1988 PLP 1873 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑0. 1X, R. 13 &.. .. 115‑‑Setting aside of ex parte decree‑‑Application for‑‑revisional jurisdiction, exercise of‑‑Order and judgment dismissing application of petitioner for setting aside ex parte decree against him was passed by Court below without going through entire record of case‑‑Jurisdiction thus exercised by Court below, held, became illegal resulting in apparent miscarriage of justice‑‑High Court accepting revision set aside order of Court below with directions that application of petitioner for setting aside ex parte decree should be decided after affording opportunity to parties to .lead evidence in support of their respective versions. Malik Muhammad Hussain Awan for Appellant. Talat Farooq Sheikh for Respondent. Date of hearing: 14th November, 1987. This civil revision under, section 115, C.P.C. was directed against the judgment, dated 27‑9‑1987 of Additional District Judge. Kasur, whereby he dismissed the appeal filed against the order. dated 18‑5‑1987 passed by the learned Judge Family Court, Kasur, whereby the application for setting aside the ex parte decree, dated 29‑5‑1983, was dismissed.

2. Mr. Talat Farooq Sheikh, Advocate for respondent has nothing to urge as part of the record of the proceedings was found attached with the file pertaining to the application for setting aside ex parte decree passed in the maintenance suit and the other part was found attached with the file of execution application. The learned Civil Judge and the learned Additional District Judge thus passed the impugned order and the judgment without going through the entire record. It is also pertinent to note that taking notice of the. plea of the learned counsel for the petitioner that the parties had led evidence in the proceedings held on application for setting aside ex parte decrees, dated 29‑5‑1983 and the same was clandestinely withheld by the officials of the Court and was not made available ,to the learned Civil Judge as well as to the learned Additional District Judge, Kasur, the learned District Judge, Kasur, was directed vide order, dated 18‑10‑1987 to examine the file and report whether it contained the evidence of the parties or not. The report submitted in compliance with this order has been perused. The record comprising five files has also been forwarded to this Court. The examination of the record shows that one file pertains to a suit for maintenance. This suit was decreed ex parte on 30‑6‑1983. The second file pertains to the suit for recovery of Rs.22,350 on account of dowry. This suit was decreed ex parte on 29‑5‑1983. The third file pertains to the execution proceedings. The other two files pertain to two applications for setting aside two ex parte decree. The proceedings were held in these two applications for setting aside ex parte decrees separately until 10‑6‑1984. 'The next date in both these applications was fixed for 19‑7‑1984 but from this date onward the proceedings were not recorded in the file pertaining to the application for setting aside the ex parte decree, dated 29‑5‑1983. The proceedings were noted only on the other file pertaining to application for setting aside of ex parte decree passed in the maintenance suit. The evidence produced by both the parties was recorded and made part of this very file. Mr. Muhammad Akmal Qureshi, Judge Family Court, Kasur, who was then seized of the matter, did not record the statements of the witnesses in his own hand as in the proceedings sheet it stands recorded that the same had been dictated because the Presiding Officer was suffering from bad cold. The Presiding Officer who succeeded Mr. Muhammad Akmal Qureshi also failed to record separate proceedings in the file pertaining to application for setting aside ex parte decree, dated 29‑5‑1983. Even the miscellaneous application submitted in these proceedings for obtaining report of the expert respecting the disputed signature of Muhammad Bashir appearing on the summons was attached with the other file and the orders were also recorded in the proceedings sheet of the other file, Mr. Akhtar Hussain Zahid, Civil Judge, Kasur, on 8‑2‑1987 noted that no proceedings were held on the application for setting aside the ex parte decree, dated 29‑5‑19$3 (in the suit for recovery of dowry). He, therefore, again framed two issues which had earlier been framed on 14‑11‑1983 and pursuant to which the application for obtaining the report of the handwriting expert had been granted and the report was being awaited. Then the application for setting aside the ex parte decree was dismissed on 18‑5‑1987 observing that despite grant of opportunities evidence was not produced. These proceedings were found attached with the file of execution application. I may mention here that the application for setting aside the ex parte decree passed in the maintenance suit was dismissed for non‑prosecution on 17‑2‑1987. The appeal was then filed by the petitioner against the order, dated‑18‑5‑1987 whereby the application for setting aside the ex parte decree was dismissed. The appeal also failed vide order, dated 27‑9‑1987 of the learned Additional District Judge, Kasur. Ordinarily the file pertaining to the application to set aside the ex parte decree, dated 29‑5‑1983 would have been forwarded to the appellate Curt. This does not contain, as pointed out above, any proceedings after 10‑6‑1984. I wonder whether learned Additional District Judge had at all gone through the file. Had he perused the record of the application for setting aside ex parte decree he would have known that no proceedings after 10‑6‑1984 were available on the file. The impugned judgment shows that he dealt with the question whether the petitioner was duly served or not before the ex parte decree was passed against him. He failed to examine the question whether the dismissal of the application for setting aside the ex parte decree was legal and justified. The features noted above were also not noticed by the learned District Judge, Kasur, Mr. Muhammad Akmal Qureshi, Judge Family Court, Kasur, it appears, throughout the period that proceedings remained pending before him, did not go through the judicial files himself. Even Mr. Akhtar Hussain Zahid failed to discern the above‑noted position of the record. For safe administration of justice as also for safeguarding valuable rights of citizens maintenance of true, correct and proper record of judicial proceedings is essential. It cannot be denied that application of judicial mind can only be ensured when diligently prepared correct judicial record is available. I may also point out that strict vigilance over the administrative staff would also ensure the availability of true and complete judicial record and if the same is not made available, a Judicial Officer should be able to find out the deficiency in the record placed before him. In this case unfortunately, learned Additional District Judge while hearing the appeals could not detect the aforenoted position of the record. The Reader as well as the Ahmad also failed to keep and maintain the record of each application proceedings separately and properly. The proceedings‑sheet of one file is found attached with the other file.

3. It was in the circumstances given above that the learned counsel had no option but to concede the revision petition. The impugned order and judgment was passed without going through the entire record, the jurisdiction thus exercised was illegal and the miscarriage of justice is apparent. The impugned order of the learned trial Court and judgment of the learned appellate Court are, therefore, set aside. The application for setting aside the ex parte decree shall he decided afresh after allowing opportunity to the parties to lead evidence in support of their respective versions. The parties are, however left to bear their own costs.

4. A copy of this order will be sent to Mr. Muhammad Akmal Qureshi, the then Judge Family Court, Kasur, Mr. Akhtar Hussain Zahid, the then Judge Family Court, Kasur and Sh. Mumtaz Ali Additional District Judge, Kasur for their future guidance and a copy of this order will also be placed on the service files of the above‑said Judicial Officers. A copy of this judgment shall also be forwarded to the District Judge Kasur for initiating disciplinary action against the officials responsible for not maintaining the files properly. The result of the action taken will be reported to this Court. H . B . T . / M‑604/ L Revision accepted.