P L D 1964 Supreme Court 97 (PLP)

B. Z. KAIKAUS, J.‑Between the appellants and the res pondents to this appeal there was on the 3rd of August 1957, at Khairpur Mir, an agreement for supply of timber with respect to the performance of which there was a dispute between them. Each party filed a suit against the other alleging breach of contract on the part of the other party. The respondents filed a suit for damages at Karachi on 8th November 1958, and the appellants too filed a similar suit at Khairpur in 1959. In this appeal we are concerned with the suit which had been filed by the respondents against the appellants. This suit was originally filed in the Court of Ist Sub‑Judge First Class at Karachi, but after some hearings was transferred to the Court of the Sixth Sub‑Judge Ist Class. A written statement had been filed, issues had been framed and the 16th March 1960, had been fixed for recording of evidence. On the 16th of March 1960, counsel of both parties were present, but the plaintiffs submitted an application for adjournment on the ground that their counsel was busy in‑ the High Court. As defendants' counsel had no objection the case was adjourned for evidence to the 21st of April 1960. This day was subsequently declared a holiday and the Court was closed. The file was put up before the Sub‑Judge on the 22nd of April 1960, when he made the following order:- "The matter was fixed for yesterday. However, as yesterday was declared a closed holiday, it was taken up today. Case called. Mr. Ghulam Hussain for the plaintiff present. Defendants and their counsel absent. Proceedings against them to be taken ex parte. Put up on 27‑4‑1960 for ex parte proof and orders." On the 27th April 1960, nobody appeared for the defendants. The plaintiffs examined one of their partners as a witness and closed their case. The Sub‑Judge decreed the suit ex parte. On the 29th July 1960, the defendants i.e. the appellants in this appeal submitted an application under section 151, C. P. C. praying that the ex parte decree as well as the order dated the 22nd April 1960, directing ex parte proceedings be set aside and that the suit be tried from the stage at which it was on the 22nd April 1960. This application was accompanied by an affidavit of Mr. Haji Muhammad, a Pleader, who was a junior counsel in this case for the defendants‑appellants. It was stated in the affidavit that by an oversight Mr. Haji Muhammad had mentioned in his diary the Court of the 1st Sub‑Judge as the Court in which the suit was pending although the suit had already been transferred from that Court to the Court of the Sixth Sub‑Judge, that he had made inquiries from the Court of the Ist Sub‑Judge as to the proceedings that had been taken in the case on 21st April 1960, and that he had been informed that the appellate Court had sent for the record of the case and a date for hearing would be fixed after the file was received back from the Appellate Court. It may be explained here that an interim injunction having been refused to the respondents by the Ist Sub‑Judge they had filed an appeal which was at that time pending in the Court of the Second Additional District Judge, Karachi, and it was in connection with this appeal that the record of the case had according to information received by Mr. Haji Muhammad been summoned. The affidavit went on to state that the requisition for the record had in fact been received in the Court of the Ist Sub‑Judge: that Mr. Haji Muhammad informed Mr. Ghulam Ali Memon who was appearing as counsel for the defendants‑appellants, as well as the defendants appellants as to the information he had received ; that no further enquiries were made for the appeal in respect of the interim injunction remained pending ; and that counsel who appeared for the plaintiffs‑respondents in the appeal did not disclose that the suit had already been decreed. An affidavit of Muhammad Swaleh appellant was also attached to the application under section 151, C. P. C. This affidavit supported what was stated in the affidavit of Mr. Haji Muhammad and added that the appellants had come to know of the ex parte decree only on 26th July 1960. On behalf of the plaintiffs‑respondents it was contended that the application was time‑barred on account of Article 164 of the Limitation Act and that the applicants had been guilty of negligence. The Sub‑Judge held that the orders of the 22nd April 1960, and the 27th April 1960, were without jurisdiction, and that the application being under section 151, C. P. C. Article 181 and not Article 164 of the Limitation Act provided the period of limitation. He accepted the application and started rehearing of the suit from the stage at which it was on 22nd April 1960. Against this order of the Sub‑Judge the respondents approached the High Court of West Pakistan in the exercise of its revisional jurisdiction under section 115 C. P. C. A learned Single Judge of the High Court held: (i) that if a case was fixed for a day on which the Court was closed the litigant was bound to appear the next day ; (ii) that the failure of the defendants to appear on the 27th April 1960, was the result of the negligence of their counsel ; (iii) that in any case the order of 22nd April 1960, even if not justified was not without jurisdiction ; and (iv) that the Article applicable was 164 and the application for setting aside the decree was time‑barred. On these findings the learned Single Judge accepted the appli cation for revision and set aside the order of the Sub‑Judge. The present appeal is directed against the order of the learned Single Judge. All that the learned Single Judge said in support of his view as to the duty of a litigant to appear on the next day if the Court was closed on the day fixed for hearing was that "the normal rule is that a case proceeds de die in diem." The learned Single Judge did not refer to any provision of the Civil Procedure Code in support of what he said. The only provision in the Civil Procedure Code which directs a day to day hearing is Order XVII rule

1. It runs: "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: Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded." This rule does provide for a day to day hearing, but only if the examination of evidence has commenced. It does not say that if the case is fixed for evidence then it shall stand adjourned to the next day even if it is not called for hearing and no date is fixed. This rule does not necessarily mean that even without an order by the Court the party must go on appearing and it may be only a direction to the Court to continue the hearing from day to day. It is to be borne in mind that witnesses are served with a notice for a particular day and for their appear ance on the next day there has to be a further direction to them by the Court. In any case this rule is not applicable to the case before us, and apart from this rule there is nothing in the Civil Procedure Code which will support the view taken by the learned Single Judge. On the other hand a reference to Order IX, rules 6 and 8 and Order XVII, rule 2 will show that the parties to a suit are penalised for their absence only on the date fixed for hearing or the date to which the hearing is adjourned. Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearings. As rule 1 of Order IX will show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, rule 2 provides that if a party fails to appear on "the day to which the hearing of the suit is adjourned" the Court may proceed to pass orders in accord ance with Order IX. Order IX, rule 6 and Order XVII, rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that ex parse proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course "adjourned" means adjourned by the Court. We would hold therefore that the order passed on the 22nd April 1960, directing ex parse proceedings was not a valid order. On behalf of the respondents it is contended that even if that order be not valid the application for setting aside the ex parte decree was time‑barred ire view of the applicability of Article 164 of the Limitation Act which provides a limitation of one month from the date of the decree when the summons has been served. On behalf of the appellants it is contended that the order of 22nd April 1960, directing ex parte proceedings was entirely without jurisdiction and a nullity and so was the ex parte decree based on this order and the order or the decree does not stand in need of being set aside. The application it is said was not for setting aside the ex parte decree, but for recalling the orders passed which only meant that the orders should be treated as void and the Court should proceed to determine the suit which had not yet been determined in the eye of law. The difference between a total lack of jurisdiction and an irregularity is sometimes one of degree and is a matter of difficulty. A reference to the Provisions of section 115 of the Civil Procedure Code would show that every irregularity or even illegality 'in the exercise of jurisdiction does not render the order void and without jurisdiction. The contents of section 115, C. P. C. are well‑known, but it would be convenient to reproduce them here: "

115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit." An order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle too natural justice as would render the proceedings coram non judice. The contention on behalf of the appellant is that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. The argument on the other hand is that when a Court is seized of a case it has jurisdiction to determine whether summons has been duly served and this will include a case where the Court finds though not quite correctly that there is sufficient legal notice to the defendant. It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the pro ceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction. It is not necessary however to decide whether the order of the 22nd April, 1960, and the ex parte decree of the 27th April, 1960, are wholly void for there is no doubt as to their being not in accordance with law and this is a sufficient ground for their being set aside. The learned Single Judge had power when exercising his jurisdiction under section 115, C. P. C. to set aside the order directing ex‑parte proceedings and the ex parte decree based on that order, for they were the result of illegal or materially irregular exercise of jurisdiction. Even if it were found that the order of the trial Court recalling the ex parte decree could not be sustained because the application for setting aside the decree lay only under Order XIII, rule 9, C. P. C. and was time‑barred the learned Judge could and under the circum stances should have set aside the illegal order directing ex parte proceedings. The learned Single Judge failed however to exer cise his jurisdiction on account of the view which he took and which we have found to be mistaken that the appellants were bound to appear on the 22nd April 1960. We would there fore ourselves exercise the jurisdiction which he should have exercised and would set aside the order of 22nd April 1960, and the decree based upon it. It is true that the learned Single Judge had a discretion to set aside or not to set aside the order of 22nd April 1960, but the discretion is judicial and subject to the appellate powers of this Court and in this case the failure to exercise jurisdiction was due to a mistaken view of law. At the same time it should be stated that if there be jurisdiction in a Court to act the jurisdiction should be exercised if the failure to exercise it will lead to injustice and there is no principle of public policy which forbids its exercise in the particular circumstances. When questioned as to why the illegal order of 22nd April 1960, should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limitation for filing an application for revision had expired when the learned Single Judge decided the case, and the revision before him was not directed against the order of 22nd April 1960, but against the order of the trial Court setting aside the ex parte decree. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limita tion for an application in revision. The only article which could be applicable was the residuary Article 181 which pro vides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revi sional power for these powers can be exercised suo motu. At the same time it should be remembered that the respondents had themselves approached the High Court in the exercise of its revisional jurisdiction and once the High Court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C. P. C., "make such order in the case as it thinks fit." In the view that we take it is not necessary to decide whether the application filed by the appellants was governed by Article

164. We set aside the order directing ex parte proceed ings and the ex parte decree based upon it. This appeal is accepted with costs in all Courts and the order of the High Court is set aside. The suit will now be heard from the stage at which it was on 22nd April 1960. K. B. A. Appeal accepted.