a date C fixed to determine any collateral or interlocutory matter in the suit does not come within the ambit of date fixed for hearing. When a Court passes an ex parte decree when the suit is called on for hearing then the remedy, for setting the same aside, has been provided under Order IX, Rule 13, C.P.C, whereby a defendant can file an application for setting aside the ex parte decree but the application must be shielded with sufficient cause to justify the non-appearance of the defendant on the date the ex parte decree is passed and the application must be within 30 D days under Article 164 Limitation Act as the application under Order IX, Rule 13, C.P.C. is governed under Article 164 Limitation Act. The remedy under Order IX, Rule 13, is available to a defendant only when the ex parte decree has been passed when the suit' is called on for hearing as in the said rule the language has been used by the legislature as under:-- Order 9 Rule 13. "Setting aside decree ex parte against defendant ....(1) In any case in which a decree is passed ex parte against defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was 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 Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit." Hence the Order IX, Rule 13 is specific to provide a remedy against an ex parts; decree passed when the suit is called on for hearing, and a defendant is required to show sufficient cause for his absence when suit was called on for hearing but it happens often, as in the case in" hand, that the Judges pass ex parte decrees without applying conscious mind and without taking care, whether the suit was called on for hearing or not then in such circumstance, the Higher Judiciary has held the ex parte decree without jurisdiction, having no legal effect, void and coram non judice. The case law in this regard can be referred as under: -- (1) 1992 SCMR Page-707 (2) 2006 SCMR Page-789 (3) CLC 1993 Page-660 (4) 1987 SCMR Page-733 (5) PLD 1975 SC Page-678 (6) 1973 SCMR Page-103 (7) PLD 1964 SC Page-97 (8) 2009 CLC Page-351 and dozens of more, when an ex parte decree has been passed when the suit was not called on for hearing, then the same is being set aside in exercise of inherent jurisdiction under section 151, C.P.C., as no order or a decree, passed without jurisdiction or nullity in the eyes of law, can be allowed to stand in the way to prevent the substantial justice and once an ex parte decree is dealt under section 151, C.P.C. then residuary Article 181 Limitation Act applies for submission of such an application which provides three years of Limitation period for submission. In holding this view I have been guided by the following case law (1) PLD 1'990 SC Page-813 (2) 1985 SCMR Page-1228 (3) PLD 1981 SC Page-21 (4) 1989 CLC Page-825 (5) 1987 CLC Page-1858. In the case in hand the date of ex parte decree was fixed for filing of written statement and admittedly the date was not a "date-fixed for hearing" as has been held by the august Supreme Court in the cases (1) PLD 1991 SC Page-1104 (2) 1987 SCMR Page-733 (3) PLD 1975 SC Page-678, hence the impugned ex parte decree passed by the learned trial Judge does not come within the purview of Order IX, Rule 6, C.P.C. I and same is without jurisdiction, void and nullity in the eyes of law as such can be set aside by invoking inherent jurisdiction of Court under section 151, C.P.C. for the purpose not to allow it to defeat ends of justice and once the inherent powers are exercised under section 151, C.P.C. then limitation would be governed under Article 181 Limitation Act, which provides three years. The impugned orders speak that, both the learned Judges have realized that, the date fixed in the case was not a date fixed for hearing of the suit, but both the learned Judges have erred in law in reaching into legal conclusion, though from different angles. The learned trial Judge refused to set aside the impugned decree holding that even then the ex parte decree could be set aside only under Order IX, Rule 13, C.P.C. and limitation for the application is 30 days under Article 164 Limitation Act and since the application for setting aside the impugned decree was submitted after lapse of 30 days as such declared time barred. This legal conclusion of the trial Judge is against law. The proper course for him was to set aside the impugned ex parte decree in exercise of his inherent jurisdiction under section 151, C.P.C. to cure his own legal mistake. On the other hand the learned Additional District Judge reached to the conclusion that, the application for setting aside the impugned ex parte decree is within time under Article 181 Limitation Act, but he turned his mind towards sufficiency of cause for absence of the defendant on the date and held the cause given in the application to be insufficient and refused to set aside the impugned Orders and ex parte decree passed by the learned trial Judge without applying his judicial mind towards legal consequences that, an order or a decree once proved to be without jurisdiction, void ab initio, cannot be allowed to stand on the way to hamper the ends of justice, only on the pretext of "sufficient cause". The sufficient cause is pertinent to show when the application for setting aside an ex parte decree comes within the purview of Order IX, Rule 13, C.P.C. only and an ex parte decree passed on a date which was not fixed for hearing of the suit becomes coram non judice and it self is sufficient cause for setting aside the same as on the date the decree could not be passed under the law. In this regard I am supported by the case law laid down by the august Supreme Court in the cases (1) PLD 1991 SC Page-1104 (2) 1987 SCMR Page-733 (3) PLD 1975 SC Page

678. Consequent upon the above discussion the impugned Orders passed by the Courts below and the impugned ex parte decree dated 21-9-2007 are set aside and the suit is remitted to the trial Court for disposal of the same on merits, however the present petitioner is liable to pay Rs.10,000 cost to the present respondent, for his irresponsible attitude in dealing with the suit. No orders as to costs. H.B.T./5/Glt. Order accordingly.