P L D 1961 (W (PLP)

"On the joint request of parties adjourned to 31-1-58 as parties are negotiating a compromise. The case will be taken for hear ing on 31-1-58, if compromise be not filed by then."

2. On 31st January 1958, the parties asked for adjournment for the same purpose and the case was adjourned first to the 28th February, then to 31st March 1958, then to 12th April 1958, then to 26th April 1958 and finally to 14th July 1958. On that date, although the plaintiff's counsel was present, the defendant and his counsel were absent. The counsel's munshi put in an applica tion that the counsel was away from Karachi and that the case may be adjourned. This application was not accepted and an order was passed calling upon the plaintiff to produce ex parte evidence on 16th July 1958. The defendant and his counsel remained absent on that date also and the plaintiff's evidence was recorded and an ex parte decree passed in his favour.

3. On 16th August 1958, i.e. after 31 days, an application was made under Order IX, rule 13 and section 151, C. P. C. for the setting aside of the ex-parte decree and it was contended that since the adjournment had not been made for the hearing of the case, the matter did not fall within Order IX, rule 13, C. P. C., and that being the case, the ex parte decree was illegal. This con tention was not accepted, and as the application was time barred, it was dismissed.

4. This is a first appeal from the order of dismissal and it was contended that since this was not an application under rule 13 of Order IX but one under section 151, C. P. C. the limitation of 30 days provided in Article 164 was not applicable and the case was governed by Article 181 which provides a limitation of three years for cases where no period of limitation is fixed.

5. According to Order IX, rule 6, where the plaintiff appears and the defendant does not appear "when the suit is called on for hearing", then if it is proved that the summons was duly served, the Court may proceed ex parte. Under rule 7, where the Court has adjourned the hearing 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.

6. Under rule 13, where a decree is passed ex parte, the defendant may apply for its being set aside and if he satisfies the Court that the summons were not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree.

7. These appear to be the only provisions for proceeding ex parte in a case where the defendant is absent. The provision for adjournments is contained in Order XVII, rule 1 and is to the following effect:- R. 1. (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. (2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment Rule 2 says that if the parties fail to appear on the day to which the hearing is adjourned, the Court may dispose of the case in one of the modes directed in that behalf by Order IX.

8. Now, in the present case, although the clerk of the defend ant's counsel had applied for adjournment, he did not even care to see whether an adjournment had been granted. The reason for seeking an adjournment, it has been noticed, was that the counsel was away from Karachi. When, however, an order for ex parte evidence was passed, the clerk was not present. How he or his counsel came to know about the next date is not clear, but it is alleged by the defendant that the clerk or the counsel got an impression that the next date was 16th August 1958 and not 16th July. Even the 16th of August, according to him, was the date which he understood to be for compromise and not for the hearing of the case. The defendant, who was conducting his own case, produced his counsel's brief according to which 16th of August 1958 had been fixed for compromise. This, however, falsifies the statement in the fifth ground of appeal which is to the following effect:- "Both the diary and the brief cover nothing of the advocate for the appellant also show that the next day of hearing was 16-8-1958."

9. It was, therefore, obvious that even according to the defendant the next date was for the hearing of the case, not for compromise.

10. The question, however, which has been argued is that when a case is adjourned in order that a compromise should be effected, it is not a hearing within the meaning of the provisions cited above. Whatever might be the meaning of the term "hear ing", on the facts of the present case, we have noticed that at the time of the first adjournment on the 20th December 1957 the Court expressly ordered that the case would be taken for "hearing" on 31st January 1955 if a compromise be not filed by that date, if, therefore, the parties had not asked for a further adjourn ment on the 31st January 1958 for the same purpose, the case would have been heard on that date. The further adjournments, therefore, must be regarded to be in the terms of the order passed at the time of the first adjournment, particularly when it was not stated expressly that evidence would not be recorded.

11. But if the parties understood the position to be that another date would be given for the recording of evidence if there was no compromise, then this condition also had been fulfilled in the present case, for on the 14th of July 1958, when there was no compromise, the Court ordered that evidence be heard on the 16th July following. The defendant admitted that if the order had not said that the evidence would be heard ex parte, it would be a lawful order, and I, therefore, asked him whether he could not act under rule 7 of Order IX and "at or before such hearing" appear and assign good cause for his previous non-appearance. This also, he admitted, was possible and the only asylum that he could find was in the circumstance that the clerk of the counsel had obtained a wrong date. The least that the counsel could do in order to save himself from a charge of professional misconduct was to appear with his brief and testify on oath that the date of the next hearing which he had recorded on his brief had been honestly and correctly recorded by him, so that he could have been questioned as to the source of his information and whether he had taken care to inquire from the Court or the reader as to the nature of the order that had been passed.

12. Now, as regards the contention that "hearing" is a date fixed for the recording of evidence, the language of Order XVII, rule I clearly shows that for sufficient cause the Court may adjourn the hearing of the case but that in doing so it "shall" fix a date for the further hearing. If, therefore, the hearing of the case has been adjourned, then the order must be for the further hearing of it, unless the purpose for which the adjournment takes place in a case like the present one is fulfilled in the meantime. The appellant has relied on Ghulam Farid v. Central Bank of India (P L D 1954 Lah. 575) as an authority in support of his contention. Although this is a Single Bench case, it is useful in so far as it reproduces numerous authorities on the same point. The facts of that case, however, were that the District Judge had transferred it from one Court to another and the successor Court had issued notices to the parties directing their attendance. No notice was served on the plaintiff, but in his absence, on the assumption that service had been effected, the suit was dismissed for default of appearance. The learned Judge in those circumstances observed that if the date is not fixed for the hearing of the suit, neither Order IX, rule 8 nor Order XVII, rule 2 applied.

13. Of the cases relied upon in Ghulam Farid v. Central Bank of India, mention might be made of Manohar Dass v. Birandri Sheikhupurian (A I R 1936 Lah. 280), Mst. Barkat Bibi v. Fateh Ali (A I R 1949 Lah. 432) and Grimault & Co. v. Charan Das & Sons (A I R 1934 Lah. 237). In the first of these cases it was observed that Order XVII, rule 2 applies only to cases where the "actual hearing" of the suit has been adjourned and "by the hear ing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to con sider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. But in cases where it was clearly never intended that there should be a hearing of the suit in the ordinary sense of the word, but merely some interlocutory matter decided between the parties as to the future conduct of the suit, the provisions of these rules have no application". In the present case, it was the actual hearing of the suit that was adjourned, and if there was to be no compromise, then it was understood that the hearing would be resumed.

14. In Mst. Barkat Bibi v. Fateh Ali, the facts were that the parties were summoned in order that the orders of the High Court be communicated to them "for taking necessary steps and com pliance therewith".

15. In the third case Grimault & Co. v. Charan Das & Sons, an application had been made for the amendment of issues and the Court had fixed a date for the consideration of the said appli cation, but the parties had not appeared on the date fixed. It was held that the adjournment was not for the hearing of the case. With great respect I should point out that this view is not in consonance with the other views which the learned Judge in Ghulam Farid v. Central Bank of India had adopted, because the consideration of an application for amendment did involve "ques tion relating to the determination of the suit which would enable the Court finally to come to an adjudication upon it".

16. The facts of the other rulings mentioned in Ghulam Farid v. Central Bank of India have not been reproduced but the appel lant admitted that he had not been able to find a case where an actual hearing had been adjourned for the effecting of a com promise. On the other hand, respondent's counsel has produced Syed Mazhar Hussain v. Sheikh Rafiq Hussain (A I R 1925 Oudh 645) wherein an adjournment had been obtained for a compromise and the defend ant failed to turn up at the next hearing. "It was argued that 15th January was a date fixed for a particular purpose and, there fore, an ex parte order could not have been recorded on that date. This is entirely a misapprehension of the proceedings of the trial Court * * * * * The Court in case of a compromise failing was prepared to go on with the trial on 15th January and every party was under an obligation to be present on that date. The date was fixed for proceedings and the Court could take no action as to fixing of future dates if parties were permitted to absent themselves on such a date with impunity."

17. Personally I think that apart from rule 1 of Order X VI there is no other provision which provides for an adjournment of the case and that consequently whenever there is an adjourn ment for "sufficient cause", it is the adjournment of a hearing and something in relation to the case has to be done at the next hear ing. As regards the defendant's conduct I reproduce what I observed in Kamal Din v. Muhammad Bashir (P L D 1952 Lah. 456), sitting with S. A. Rahman, J.:- "We think it appears to have been understood that once a party receives intimation of an action, it is for him to pursue it and to keep himself in touch with the proceedings, either per sonally or through his counsel."

18. The appeal is dismissed with costs. A. H. Appeal dismissed.