1992 MLD 1116 (PLP)

Respondent No.1, Muhammad Hassan, was a tenant of one Dr. Asmat Zakia in House No.G‑1, situated in North Karachi. He filed a suit (Suit No.2124/84) in the Court of Tenth Civil Judge, Karachi, West, seeking permanent injunction to restrain the applicants from forcibly dispossessing him from the suit property. The applicants appeared before the. Court in response to the summons issued thereby on 18‑6‑1984, however, thereafter, they failed to file a written statement before the Court and continued to obtain several adjournments in this regard from the Court. On 29‑7‑1986 the case was adjourned to 26‑8‑1986 for filing of a written statement which was the last extension granted by the Court in this regard. However, still the applicants not only failed to file a written statement but they also remained absent from the Court on the said date. Consequently, it was ordered that the case of the applicants would proceed ex parte against the defendants. Thereafter, admittedly no immediate attempt was made by the applicants to get the ex parte order set aside. On the other hand the applicants went on making applications seeking extension of time to file the written statement. However, each time their request for grant of time was declined by the learned trial ‑Court. At last on 7‑2‑1987 the counsel for the appellants moved an application for setting aside the ex parte order, but the same was rejected on the ground that it was time‑barred and no application for condonation of the delay had been tiled. Thereafter, the matter proceeded further and the learned trial Court even allowed an application filed by the respondent No.1 for an interim injunction and ultimately on 31‑3‑1987 the suit of the respondent was decreed ex parts against the applicants. It is pertinent to point out that no evidence had been recorded in the matter by the learned Court. However, aggrieved by the said order, the applicants riled appeal before the learned District Judge, Karachi West, but the order of the learned trial Court was upheld and hence the present revision.

2. It may be pointed out that the order passed by the learned trial Court, dated 26‑8‑1986, whereby the ex parte proceedings against the applicants were ordered, fails to indicate whether the same had been purportedly passed under Order 17, Rule 2, C.P.C. or Order 8, Rule 10, C.P.C. Order 17, Rule 2 provides as follows:‑‑ "

2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit." Order 8, Rule 10 provides that:‑‑ "

10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

3. Mr. Khalilur Rahman, learned counsel for the applicants has argued that a date fixed for filing of a written‑statement was not a date of hearing and consequently, neither Order 17; Rule 2 nor Order 9, Rule 6, C.P.C. was attracted, and therefore, the learned trial Court could not order ex parte proceedings against the applicants. Reliance has been placed upon Mahmood Ahmad v. Feroze Din 1991 M L D 875 which supports the aforesaid proposition. In this case the learned Chief Justice of the Azad Jammu and Kashmir High Court while referring to earlier decisions of the Lahore High Court P L D 1971 Lah. 746 and the Supreme Court of Azad Jammu and Kashmir P L D 1983 SC (AJ &K) 223 has held that `hearing of suit' would imply that stage of a trial in a civil action when the Court has to apply its mind to the matter in controversy between the parties and hence a date fixed for filing of a written statement cannot be construed as a date of hearing in the case.

4. Assuming that Mr. Khalilur Rahman is right, the order, dated 26‑8‑1986 could still be validly passed under Order 8, Rule 10, C.P.C. Under the said provision, the learned trial Court could either immediately pronounce judgment against the applicants without even recording evidence in the case, on their failure to file a written statement o:, 26‑8‑1986 or in the alternative, it could proceed under Order 9, C.P.C. or pass any other order it deemed fit. As is evident from the order, dated 26‑8‑1986, the learned trial Court adopted the alternative course. However, what appears to have escaped notice of Mr. Khalilur Rahman is the fact that the learned Court after ordering the case to proceed ex parte against the applicants, decreed the suit against them without recording any evidence in the case. When ex parte proceedings were ordered against the applicants it was imperative on the learned trial Court to record evidence of the plaintiff in the case. Until such evidence was recorded, the case could not be decided on merits. No doubt, ex parte proceedings would mean proceedings without any contest from the defendant but still the same does not mean that he should be completely debarred from taking any part in the proceedings. The defendant can still cross‑examine the plaintiff's witnesses and take part in the arguments. The course adopted by the learned trial Court was, therefore, not proper. The learned appellate Court has nevertheless upheld the impugned order by holding that the case had been disposed of under Order

17. Rule 3, C.P.C. The view taken by the learned appellate Court, however, does not appear to be correct as there was no material before the learned trial Court upon which its judgment could be based. Order 17, Rule 3 was therefore, not attracted to the facts of the present case.

5. In the result, I set aside both the judgments of the learned Courts below and remand the case to the learned trial Court for proceeding afresh in accordance with the law. Since as pointed out by Mr. Khalilur Rahman, written statement has already been filed by the applicants, the learned trial Court shall consider their request for condonation of delay if any made before it and a case is made out for extension of time for filing of the same. In case the learned trial Court declines to grant the applicant's request, then it can no doubt proceed ex parte in the matter but after calling upon the respondent No.1 to adduce evidence in ex parte proof. The revision application is, therefore, disposed of in the above terms with no order as to costs. A.A./B‑202/K Case remanded.