P L D 1969 Karachi 17 (PLP)

Date of hearing : 19th December 1966. This revision application is directed against the order of the Civil Judge, First Class, Nawabshah dismissing the applicant's application under Order IX, rule 13, C. P. C. and the order dated 29th October 1965, of the Additional District Judge, rejecting the applicant's appeal from the order of the Civil Judge.

2. The material facts are these. The applicant is a Games Inspector in the service of the Government of West Pakistan and was, at the time relevant in this case, posted at Dadu. The respondent No. 1 is a Zamindar of Nawabshah, and respondent No. 2 is his employee. The respondents obtained two permits from the Chief Games Warden, Lahore, for permission for each. of them to shoot one ibex in the Kirthar hills of Dadu District. They then organised a Shikar party and proceeded to the Kirthar hills. Near Thano Bala Khan they shot two ibex, on way back to Nawabshah the respondents were met by applicant near Bolari crossing. The applicant suspected that the respondent No. 2 had shot ibex in contravention of the West Pakistan Wild Life Protection Ordinance, 1959. On his complaint this respon dent was prosecuted in the Court of Civil Judge and First Class, Magistrate, Kotri under sections 4 and 6 of the Ordinance. The prosecution, however, resulted in the acquittal of the respon dent.

3. The two respondents then filed Suit No. 16 of 1964 in the Court of Civil Judge, First Class, Nawabshah for recovery of Rs. 6,000 as damages. This claim included a sum of Rs. 4,121.. on account of the expenditure alleged to have been incurred by the respondent No. 1 for foodstuffs and transport charges for the Shikar party, permit fees and cost of visit to Lahore for procuring the permits, and expenses incurred in the defence of the respondent No. 2 against prosecution under the Wild Life Protection Ordinance. Rs. 482 were claimed on account of the wages paid to the beaters, watchers, watermen and. cooks in connection with the Shikar. A sum of Rs. 1,397 was claimed on account of "mental and physical injury and incon venience".

4. The defendant in the suit were the present applicant and the Government of West Pakistan. The applicant received summons of the suit at Dadu, directing him to appear in the. Court of the Civil Judge at Nawabshah on 29‑5‑1964. It is the: case of the applicant that he was ill during these days, and accordingly he sent an application with medical certificate, to the trial Court by registered post for adjournment of the case. This application was followed by a telegram to the trial Court, in which the request for adjournment was repeated. The applicant also moved his superior officers to make arrangements for his defence in the suit as he was being sued in his official capacity. It appears that on the date of hearing namely, 29‑5‑1964, the trial Court did not take any action on the, application for adjournment. There was no appearance on behalf of the Government of West Pakistan also. The Court therefore, ordered the suit to proceed ex parte against both the defendants and adjourned the hearing to 7‑7‑1964 for ex parts proceedings. No information of this adjourned date was given to either of the defendants in the suit. The Court recorded the evidence of the respondents on 7th, 10th and 23rd July 1964 and on 27‑7‑1964, the Court decreed the suit for Rs. 3,000 against the applicant only. The claim for Rs. 6,000 was held to be exaggerated, but the trial Court took the view that the respondent No. 1, being a member of the ex‑royal Talpur family Rs. 3,000 would be adequate and reasonable compensation. It was not made clear in the judgment as to whether this sum of Rs. 3,000 was awarded as compensation for malicious prosecution of the respondent No. 2, or to the respondent No. 1 for the expenditure allegedly incurred by him in organizing the Shikar party.

5. The applicant has stated in his affidavit filed in this Court that he came to know of the ex parte decree against him only on 24‑9‑1964, when he received from the trial Court notice of the application for the execution of the decree. The applicant thereafter applied to the Court under Order IX, rule 13, C. P. C. for setting aside the ex parts decree. This application was rejected on 27‑1‑1965 on the ground that it had been made two months after the date of the decree, and, therefore, was barred by limita tion under Article 164 of the Limitation Act, under which such an application is required to be made within 30 days of the date of the decree. The Court also held that as the applicant had knowledge of the filing of the suit, and had also made an application by post for adjournment of the hearing, he should be deemed to have knowledge of the date of the decree also.

6. I have gone through the record of the case and have regrettably come to the conclusion that the procedure adopted by the Court below in the trial of the suit was, to say the least, irregular and unsatisfactory. The applicant met the two respondents near Bolari crossing, which is situated in Dadu District. The respondent No. 2 was prosecuted in the Court of the Civil Judge and First Class Magistrate of Kotri, which place is in the District of Hyderabad. The cause of action could, therefore, be said to have arisen either in Dadu or in Hyderabad. According to the occurrence of the cause of action, the suit for malicious prosecution could have been instituted in either of these two districts only, and according to the residence and place of work of the applicant in Dadu alone. It is, therefore, not understood how the Civil Judge, Nawabshah, assumed jurisdiction in the suit against the applicant and the Government of West Pakistan. Mr. Naimuddin, the learned Advocate for the respondents, did not contest the position that the trial Court had no jurisdiction to entertain this suit, but he took his stand on section 21 of the C. P. C., under which objection as to the place of suing cannot be allowed by am Appellate or Revisiona1 Court unless such objection is taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such in the present case. The petitioner was posted in Dadu District, and it would ordinarily be difficult for him to defend the suit filed against him in his official capacity at Nawabshah. But Mr. Naimnddin contended that no objection to jurisdiction was taken by the applicant at the earliest possible opportunity. It may be so, but the actual position is that the applicant was not given any opportunity to raise this objection. The summons served on the applicant directed him to make appearance on 29th May 1964. But on this date the applicant was ill and was unable to attend the Court and, therefore, applied for adjournment of the hearing to some other date. This application was not granted, and Mr. Naimuddin was unable to state as to what were the reasons which pursuaded the trial Court to disregard this application and to order the suit to proceed ex parte and to fix 7tb July 1964, for this purpose. I cannot understand why the application for adjournment was not accepted when the hearing of the case bad in any case to be postponed to another date. It may be noted that even if the applicant had made appearance on 21‑5‑1964, the suit would not have proceeded on this date, as time would have had to be given to the defendants for filing written statements, and in the case of the Government of West Pakistan, this time would be three months as the suit was filed without any notice under section 80, C. P. C. to either of the defendants.

7. The trial Court does not also appear to have given any consideration to the frame of the suit. The suit was filed by both the respondents, and the cause of action was stated in paragraph 35 of the plaint to be the detention by the applicant of the respondents on 15‑1‑1964, and the acquittal of the respondent No. 2 by the Civil Judge and First Class Magistrate, Kotri, on 24‑3‑1964. Apparently, this cause of action is one for malicious prosecution. But the respondent No. 1 was himself not prosecuted, and he could not claim compensation for the prosecution of the respondent No.

2. The relief claimed in the suit was damages, both for prosecution of the respondent No. 2 and for expenditure incurred by the respondent No. 1 in organizing the hunting expedition. These were separate causes of action, and their misjoinder was apparent on the face of the plaint. Further, in decreeing the suit, the trial Court ignored the legal requirements for proof of the quantum of compensation. The claim for Rs. 6,000 was held to be exaggerated, but no trouble was taken to ascertain whether damages in the sum of Rs. 3,000 had also been proved or not. In decreeing the suit for this amount, the main consideration which guided the trial Judge was that the respondent No. 1 was a member of the ex‑royal family of Sind. But this alone could not be the basis for awarding damages of Rs. 3,000 against the applicant.

8. Notwithstanding these irregularities, Mr. Naimuddin has contended that the order rejecting the application. under Order IX, rule 13, C. P. C. cannot be interfered with, because this application was not made within 30 days of the date of the applicant did not come in revision against the order directing the suit to proceed ex parte, or even against the ex parte decree no relief can be given to the applicant now. Be that as it may, I do not agree that this Court is powerless to correct the irregularities of the trial Judge. As laid down by their Lordship of the Supreme Court in Muhammad Swaleh v. United Grain and Fodder Agencies (PLD 1964 S C 97) I can set aside the order made on 29‑5‑1964 for taking ex parte proceedings in the suit and the ex parte decree based on this order. In view of their irregularities I have noted above, I am of the view that it is a fit case in which I should suo motu exercise the revisional jurisdiction of this Court under section 115, C. P. C. with regard to this order and the ex pane decree.

9. But Mr. Naimuddin contended that the rule laid down in Muhammad Swaleh v. United Grain and Fodder Agencies is no longer applicable, because this case went in appeal to the Supreme Court from a decision of the High Court which was given on 29th September 1961, when the Limitation Act did not contain Article 162‑A, which prescribes limitation period of 90 days for revision by the High Court of the decisions of the subordinate Courts. This article, learned counsel pointed out, was inserted in the Limitation Act by the Limitation (Amendment) Ordinance (XLIII of 1962) which came into effect on 7th June 1962. In my opinion, this article did not circumscribe the power of the High Court to suo motu exercise its revisional jurisdiction under section 115, C. P. C. But in any case Mr. Naimuddin's argument ignores the Limitation (Amendment) Act (II of 1963), which came into force on 3rd August 1965 and omitted from the Limitation Act, Article 162‑A. Thus, there is now no limitation period for exercise of the High Court's revisional jurisdiction. Nor was there any such limitation on 19‑1‑1966 when the present revision application was filed in the High Court.

10. For the reasons I have discussed above, I would set aside the order by which Suit No. 15 of 1964 was ordered to proceed ex parte and also the ex parte decree in the suit. The suit now will be heard from the stage at which it was on 29th May 1964. The orders of the trial Court decreeing the suit ex parte and rejection of the application under Order IX, rule 13, C. P. C. and the order of the Additional District Judge dismissing the appeal from this order, are also set aside. The respondents will pay the applicant's costs in all Courts. A. E./S. A. H. Application allowed.