1989 PLP 2431 (CLC)

This order shall dispose of application under Order 9, Rule 7 read with Section 151, C.P.C.

2. The DA. argues that from the date of filing suit till today no proceedings have been done. Therefore, if ex parte orders dated 16‑6‑1988, 30‑6‑1988 and 23‑1‑1989 are set aside plaintiff would not suffer any loss. He further argues that on 23‑1‑1989 Civil Judge was not competent to pass any order, therefore, he has referred civil suit to this Court as he was not competent to try Ist Class Civil Suits. The Advocate for plaintiffs opposed the application. I have heard arguments advanced by both the parties. At this stage civil suit is at initial stage, therefore, in the interest of justice ex parte orders dated 16‑6‑1988, 30‑6‑1988 and 23‑1‑1989 are set aside." Feeling aggrieved from aforesaid decision, present Revision Petition was filed on 22‑7‑1989. Mr. Muhammad Aslam Chishti learned counsel for petitioners contended that respondents Nos:L to 4 had not submitted any application, therefore, trial Court could not exercise suo motu jurisdiction to set aside ex parte orders dated 16‑6‑1988 and 30‑6‑1988. Secondly ex parte order against respondents 2 to 4 were competently passed and by passage of time became sufficiently meaningful, therefore, direction for setting aside the same without asserting good cause is unwarranted. Reliance was also placed on the observations of reported judgment in case Ghulam Muhammad v. Mst. Sahiban PLD 1957 Lah. 624 at p.631. On the other hand Mr. Muhammad Shafi Rakhshani learned A.A.‑G. strenuously urged that application was clearly made on behalf of all the respondents, nevertheless through inadvertence specific prayer for setting aside of ex parte orders passed on 16‑6‑1988 and 30‑6‑1988 was not made in writing. He however maintained that during arguments request for recalling all these orders was expressly made. Learned counsel canvassed that suit was still at an initial stage and no further steps were taken in the matter, subsequent to passing ex parte orders. He submitted that law insists on, adjudication of disputes on merits, therefore, procedural technicalities cannot be pressed to avert the course of law or for invoking discretionary relief in the exercise of revisioal jurisdiction. I have carefully examined available record and considered arguments addressed by learned counsel for parties. At the first instance it may be seen that, Assistant District Attorney Sibi on 30‑3‑1988 submitted application under Order 9, Rule 7 read with section 151, C.P.C. on behalf of all the four respondents, however merely order dated 23‑1‑1989 was expressly sought to be set aside. Whereas impugned order indicates that during arguments request for setting aside orders dated 16‑6‑1988 and 30‑6‑1988 was also made. Evidently remedy for setting aside ex parte order within the purview of Order 9, Rule 7, C.P.C. can be resorted to at any stage of the proceedings provided good cause is assigned for previous non‑appearance. There is absolutely no question of limitation for seeking relief in this behalf. This legal position is elucidated in case Manzoor Ahmad Bhatti v. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another PLD 1973 Lah.

659. Entire scheme of Civil Procedure Code principally aims at granting fair opportunity to the parties and promoting justice rather than defeating or averting the same. It certainly tends to eliminate hardships by providing facilities of fair contest, so that rival claims of parties could be effectively adjudicated upon. Reverting to the facts of instant case, obviously ex parte order dated 23‑1‑1989 against respondent No.l passed by Civil Judge Sibi was without jurisdiction. This legal and factual position could not be controverted by learned counsel for petitioners. However, attempt was made to emphasise that trial Court was not competent to recall suo motu, remaining two ex parte orders against respondents 2 to

4. Factually as already referred, application was made on behalf of all the respondents and during arguments setting aside of all the orders was pressed on the plea that main case was still at initial stage. Thus, trial Court finding favour with said explanation exercised discretion for recalling ex parte orders passed by it earlier. In this background it would certainly be wrong to urge that trial Court had taken suo motu action. Bare reading of Order 9, rule 7, C.P.C. suggests that, when defendant assigns good cause for previous non‑appearance, Court may permit him to answer the suit on terms deemed appropriate. Apparently this provisions of law, does not exclude verbal request for explaining good cause about previous non‑appearance. Similarly there is no cavil to legal proposition that without claiming reversal of steps already taken in the matter defendant can lawfully participate and contest subsequent proceedings. In the instant case admittedly no further steps were taken as such, recalling of ex parte orders even if on unsound grounds was apparently innocuous and does not operate to harm or prejudice the petitioners. Order 9, rule 7, C.P.C. regarding existence of good cause has wider scope and normally should be liberally construed. Following reports profitably supplement the above view:‑ (i) Mansoor Ahmad Bhatii v. Road Transport Corporation West Pakistan through Secretary of the Corporation and another PLD 1973 Lah. 659. (ii) Messrs Landhi Industrial Trading Estates, Karachi v. Government of West Pakistan through Excise and Taxation Officer "N" Division, Karachi 1970 SCMR 251. (iii) Rehmatullah v. Lal Muhammad PLD 1986 Quetta 121. (iv) Malik Haji Nazar Muhammad and another v. Water and Power Development Authority and others PLD 1986 Lah. 126. (v) Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC

678. Besides mere technicalities tending to defeat ends of justice cannot be stressed for challenging orders, otherwise promoting fair trial. This aspect finds support from the observations in case (i) M/s Vulcan Company Ltd. v. The Province of the Punjab and others 1982 SCMR

430. It is well‑settled that Revisional jurisdiction under section 115, C.P.C. is discretionary in nature. It cannot be invoked merely to correct every defect or irregularity of the trial Court but can be legitimately availed only when grave injustice or hardship is shown to have been caused on account of non or miss exercise of jurisdiction, patent illegality or perversity. These powers cannot be utilised merely for correcting minor errors or procedural defects or technical propositions which otherwise do not prejudice either party specially when impugned order on the face of it is just or proper. If authority is needed reference can be made to the observations in following reported judgments:‑ (i) Syed Arif Shah v. Abdul Hakim PLD 1986 Kar. 189. (ii) Minochar K. Kharas v. Ali Hassan Mangi and others 1986 CLC 1378. (iii) Rajasab Khan v. Mahmood Hussain and another 1986 CLC 1859. (iv) Gul Baran and others v. Abdul Zahir and another 1988 CLC 65. (v) Malik Faiz Alam v. Malik Muhammad Arshad Khan and another PLD 1986 SC (AJK) 65. (vi) Abdul Rashid v. Muhammad Shafi and others PLD 1987 SC (AJK) 55, Applying afore‑discussed principles, undisputedly respondent by showing good cause without bar of limitation could be permitted to contest proceedings at any stage. Since in the instant case, proceedings are at initial stage, and parties will now have fair opportunity for placing their respective stands before the trial Court, therefore, it would not be proper to exercise discretionary jurisdiction for interfering with fair and just order. Accordingly petition has no merits. For the foregoing reasons petition is dismissed with no order as to costs. A.A./336/Q Revision dismissed.