1989 PLP 4225 (MLD)

Mian Saeed Ahmad for Respondent. Date of hearing: 5th February, 1989. JUDGMENT. This revision petition arises out of a suit filed by the respondent against the petitioner for the recovery of Rs. 25,000 by way of damages.

2. The respondent claimed that his mare 'was electrocuted on 23-5-1983 when she incidentally touched an electric pole installed by the WAPDA. According to the plaintiff/respondent the incident was an outcome of the negligence of the petitioner/defendant. The petitioner failed to appear in the trial Court and an ex parte decree was passed against him on 17-5-1986. The application for setting aside the exparte decree was dismissed on 17-1-1988. The petitioner's appeal was dismissed by the learned Addl. District Judge, Multan vide the judgment dated 29-9-1988. Hence this petition.

3. The main contention raised by the learned counsel for the petitioner is that even if it was assumed that the petitioner was duly served and that he had failed to appear in the Court, the Court was not bound to pass a decree under Order IX rule 6 (1) (a) of the C.P.C. The Court was bound to act in accordance with the law. He places reliance on Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) and Muhammad Saeed v. Muhammad Siddiq 1985 MLD 1440. On the other hand Mian Saeed Ahmad, learned counsel for the respondent submits that the petitioner was rightly proceeded against ex Parte and that the Court was competent to pass the decree against the petitioner defendant

4. I have considered the contentions raised by the learned counsel for the parties. By virtue of the provision of Order IX, rule 6 of the C.P.C the trial Court has the discretion to pass a decree in favour of the plaintiff without recording an evidence. However, the decree does not follow as a matter of course and the Court has not been debarred from recording evidence in the case. In order to pass a just and proper decree the Court will naturally look for some material to base its judgment on. Therefore, the Court may proceed to record evidence depending upon the nature of the claim and the quantity and quality of the material already placed on the record. In the above-referred Shamorz Khan's case it was held as under: "Now if in the words of Jewitt a person liable to perform an obligation is potentially subject to that obligation, it means that the obligation may be enforced against him, not that it must be. Similarly, if a person is liable to suffer a penalty he is potentially subject to that penalty and this means that the penalty may be enforced against him at the discretion of the authority entitled to enforce the penalty. Therefore, the ordinary and natural meaning of the words "shall be liable .... to have his defence struck off' is that the Court may strike off the defence of a defendant in an appropriate case, otherwise the Legislature would have used the words "shall be struck of as it did in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959." It was further held that it was not incumbent on Courts to decree a suit without recording evidence. The Court further noticed that if it is made obligatory on Courts to pass decrees under Order IX rule 6 of the C.P.C. then even patently time barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims would be decreed. Such an intention could not be attributed to the Legislature. In Muhammad Saeed's case reported in 1985 MLD 1440, it was emphasised that mere failure on the part of the defendant to present written statement under Order VIII rule

10. C.P.C. would not necessarily result in striking out the defence and passing of a decree in favour of the plaintiff. Notwithstanding the default of the party the Court was still bound to discover the truth for dispensing, even handed justice.

5. There is also considerable force in the submission made by the learned counsel for the petitioner that the Court has to pass the judgment and the decree in accordance with the. law, particularly the law relating to jurisdiction and limitation. In the present case, the cause of action had arisen on 23-5-1983 and the suit was filed on 27-1-1986. The limitation in the instant case was governed by Article 2 of the Limitation Act which provided a period of 90 days for filing the suit. Therefore, the suit was clearly barred by time. Even if Article 36 of the Limitation Act relating to tortious acts was applied in the case, the suit was still barred by time because a period of two years was permissible for institution of the suit under the said provision of the law. Therefore, the Court had no option but to dismiss the suit in accordance with the provisions of section 3 of the Limitation Act.

6. The upshot of the above discussion is that this revision petition is allowed, the judgments and decrees of the Courts below are set aside and the respondent's suit is dismissed leaving the parties to bear their own costs. H.B.T./W-73/L Revision allowed.