2010 PLP 973 (SCMR)

CH. IJAZ AHMED. J

Necessary facts out of which the present petition arises are that Fazal Manan respondent filed suit for recovery of Rs.3,00,000 along with profit according to the National Bank of Pakistan from 24-11-1996 till the final payment and also for the recovery of Rs.50,000 with profit against the petitioner in the Court of Senior Civil Judge/Aala Illaqa Qazi, Swat. The petitioner controverted the allegations levelled, in the plaint by filing written statement. Out of the pleadings of the parties, the trial Court framed eight issues. The case was fixed before the trial Court for 2nd March, 2005 when the same was adjourned for 11-4-2005 according to the petitioner. The petitioner attended the trial Court on 11-4-2005. He came to know that the suit of the respondent had already been ex parte decreed on 9-4-2006. Respondent had also produced ex parte evidence. The petitioner preferred the application for setting aside of ex parte decree dated 9-4-2005 before the trial Court on 21-5-2005. Respondent filed reply of the application on 20-6-2005. The trial Court after hearing, the arguments of the parties dismissed the application vide order-dated 3-10-2005. Petitioner filed appeal in the Court of Additional District Judge/Izafi Zilla Qazi, Swat who dismissed the appeal vide order dated 30-11-2005. Petitioner filed Civil Revision No.1525 in the Peshawar High Court Peshawar which was dismissed vide impugned judgment dated 12-6-2006. Hence this petition.

2. Learned counsel for the petitioner submits that petitioner had wrongly noted the date of hearing as 11-4-2005 instead of 21-3-2005. The petitioner has filed application duly supported by the affidavit. The contents of the application were denied by the respondent in general terms. The agreement was allegedly executed between the petitioner and respondent on 24-11-1996 according to which respondent had given Qarz-e-Hasna amounting to Rs.3,00,000 to the petitioner. The agreement was duly attested, by Gul Sherin P.W.3 and Jalal Khan (not produced). The execution of the document (agreement) was denied by the petitioner as evident from para 1 of the written statement. The respondent had failed to prove the execution of agreement in terms of Article 17 read with Article 79 of Qunan-e-Shahadat Order, 1984 wherein the respondent had to produce both the attesting witnesses to prove the execution of the agreement. This fact was not considered by the courts below and the ex parte decree is not sustainable in the eyes of law.

3. Learned counsel for the respondent has supported the impugned judgment and stated, as under:

(i) The suit was earlier decreed ex parte against the petitioner which was set aside. (ii) All the courts below had dismissed the application of the petitioner with cogent reasons on the ground that the suit was instituted on 27-7-2000 and according to the agreement, petitioner/defendant bound himself to pay the amount on 24-11-1998 which he failed to pay and he deliberately prolonged the affair and allowed the court to decide the case against the petitioner ex parte as the petitioner did not allow the courts to decide the suit on merits. (iii) All the courts below had given concurrent conclusions after proper appreciation of available record, therefore, petition is liable to be dismissed.

4. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. It is well-settled principle that the most important duty of the courts of law is to do justice between the parties and in the absence of any express power, normally on technical grounds, they should not hesitate to give proper relief. It must also be mentioned that civil courts are courts of both law and equity and in the absence of special reasons they should also be inclined to do substantial justice and matters of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the party concerned shall be seriously prejudiced if the application or suit is not restored. It is also a settled proposition of law that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. In the case in hand, the petitioner seems to be sufficiently vigilant and was making inquiries about the proceedings from all the relevant quarters as evident from the contents of the application. His non-appearance has also been explained. According to the contents of the application, misunderstanding was created due to the fact that file had been misplaced, as informed by the official of the Court. The duty of the court is to do justice between the parties. The procedure prescribed is always for the purpose of doing justice between them and should not come in the way of doing substantial justice. It is pertinent to mention here that to make a mistake about the date is not lapse of category, which can outrightly be excluded from the scope of bona fide mistake. Such mistake occurred by mis-apprehension of the party and some time by unintentional wrong communication by the clerk of the court. In this case, the mistake was bona fide coupled with the fact that this assertion was duly supported by the affidavit and the respondent could not be rebutted expressly in the reply of the application which was denied in general terms. If being so, the possibility of noting down a wrong date could not be ruled out. Under the circumstances, the courts below should have exercised discretion in favour of the petitioner on the well-known maxim that law favours adjudication on merits and this principle is to be followed unless there are practical difficulties which cannot be surmounted.

5. In the facts and circumstances of this case, the bona fide mistake of the petitioner amounts sufficient cause for restoration of the suit. We are, therefore, constrained to hold that the courts below in refusing to restore the suit did not exercise their discretion upon sound judicial principles coupled with the fact that the respondent had failed to prove the document in question in accordance with law and provisions of Articles 17 and 79 of Qanun-e-Shahadat Order, 1984.

6. Petitioner had proved sufficient cause for non-appearance before the trial Court and all the courts below had erred in law not to exercise discretion in favour of the petitioner.

7. In view of what has been discussed above, petition is converted into appeal and is allowed. Impugned judgment of the Peshawar High Court, Peshawar dated 12-6-2006, judgment of the Additional District Judge dated 30-11-2005 and order of Civil Judge dated 3-10-2005 are set aside and case is remanded back to the trial court to decide the same afresh after affording proper opportunities of hearing to the parties. Parties are directed to appear before the trial Court on 30-3-2010 who is directed to decide the case preferably within a period of six months positively and submit compliance report to the Registrar of this Court for our perusal in Chambers. Parties and their learned counsel are directed to co-operate with the trial court so that the case may be disposed of within the stipulated period. No order as to costs. S.A.K./A-17/SC Case remanded.