1990 PLP 1806 (CLC)

(2) P L D 1981SC (AJK) 223. (3) P L D 1985 Pesh. 35. (b) It was further submitted by the learned counsel for the petitioner that the trial Court fell in error to follow an authority which had not laid down the correct law and for this reason it was set aside by the Supreme Court. As against this the learned Advocate appearing on behalf of the non -petitioners (Plaintiffs) argued that the date fixed for receiving written statement or for framing of issues is a date on which the Court has to take steps for further progress of the suit as such the date which was fixed by the trial Curt for receiving written statement from the present petitioner was a date of hearing. It is further argued by the learned Advocate that on 22‑6‑1986, when ex parte order was passed against the present petitioner, the suit was fixed by the trial Court not only to receive written statement from the present petitioner but in addition to that it was also fixed for hearing arguments on the application which was submitted by the present petitioner for the vacation of stay order. As such by all means 22‑6‑1988 was the date fixed for hearing. It was further contended by the learned Advocate that after receiving the written statement, the Court could proceed with the suit and frame issues on material propositions of facts and law on which the parties were found at variance. The present petitioner by absenting himself on the date fixed, had created hurdle in quick disposal of the suit. It was further argued by the learned Counsel for the non‑petitioners that no good cause had either been alleged or proved by the petitioner in his application dated 7‑9 1988.

4. I have heard the learned Counsel for the parties and have perused the record of the case in the light of their respective submissions.

5. There is no doubt that when proceedings of ancillary nature in the suit are taken and real controversy in not to be attended by the Court in which formal order is to be passed, such date is not a date of hearing.

6. First of all I will like to discuss the authorities which were referred by the learned Counsel for the petitioner in support of his contention. First authority is P L D 1972 Lah

746. The facts of this case were that on 24th of July 1963 the date was fixed for filing of the written statement by the defendants. On this dale the defendants failed to file the written statement as such the case was adjourned toy 30th of September 1903. But however, on 26‑7.1963 the case was taken up and was dismissed in default. In this case it was observed by the learned Judge that the plaintiff was not required to do any thing on this date as such the case was wrongly dismissed in default of his appearance. In P L D 1985 Pesh. 35. it was held that application for setting aside ex parte decree was dismissed in default during very early hours of the day. Such application, should have been called again towards the end of the day. It was further observed that application for setting aside ex parte decree was Fixed for written reply as such nothing was required from the petitioner‑applicant to do on this day as such the order was recalled in revision. 1987 S C M R 733, it was held that suit was dismissed for non appearance of plaintiff on a date which was fixed for replications as such a mere interlocutory matter was fixed for the day as such the plaintiff should have not been penalized for his absence on that day.

7. These authorities are distinguishable so far as the facts of the present case are concerned. It will be in the interest of justice to reproduce the three relevant orders which were passed by the trial Court on 25‑5‑1988, 8‑6‑1988 and 22‑6‑1988.

8. A case of similar nature was heard by a Division Bench of Azad Kashmir High Court consisting of Mr. Justice Muhammad Sharif, Acting Chief Justice and Reheem Dad Khan, J. which is reported as P L D 1900 A.J.K.

10. In this case the dale was fixed for filing the written statement but defendant failed to appear on that date. It was contended by the learned Counsel for the appellant that provisions of Order 9 Rule 8 C.P.C. would not apply because the suit was not fixed for hearing. The learned Judge observed as under;‑ "Mr. Farooqi learned Counsel for the appellant has also argued that the provisions of Order IX, rule 8, C.P.C. would not apply because the suit had not been fixed for hearing but only for filing the written statements. His contention is that when evidence has to be recorded or arguments have to be heard or some decision has to be given, it amounts to a hearing not otherwise. Hearing is not only when evidence has to be recorded by the Court but also when the Court, applies its mind to the relevant claims of the parties. 27‑6‑1904 was the dale fixed for filing of the written statement of the defendants. When written statements are filed the Court records the statements of the parties and strikes issues. The recording of the statements of the parties or the striking of the issues amounts to hearing because the Court at this stage applies' its mind to the relevant claims of the parties. Disagreeing with the learned counsel for the appellant we hold that the provisions of Order IX, Rule 8, C.P.C. apply to the facts of the present case:' The proposition so laid by a Division Bench of Azad Kashmir High Court was reconsidered by a Full Bench of Azad Kashmir High Court reported as P L D 1972 AJK

7. It was held at page 11 as under:‑‑ "It was contended that as written statements were not presented the Court could not proceed with the examination of the parties and settlement of issues and as such the plaintiff should not suffer for his absence. In our view it should make no difference because if a case is fixed expressly for written statements it amounts to a date of hearing not only because the Court hears the defendant for the first time as to what he has to say against the claim brought against him by his opposite party, but also because the Court is free to proceed immediately with their examinations and the settlement of issues. 1l is important to note that Order IX, rule 8 as well as Order XVII, rule 2 has nothing to do with what proceedings actually take place on the date of dismissal but for what proceedings it had been fixed for that date. If a case is fixed for something which could be termed as hearing then the plaintiffs' absence is sufficient for its dismissal but on the other hand if it is not fixed for such hearing the plaintiff may well claim that he cannot be penalised simply because the Court could have proceeded to hear it within meaning of the word." In this authority the learned Full Bench considered the case‑law available on the subject and held that an adjournment given to a defendant for filing written statement would be deemed to be an adjournment for hearing of the suit as after riling written statement the trial Court was free to frame issues. I am bound by the view which was previously taken by the Division Bench and Full Bench of the Azad Kashmir High Court. Even otherwise, it is my considered view that date of hearing cannot be restricted only to a date which was B fixed either to record evidence or hear arguments. Any date which is fixed for the progress of the main suit that is a date of hearing. No doubt, a date which is fixed for ancillary matter and in which order of interlocutory nature are visualized, such date cannot be termed as the date of hearing. Therefore, I hold that 22‑6‑1988 was, date of hearing in the suit.

9. Now under Order 9, Rule 7, C.P.C. the defendant can move the Court seeking recall of order by which he was proceeded ex parte. But it is mandatory C for the person who wants to avail the benefit of Order 9, Rule 7 to assign good cause for his absence on the date when ex parte proceedings were ordered against him. There is difference between good cause and sufficient cause. Sufficient cause has been defined by the superior Courts as a cause which was beyond the control of the party and a strict proof of the same is required to justify the absence due to sufficient cause. Whereas the requirement of good cause is complied with on al lesser degree of proof than that of sufficient cause.

10. The present petitioner has given no good cause for his absence on 22‑6‑1988, the date on which he was required not only to file written statement but also to make his submissions in support of his application for the vacation of E stay order. He has mainly mentioned in his application dated 7‑9‑1988 that he had no knowledge of the order which was passed on that date. How was it possible to bring this order to his notice when he absented himself on that date. 11.. So far as second point raised by the learned Counsel for the petitioner is concerned, it has no substance. No doubt, the decision was set aside by the Supreme Court of Azad Jammu and Kashmir, as it is apparent from the authority which is reported as P L D 1983 SC (AJK)

223. In this authority the Supreme Court has not disturbed the legal proposition which was laid down in the authority of the High Court. The learned Judge of the High Court had in fact followed the same principle of law which was laid down by the High Court in the previous decisions. The Supreme Court set aside the judgment of the High Court on the ground that the date 28‑8‑1979 was not fixed for hearing of the case but it was merely meant for the purpose of informing the Court about the action to be taken by the plaintiff, as such this date was not treated to be a date of hearing. But from this angle too the judgment under revision has in fact followed the law of the superior Courts of Azad Kashmir and no illegality has been committed. As such this objection of the learned Counsel for the petitioner is also repelied. The petitioner is entitled to associate himself with the proceedings of the suit because provision of Order 9 Rule 7 can be invoked with respect to the setting aside of the ex parte proceedings, it does not mean that once the defendant has failed to appear, he is debarred from appearing and participating in the proceedings for all future dates. The upshot of the above discussion is that finding no force in this' revision petition, it is hereby dismissed. No order as to the costs. A.A./412/H.C.A Revision dismissed.