P L D 1950 Lahore 82 (PLP)

MUHAMMAD SHARIF, J.

This is an appeal against the order of the learned Subordinate Judge 1st Class, Lahore, dated the 26th of June 1948, refusing to set aside an ex-parte decree. On 4th of June 1947, Madan Lal claiming to re the lessee of the Capitol Cinema, Lahore, instituted a suit for damages and for the recovery of rent etc., of the total amount of Rs. 93,522 against Lala Pindi Dass, Krishan Lal and Harbans Lal sons of Lala Nand Lal Malhotra, the owners and the lessors of the Cinema. The suit was first heard by Lala Durga Pershad Sodhi and later by Lala Chaman Lal Puri. The defendants filed the written statement and the plaintiff was direct ad to file a replication thereto. On 17th of July 1947, the parties counsel were present and the plaintiff could not file the replication as the copy of the written statement had not been given to him by the defendants, The case was adjourned to 8th of October 1947, when the replication by the plaintiff was to be put in. On account of the partition of the Province on 15th August 1947, the case was on 8th October 1947 pending in the Court of Syed Mohsin Tirimzy, who evidently had succeeded Lala Chaman Lal Puri. On that date, the defendants were absent. It appears that their non-Muslim counsel had also left the Province and there was nobody to represent them at the hearing. Ex parte proceedings were ordered to be taken and the case was adjourned for evidence to 27th October 1947. On the date fixed, the Presid ing Officer happened to be on leave and the case was adjourned to 1st of November 1947. On that date, the plaintiff's evidence was recorded ex parte and the next date for orders was fixed for 5th of November 1947. On 5th November 1947 the Court, son mote issued a notice to the plaintiff why the Custodian of the Evacuee Property be not impleaded in the case. About that time-the exact date is not clear-the case in the course of administrative orders, was transferred by the District Judge, Lahore, to the Court of Sheikh Bashir Ahmad. On 11th of December 1947, the case was heard by Sheikh Bashir Ahmad, who noted: that the case had come after transfer ; no one was present : ,notices should go to the plaintiff and his counsel for 28th of January 1948 ; and as ex parte proceedings had already been taken against the defendants, notices need not go to them. On 28th of January 1948, the Mukhtar-i-Khas of the plaintiff attended and the case was adjourned to 11th of February 1948 for arguments. On that date the ex parte decree for Rs. 71,897, was passed against the defendants. On 28th February 1948, an application under order 9, rule 13, Civil Procedure Code, was presented by Kirshan Lal Malhotra through Khawaja Feroze-ud-Din Ahmed, Barrister-at-Law. It was prayed that the ex-parte decree passed on 11th February 1948 be set aside, as the defendants were not aware of that date and on account of communal disturbances the petitioner and his counsel, a non-Muslim, had left the West Punjab. It was further mentioned that in December 1947, Khawaja Feroze-ud-Din was engaged to appear in the case. After considerable search, it was discovered that the case, had, after transfer, come to this Court. The clerk of Khawaja Feroze-ud-Din enquired from the Ahmad about the date of the case and he was informed that the next date was 28th of Fabruary 1948 and that the parties had also been issued notices for that date. This date was consequently noted in the diary, while in reality it was fixed for 28th of January, 1948. On the 28th of February 1948 the case was not shown in the cause list and on pursuing the matter further, it was learnt that the case had been decided ex-parte on 11th of February 1948. There was a bona fide mistake as to the note in the diary that the case was fixed for 28th of February 1948. Under the circums tances, it was claimed that there was " sufficient cause " for the absence and the ex-parte decree be set aside and the case decided on merits. The application was opposed by Lala Madan Lal on the ground that Lala Krishan Lal Malhotra, petitioner, had not left Lahore and a false story had been put forward in order to prolong the proceedings and that there was no reason for the setting aside of the ex pane decree. The learned Subordinate Judge framed the following issues:- (1) Whether the petitioner had sufficient cause for absence on 8th of October 1947? (2) Whether the application was properly attested? If not, what is the effect? Issue No. (2) is no longer of any importance and it shall not be necessary to refer to it in the course of this order. It might, however, be pointed out here, that in the original petition under order 9; rule 13, Civil Procedure Code, there was no reference whatsoever to the. 8th of October 1947. Nor was it mentioned in the reply by Lala Madan Lal, plaintiff held through his counsel on 22nd March, 1948. It appears that the learned Sub ordinate judge selected that date, as the ex-parte proceedings against the defendants had been taken then. The petitioner put himself in the witness-box as A. W. 1 Khawaja Feroze-ud-Din Ahmad, his counsel, was examined as A. W. 2 and his Munshi Shamshul Haq as A. W.

3. The statement of the petitioner was not considered sufficient to disclose a case of " sufficient cause " for his absence on 8th of October 1947. Instead of proving that he made efforts in Septem ber 1947, when the civil Courts here closed, to find out the next date of hearing, it would have been more correct to assert that on account of the conditions prevailing immediately after the partition of the Province, a member of the minority community was more concerned with his own personal safety than with the conduct of his suit. The petition 'for 'Setting aside the ex-parte decree nowhere asks for the setting aside of the ex-parte proceedings ordered on 8th of October 1947 and no more need be said about it. The evidence of Khawaja Feroze-ud-Din Ahmed, Advocate, and his clerk should make it clear that a genuine effort was made after their engagement in December 1947, to trace the file. It was eventually traced before the decree was passed, but there occurred some mistake as to the actual date of the hearing, either through the carelessness of the Ahlmad of the Court or through their own. It was urged that but for this bona fide mistake, the petitioner, would have appeared in Court in time to participate in the argu ments that were addressed on 11th February 1948, even if the prior ex-parte proceedings had not been interfered with. There is nothing in the Code of Civil Procedure to prohibit a defendant against whom a case is proceeding ex-parte, to join at any hearing of the case and start from that stage. This is, however, quite different from saying that after the case is finished and has resulted in a decree, a defendant can insist on the reopening of the proceed ings from the intermediary stage for which he had established " sufficient cause " for his absence. This would lead to useless complications and a case may never end. Where ex-parte proceed ings have commenced in a proper manner and culminated in an ex-parte decree, the defendant must show " sufficient cause " for his non-appearance on the date when the ex-parte proceedings were first taken. The above is the general rule. The more important question that arises in this case is whether the change in the "Court" would introduce different considerations. It may be recalled that the case was transferred by the District judge from the Court where it was pending to that where it was decided. A fresh notice was sent to the plaintiff and the defendant was not considered entitled to a notice for the simple reason, that he was being proceeded against ex-parte. The rule on the subject is contained in Volume 1, Chapter 13, paragraph 6 of the High Court Rules and Orders and may now be quoted. "When a case is transferred by administrative order from one court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which the case has been transferred. The District judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred." The rule directs notice to the " parties ". Does the defendant cease to be a party after the ex-parte proceedings? The lower Court has held so and the respondent has emphasized this, but no authority referred to and not a single case in support of this pro position, was brought to my notice. A defendant by his failure to appear at one of the hearings in the case, does not become an Outlaw. He is still a party to the litigation; the evidence is led against him and the decree is ultimately passed against him. He can appeal from the decree or take other appropriate steps to ensure that everything was done in his presence. Logic and common sense too axe in favour of this view. The Code of Civil Procedure encourages free and fair contest and a litigant must always know the Court to which he should go for the -purpose. He was aware of the Court which sent him summons or before which he had appeared, and where a change has occurred, he should be apprised of this change; for it is his undoubted right to return to his case at any time before it was over. It is another matter, whether all that had, taken place prior to his reappearance, was or was not wiped out. I would hold therefore that the defendant was entitled to a notice after the transfer of the case to another Court and all the proceedings taken against him since transfer, shall be set aside. As the lower Court was really in error, in not sending notices to both the sides: I shall leave the parties to bear their own costs in this Court. The parties should be directed to attend -the trial Court on the 10th of October 1949. Inform the parties counsel. A. H. Appeal accepted.