1995 PLP 923 (MLD)

3. On 5‑12‑1987, the defendant did not appear and the learned trial Court struck off his defence and adjourned the case to 16‑12‑1987. On the said date the defendant did not appear and after hearing the arguments of the petitioner‑plaintiff, the learned trial Court decreed the suit. This judgment and decree was challenged in appeal and the Additional District Judge vide the impugned judgment set aside the judgment and decree and remanded the case to the learned trial Court for fresh decision on the following grounds:‑‑ (i) That the appellant has given affidavit that he was sick and could not appear before the learned trial Court and precisely for this reason he filed the appeal with a delay of five days. As no counter‑affidavit had been filed by the petitioners‑plaintiff, the learned appellate Court considered it a sufficient cause and the delay in filing the appeal was condoned; and (ii) That the Courts should administer substantial justice and should not be bound down by technicalities.

4. In support of this petition, the learned counsel for the petitioner has submitted that the appeal was barred by five days; that sufficient cause was not shown by the respondent‑defendant to justify condonation and that the learned trial Court should have considered the effect of lack of substantial reason rather than condoning the delay merely for non‑submission of a counter affidavit. In support of his pleas, the learned counsel for the petitioner has referred to the following case‑law:‑‑ (i) Commissioner of Income‑tax v. Rais Pir Ahmad Khan 1981 SCMR 37; (ii) Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157; (iii) Government of Balochistan v. Juma Khan 1994 MLD 2315; and (iv) Punjab Province through Secretary, Agriculture etc. v. Faqir Muhammad etc. 1987 CLC 1641.

5. The learned counsel for the respondent‑defendant has, on the other hand, submitted that only one adjournment was sought by the respondent defendant for producing the evidence whereas the petitioner‑plaintiff's evidence could not be produced on many dates. He pointed out that almost two years were given to the petitioner‑plaintiff to adduce evidence and the respondent‑defendant's evidence was struck off in one month's time. On the question of sufficient cause and condonation of delay, the learned counsel submitted that a medical certificate was appended with the affidavit showing that the respondent‑defendant could not. appear on account of sickness. This affidavit remained unchallenged and the learned appellate Court rightly condoned the delay and remanded the case for fresh decision after recording evidence of the parties. He relied on:‑‑ (i) Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79 and (ii) Ghulam v. Mst. Malkani 1992 CLC 2123. to bring home the point that the judgment of the learned appellate Court does not call for interference.

6. I have heard the learned counsel for the parties, have also gone through the record and precedent case‑law relied upon by both the sides.

7. A perusal of the record indicates that in a period of two years i.e. from 5‑12‑1985 to 13‑10‑1987 several adjournments were given for recording of plaintiff's evidence. On 13‑10‑1987, the oral evidence was completed and the plaintiff‑petitioner had agreed to produce his documentary evidence. The case wag, however, adjourned to 3‑11‑1987 for recording of the evidence of respondent‑defendant. On this date, the respondent‑defendant's evidence was not available and the case was adjourned to 22‑11‑1987. Even on this date, respondent‑defendant's evidence was not produced and the case was adjourned to 5‑12‑1987 by awarding a cost of Rs.20 on the defendant. On 5‑12‑1987, neither the defendant nor his learned counsel appeared and the learned trial Court directed that the defence or defendant be struck off. The case was adjourned to 15‑12‑1987. The case could not be called as the Court time was over and the case was adjourned to 16‑12‑1987. On this date, the case was called and the defendant did not appear. Again the case was not called as the Court time was over and it was adjourned to 19‑12‑1987. On this date, after hearing counsel for the plaintiff, the learned trial Court decreed the suit.

8. It is manifest from the order that while the petitioner‑plaintiff was extended indulgence for almost two years to complete his evidence, the learned trial Court decided to strike off respondent‑defendant's defence within a period of one month of the first opportunity given to him for producing the same. The learned trial Court did not pass any order for ex parte proceedings. The order striking off the defence evidence is not sustainable as Order 9, Rule 12 of the C.P.C. does not empower the Court to do that in these circumstances. Order 9, Rule 12 reads as under:‑‑ "Consequence of non‑attendance, without sufficient cause shown, of party,, ordered to appear in person.‑‑‑Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear." In a detailed elaboration of the import of Order 9, Rule 12 of the C.P.C. this Court in a case reported in Syed Muhammad Abdul JAW Shah Gilani v. The Central Bank of India Limited, Multan and others PLD 1962 (W.P.) Lah. 401 has held:‑‑ "Civil Procedure Code (V of 1908), O.IX, R.12‑‑‑Court has no power to strike off defence of defendant who does. not appear in Court in compliance with order of Court passed under O.III, R.1, C.P.C."

9. In the affidavit submitted by the respondent‑defendant before the learned appellate Court it was specifically averred that the defendant was sick and remained under treatment in the Basic Health Centre, Jamlera, Tehsil Burewala from 4‑12‑1987 to 24‑12‑1987. Medical certificate of the Incharge doctor was also appended with the affidavit. In the application filed under section 5 of the Limitation Act alongwith the appeal, the delay of five days in filing the appeal was explained by showing the cause that the delay was occasioned on account of the said sickness. The petitioner‑plaintiff did not file any counter‑affidavit to challenge the authenticity of the‑ said certificate and in rebuttal of the affidavit. In absence of that, the learned appellate Court was perfectly justified in condoning five days' delay in filing the appeal. In a judgment reported in Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79, the Honourable Supreme Court held as follows:‑‑ "Limitation Act (IX of 1908)‑‑‑S.5‑‑‑Condonation of delay‑‑ Respondent filing affidavit explaining reason preventing him from filing appeal within time and such allegation not refuted by a counter affidavit‑‑‑Delay, held, rightly condoned."

10. For what has been discussed above, the impugned judgment, dated 17‑12‑1988 passed by learned Additional District Judge‑I, Bahawalnagar, in appeal, remanding the case for fresh decision after recording evidence of the parties, does not call for interference. This Civil Revision has no merit which is dismissed with no order as to costs. H.B.T./M‑1999/L Revision dismissed.