P L D 1973 Lahore 659 (PLP)

Wasim Sajjad for Respondent No.

1. Zia Mahmood Mirza for Respondent No.

2. Dates of hearing: 31st May and 1st June 1972. This revision is directed against an order passed on 6‑9‑1967 by Mr. Aqeel Ahmad Khan, P. C. S. Civil Judge 2nd Class, Sialkot allowing an application for setting aside ex parte proceedings taken against respondent No. 2 in a suit filed by the petitioner. The facts are that the petitioner filed a suit for recovery of Rs. 10,000 as damages against the Board Transport Corporation and G. T. Bus Service Ltd. Gujranwala. According to the plaint, the petitioner was travelling on 20‑8‑1963 in a Mini Bus when it met a headlong collision with a Bus owned by the G. T. Bus Service and the petitioner received a number of injuries. The suit was filed on 1‑9‑1964 and summonses were issued to the defendants‑respondents for 3‑11‑1964. It appears that, by private arrangement between the shareholders of the G. T. Bus Service Ltd., that Company was sub‑divided into groups and the buses of the Company were also divided. The service of summons on the Company was effected by leaving the summons in the Principal Office of the Company and not in the office of the group to whose share the Bus, which is alleged to be responsible for accident, had fallen. The Manager of the G. T. Bus Service reported on the summons that no vehicle of their Company was involved in the accident. On the basis of this report, the learned trial Court considered it to be a service by refusal and thus sufficient service on defendant‑respondent No.

2. Ex parte proceedings were ordered to be taken against G. T. Bus Service Ltd., but as Road Transport Corporation, respondent No. 1, was not served, fresh summons was issued to that respondent for 4‑12‑1969. Defendant‑respondent No. 1 contested the suit and the written statement gave rise to a number of preliminary issues, some of which were decided on 9‑5‑1966, and issues on merits wore framed on 14‑5‑1966. On the next date viz. 29‑6‑1966, the evidence of two witnesses was recorded and the case was adjourned to 21‑7‑1966. Again some evidence of the plaintiff‑petitioner was recorded on 20‑9‑1966 and the case was then adjourned for the rest of the evidence. On 19‑6‑1967, however, an application was submitted by the G. T. Bus Service, Gujranwala, for setting aside the order of proceeding exparte passed against them on 3‑11‑1964. This application was contested by the petitioner inter alia on the ground that the application was submitted after a delay of two and a half years when the case had already come up for hearing on a number of dates. The pleadings of the parties gave rise to the following issues:‑ (1) Whether the application is within time? OPD (2) Whether there exists any sufficient ground for setting aside ex-parte proceedings against the applicant? OPP These issues were decided against the petitioner and the order of proceeding ex parte was set aside on payment of Rs. 125 as costs. Hence this revision petition. This case came up for hearing on 6‑3‑1972 when the learned counsel for the respondent raised an objection about the maintainability of the revision petition filed by the petitioner who had received costs and thus acquiesced in the impugned order. In order to ascertain the correctness of this assertion the record of the trial Court was summoned and it was found that the costs were received under protest. The receipt of costs is not therefore fatal for the maintainability of the revision petition. The learned counsel for the petitioner raised an objection that in view of the provisions of the Law Reforms Ordinance (XII of 1972), this revision petition was not competent before the High Court because under the amended section 115 of the Code of Civil Procedure the power of hearing revision petitions against the order of a Civil Judge in cases where the amount or value of the subject‑matter did not exceed the limit of the appellate jurisdiction of the District Court, had been conferred upon the District Court and he requested that the case may be transferred to the District Judge. The learned counsel argued that section 115 was only a procedural provision and its amend ment is therefore retrospective and will apply even to pending cases. This question hardly arises in the present case because even if the amendment be held to operate retrospectively the High Court will still have the concurrent revisional jurisdiction and its jurisdiction will be barred only in case where revision against the same impugned order has been made to the District Court. In fact section 115(2) places an embargo on the power of the District Court to entertain a revision petition if once an application under subsection (1) of section 115 has been made to the High Court. The only point urged on merits by the learned counsel for the petitioner was that under Order IX, rule 7 an applica tion for setting aside the order of proceeding ex pane could be made only on or before the next date of hearing following 3‑11‑1964 when the ex parte order was passed. In order to appreciate this contention, It is necessary to reproduce the relevant portions of Order IX, rules 6 and 7:‑ "6. (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑ (a) if it is proved that the summons was duly served, the Court may proceed ex parte.

7. Where the Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non‑appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." The argument of the learned counsel for the petitioner is that the words "such hearing" in Order IX, rule 7 refers to the date to which the case was adjourned for hearing after passing ex parte order and the application for setting aside the Ex parte order could be submitted on or before 14‑12‑1964. According to the learned counsel a period of limitation has been prescribed by Order IX, rule 7 for such an application. The interpretation placed by the learned counsel for the petitioner on rule 7 is too narrow. The object of Order IX, rule 6 is to make it permissible for the Court to proceed in the absence of defendant if he does not appear and contest the suit of the plaintiff. The Court may take evidence and decide the suit on the first date of hearing. If summons is .issued to the defendant for final disposal of the case, the plaintiff may be in a position to produce ex parte evidence. If however, the date of hearing for which the summons has been issued is only to enable the defendant to answer the claim, it may be necessary to adjourn the suit for ex parte evidence. Sometimes repeated adjournments may be necessary under Order XVII, rule 1 of the Civil Procedure Code to enable the plaintiff to prove his case. But the defendant may have good cause for non‑appearance on the earlier date and may like to contest the suit. Rule 7, therefore, empowers the Court on the defendant's appearing and showing good cause for his previous non‑appearance, to hear the defendant in answer to the suit as if he had appeared on the date of the first hearing. In deciding such application the Court should liberally exercise its powers in favour of the defendant because, as observed by their Lordships of the Supreme Court in Landhi Industrial Trading Estate Ltd. v. Government of Pakistan (1970 S C M R 251), the rules of procedure as laid down in C. P. C. are principally intended for advancing justice and not for retarding it on pure technicalities. The object of the Code is to give the parties to a litigation full opportunity of being heard and to advance their intention the provisions of Order IX, rule 7 should be generously construed. The opening phrase of Order IX, rule 7 "Where the Court had adjourned the hearing of the suit ex parte" is wide enough to include not only the adjournment as a matter of right or the first adjournment in a case where the summons had been issued for framing of issues only, but also successive adjournments given under Order XVII, rule 1 of the Code of Civil Procedure. The terminus a quo for an application to set aside the ex parte order will be the date when the case is actually heard. This also appears to be the view of the Supreme Court of India as is clear from the following observations in the case of Arjan Singh Mohinder Kumar (A I R 1964 S C 993): "The entirely of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, rule 7 if the defendant appears on such adjourned date and satisfies the Court for showing good cause for non‑appearance on the previous day or days, he might have the earlier proceedings recalled "set the clock back"‑and have the suit heard in his presence." The word "days" which I have underlined* shows that in the opinion of the Supreme Court of India successive adjournments were within the ambit of Order IX, rule

7. The next question is whether the last date of hearing is the date when the judgment is pronounced or some earlier date. This depends upon the interpretation of word "hearing". The word "hearing" has been defined in a number of authorities as the date on which either the evidence is recorded or the arguments are heard or other steps are taken by the Court towards further proceedings in the case‑See Mat. Barkat Bibi v. Fateh Ali (P L D 1949 Lah. 432 (2)), Messrs Ghulam Farid and another v. The Central Bank of India Ltd., Lahore (P L D 1954 Lah. 575), Sh. Ghulam Mujtaba v. Noor Muhammad Khan (P L D 1964 B J 85). Writing or pronouncement of judg ment is the ultimate function of the Court alone and stage for it comes after the hearing of a case is concluded. The last date of hearing will be the date when the Court becomes competent to pronounce judgment. An application under Order V '' rule 7 can be made at any time before this date. This wider interpretation harmonises with and advances the object of the rule and finds support from the established proposition that rule 7 does not debar a defendant from appearing and participat ing in the proceedings for all future stages and although an absentee defendant is not relegated to the position he would occupy if he had appeared unless he shows good cause for non‑appearance he cannot be estopped from participating in the proceedings, Ghulam Muhammad v. Mst. Irshad Begum (P L D 1964 Lah. 782) a Habib Ismail Bajwa v. Kh. Ghulam Mohy-ud‑Din (P L D 1970 Lah. 428). Order IX, rule 7 does not as such provide for a period of limitation. There are two rules which enable a defendant to apply for setting aside the ex pane proceedings taken against him. During the pendency of the suit such an application is com petent under rule 7 while after the passing of the ex parte decree application is maintainable under rule

13. Up to the stage when the case becomes ripe for pronouncing judgment, Order IX, rule 7 would apply and once the case has become ripe for this purpose the defendant is to watt for the passing of the ex parte decree and he can approach the Court under rule

13. It would be an anomaly if, on the one hand, f is held that without getting the ex parte order set aside the defendant can participate in proceedings up to the time when the case becomes ripe for the pronouncement of the judgment: and, on the other hand, rule 7 is interpreted as debarring the defendant from making an application for setting aside the ex parte order after the expiry of the first adjourned date In majority of cases such participation may not be of any advantage to the defendant unless the Court recalls its earlier order and sets the clock back. The revision petition has no force and is dismissed but there will be no order as to costs. S. A. H. Petition dismissed.