1992MLD971 (PLP)

Under mentioned facts of this case which have led to the filing of the present writ petition against a judgment dated 19‑11‑1991 of learned District Judge, Attock, disclose how, unfortunately sometimes, events take a disturbing turn of a tell‑tale nature in our Courts. A brief reference to them therefore is necessary: On 21‑7‑1987, Syed Inayat Ali Shah instituted a civil suit against Mian Khan, Sher Zaman, Khan Zaman and a Consolidation Officer of Attock, to have it declared from the Court, that he occupied 50 Kanals of land in Khasra No.49 as its owner on the basis of adverse possession and consequent adjustment of land measuring 44 Kanals, and, one Marla in Khasra Nos. 360 361 in favour of Mian Khan and Khan Zaman, defendants. Nos. 1 and 3, was null and void. In the alternative, a decree for actual possession of the land given in consolidations to defendants Nos.1 and 3 was sought. The. suit was instituted, in' the Court of Senior Civil Judge. Attock, who kept it on his own file for trial. Suit was registered in his Court and summons for settlement of issues were issued to the defendants for 23‑9‑1987. On the latter date, defendants Nos.1 and 2 appeared through Mian Abdul Haq, Advocate, who filed his power‑of‑attorney on their behalf. Defendants Nos.3 and 4 were proceeded against ex parte, as they had not appeared despite stated service of summons upon them. After noting the presence and absence of the respective defendants as indicated above, learned Senior Civil Judge adjourned the suit to 12‑10‑1987 for taking written statement from defendants Nos. 1 and

2. On 12‑10‑1987, the aforesaid defendants, submitted their written statement and conceded the claim to the plaintiff. However, the case was adjourned "for further proceedings" on 19‑10‑1987. On the adjourned date, after noting the presence of the counsel for the parties, the case was adjourned for hearing of arguments on 8‑11‑1987. However, on .the adjourned date, the case took a different turn. Instead of hearing arguments, as was observed in the previous order, the trial Court postponed the suit to 12‑1‑1988 for taking ex parte proof from the plaintiff. On 12‑1‑1988, plaintiff recorded his own statement as P.W. 1 and produced as many as seven documents consisting of copies of Revenue Records and the decisions of Collector (Cons.), Additional Commissioner (Cons.) and memorandum of an appeal. After taking the above material on record, the case was adjourned for hearing of arguments on 16‑2‑1988. On 16‑2‑1988, the Court could not hear arguments because of its being pre occupied with old matters and adjourned it to 9‑3‑1988. On 9‑3‑1988, it heard arguments and adjourned the case to 28‑3‑1988 for announcement of the judgment. On 28‑3‑1988, the Court noted that the counsel for the plaintiff wanted to cite an authority and address more arguments. Consequently, the case was again adjourned for hearing further arguments on 11‑4‑1988. On 11‑4‑1988, the Court recorded that the "authority" (photostat) was produced and adjourned the case for examination of the "authority" and pronouncement of judgment on 26‑4‑1988. On this date, the Court made final order for an ex parte decree to the plaintiff. The order runs as follows:‑ "Counsel for the plaintiff present. Defendants Nos.1 and 2 absented themselves today. As usual ex parte against the defendants Nos.3 and

4. In the light of cognovit filed by the defendants Nos.3 and 4, on 12‑10‑1987, this suit is decreed in favour of the plaintiff and against the defendants. The decree is ex parte ,against the defendants Nos.3 and

4. P. Sd/‑ Senior Civil Judge, Attock" The decree prepared by' he Court reads:‑‑ "This suit coming on this 26th day of April (it should be April), 1988, for final disposal before me (Malik Ata Rasool Joya, Senior Civil Judge, Attock) in the presence of Sh. Muhammad Azim, Advocate, counsel for the plaintiff and Mian Abdul Haq Shard Advocate, counsel for the defendants Nos.1 & 2 and ex parte against the defendants Nos.3 and

4. It is hereby ordered that in the light of cognovit filed by the defendants Nos.3 and 4 on 12‑10‑1987, this suit is decreed in favour of the plaintiff and against the defendants. The decree is ex parte against the defendants Nos.3 and

4. Given under my hand and seal of the Court this 26th day of April, 1988. Sd/‑ Senior Civil Judge, Attock" On 1‑9‑1988, defendant No.3 (Khan Zaman) filed an application under Order IX, rule 13 of Civil P.C. for setting aside of the ex parte decree against him. It was stated that he was neither served nor had knowledge of the suit against him, and, thus, ex parte decree passed against him was liable to be set aside. Plaintiff resisted the application and submitted that the applicant had no locus standi to come in; application for setting aside of the ex parte decree was barred by limitation. On 10‑7‑1989, the trial Court framed following issues for determination: (1) Whether the petitioner has no cause of action to bring this petition? OPR. (2), Whether the petition is not maintainable in the present form? OPR. (3) Whether the petition is time‑barred? OPR. (4) Whether there are sufficient grounds to set aside ex parte decree dated 26‑4‑1988? OPP. (5) Relief. After framing of the above issues, the case was postponed for taking evidence of the applicant. On 19‑6‑1990, issue No.3 was re‑cast as follows:‑ "Whether the petition is within time?" Applicant Khan Zaman appeared himself as P.W.1 and closed his evidence. Plaintiff produced two witnesses; a bailiff of the Civil Court and village postman R.W.1, R.W.2 and himself appeared as R.W.3 and closed his evidence. On 9‑10‑1991, learned Senior Civil Judge dismissed the petition holding it as barred by limitation. It was held that in the absence of a separate application under section 5 of the Limitation Act, delay could not be. condoned. In taking this view, the learned Judge relied upon a decision reported as PLD 1962 (W.P) Pesh.

21. This finding was recorded on issue No.3. Issue No.2 was not pressed. As for issue No.1, it was decided against the applicant (Khan Zaman), in view of the findings recorded on issues Nos.3 and

4. As regards issue No.4, it was observed, that it had become redundant. This order of learned Senior Civil Judge was assailed in appeal before learned District Judge, Attock, which eventually culminated in setting aside of the ex parte decree by him and remand of the suit for its decision on merits. In his judgment, the learned District Judge observed on the conduct of learned Senior Civil Judge, who had earlier dealt with the matter and had passed an ex parte decree. He sent copy of his judgment to Registrar of the High Court for information. It may be observed for purposes of clarification that the ex parte decree was made by Malik Ata Rasool Joya, the then learned Senior Civil Judge, Attock and now an Additional District Judge, Rawalpindi, whereas the application for setting aside of the ex parte decree was dealt with by another Senior Civil Judge. It may also be of significant note to record that no finding was given by the Court on sufficiency of service upon the applicant in the final order. . It was contended by Malik Muhammad Jaffar, learned counsel for the petitioner that the learned Judge below was bereft of power to exercise revisional jurisdiction, when an appeal lay to his Court, and, therefore, the impugned order was coram non judice. It was argued that the appeal had to be dealt with within its own legal confines and a jurisdiction foreign to it could not be called in aid to strike at the impugned ex parte decree. On merits, learned counsel felt some difficulty in supporting the ex parte decree and more particularly its this aspect that it contained no reference to the ex parte proof taken on file. Without attempting an exhaustive examination of the first point taken by the learned counsel that in case an appeal lay to the Court, its revisional jurisdiction was excluded, I propose to confine only to reviewing the legality/propriety of the ex parte decree and justness for interference in equitable jurisdiction. Under Order IX, rule 6, Civil P.C., the Court had a discretion either to pass decree without recording evidence or to take ex parte proof from the plaintiff in support of his claim. The Court had to make up its mind, when proceeding ex parte against the absenting defendants. From the aforequoted narrative, it is evident that the Court while proceeding ex parte against the absenting defendants, chose to take and record ex parte proof. The course adopted by the Court was consistent with the ordinary practice of the Courts to record evidence in ex parte matters so as to avoid any injustice or allowing an undue benefit to a party in absence of the other. Having adopted this course and taken evidence oral as well as documentary from the plaintiff, it looked a little strange that the Court neither reviewed the evidence nor referred to it in the final judgment, which consisted of few lines only. Despite my best efforts, I could not persuade myself to agreeing with the manner of disposal of the suit by the Court presided over by an experienced Civil Judge. Since the matter is 41 already under review on administrative side of the Court, I would not offer further comments. As for the ex parte decree itself, record could not sustain it, and, therefore, it was rightly set aside by the learned Judge below for allowing a fair chance to the parties to contest on merits. In this view of the matter, it shall not be an equitable exercise of jurisdiction to cause interference with the order which otherwise appeared to be just and legal. Writ petition is accordingly dealt with and disposed of in limine. Before leaving the matter, I may observe that all said and done, the impugned order must be taken to be confined to the decision for setting aside of the ex parte decree only and nothing beyond it. What I intend to observe is that the impugned decision shall not affect the decision of the remanded suit on its merits in accordance with law. Records be returned to their appropriate place. Copy of this judgment may be sent to Hon'ble the Chief Justice. A.A./I‑14/L Petition dismissed.