P L D 2004 Supreme Court (AJ&K) 20 (PLP)

Raja Fazal Hussain Rabbani, Advocate for Appellant. Muhammad Yunus Arvi, Advocate for Respondents. Date of hearing: 19th November, 2003. MUHAMMAD YUNUS SURAKHAVI, C.J.‑This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 20‑3‑2003, whereby the revision petition filed by the appellant herein was dismissed.

2. The necessary facts, giving rise to the present appeal, are that the plaintiff‑appellant brought a suit for perpetual injunction in the Court of Civil Judge, Mirpur. It was averred in the plaint that land measuring 3 Kanals, 15 Marlas, comprising Survey No. 141 (old), 336 (new), Khewat No.49/35, Khata No.281, situate in village Chabriyan‑Duttan, Tehsil and District Mirpur is in the ownership and possession of plaintiff‑appellant and the defendants want to trespass into the said land and to occupy the same. It was therefore prayed that a decree for permanent injunction may be passed ilgainst the defendants. During the pendency of the suit, the defendants despite service did not appear on 20‑1‑2001, as such the ex parte proceedings were ordered against them but on 15‑5‑2002, the defendant, Liaqat, appeared before the trial Court and stated that the ex part proceedings be set aside and he wanted to file Wakalatnama of some counsel. The Court fixed the date for objections and also recorded the order that defendant, Liaqat, is personally present in the Court. Then on 12‑7‑2002 none of the respondents appeared before the trial Court and as such they were proceeded ex parte and the case was fixed for ex parte arguments for 12‑8‑2002. On 26‑8‑2002 the defendants again moved an application for setting aside the ex parte proceedings. The trial Court vide its order dated 4‑12‑2003 set aside the ex parte proceedings against the defendants on payment of costs of Rs.1,000 and it was Ordered that the defendants shall file their written statements on 9‑12‑2002. The order of the trial Court dated 4‑12‑2002 was challenged by way of a revision petition before the High Court which was dismissed vide the impugned order of the High Court dated 20‑3‑2003. It is the aforesaid order of the High Court which is the subject‑matter of present appeal:

3. In support of appeal it was vehemently contended by Raja Fazal Hussain Rabbani, the learned counsel for the appellant, that ex parte proceedings were initially recorded against the defendants on 20‑1‑2001, whereas the application for setting aside the same was moved on 26‑8‑2002. The learned counsel contended that right from the very beginning the defendants absented themselves from the proceedings despite the fact that the, service was effected upon them. Subsequently they joined the proceedings but the defendants were proceeded ex parte not only once but twice. The learned counsel contended that ex parte proceedings were recorded against the defendants on 20‑1‑2001, whereas the application for setting aside the ex parte proceedings was moved on 26‑8‑2002. Although the application was moved after the period of seven months but the trial Court as well as the High Court erred in setting aside the ex parte proceedings.

4. Both the learned counsel for the appellant as well as the High Court fell in error by observing that the application for setting aside the ex parte proceedings was moved after a period of seven months, whereas the fact of the matter is that the defendants were proceeded ex parte not only once but twice. Firstly the ex parte proceedings were ordered against the defendants on 20‑1‑2001 and the defendants on 15‑5‑2002 joined the proceedings of the trial Court. Then on 12‑7‑2002 the defendants absented themselves, as such the ex parte proceedings were ordered against them. On 26‑8‑2002 the respondents moved an application for setting aside the ex parte proceedings exactly after one month and fourteen days, as such after taking objections from the opposite side, the trial Court vide its order dated 4‑12‑2003 set aside the ex parte proceedings against the respondents on payment of costs of Rs.1,

000. Against this order, a revision petition was filed before the High Court which, as stated earlier, was dismissed.

5. Mr. Muhammad Yunus Arvi, the learned counsel for the respondents, submitted that Order IX, rule 7 of the Code of Civil Procedure will apply for setting aside the ex parte proceedings against the defendants‑respondents, wherein no limitation has been provided. The learned High Court unnecessarily embarked upon the first ex parte proceedings for which the application for setting aside the ex parte proceedings was moved after about seven months but the High Court lost sight of the fact that the first ex parte proceedings were set aside by the trial Court when the defendants joined proceedings before the trial Court on 15‑5‑2002 and it was the second time that the ex parte proceedings were ordered against the respondents on 12‑7‑2002 and the application for setting aside the same was moved by the respondents on 26‑8‑2002. The learned counsel also contended that under Order IX, rule 7 of the Code of Civil Procedure if the defendant shows a good cause for his previous non‑appearance, he may, upon such terms as the Court directs as to the costs or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance. The respondents have shown a cause in their application that the plaintiff had agreed for settlement outside the Court for which purpose the defendants did not appear in the Court and when they came to the conclusion that the plaintiff‑appellant is lingering on the matter, they appeared and moved the Court for setting aside the ex parte proceedings.

6. After hearing the respective contentions of the learned counsel for the parties, it may be stated that Order‑ IX; rule 7 of the Code of Civil Procedure reads as under:‑‑ "

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous‑non‑appearance.‑‑ Where the Court has adjourned the hearing of this suit ex part and the defendant, at or before such hearing, appears and assigns good cause for his previous non‑appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." This rule provides remedy against the ex parte proceedings and orders and the remedy provided by this rule has to be resorted to even though the order may be considered to be illegal. This rule is applicable not only to absence on the first date of hearing but read with rule 1 of Order XVII also to adjourned dates of hearing. Where proceedings have been ordered ex parte against a defendant, he may join the proceedings at any subsequent stage, if he does not want the setting aside of the proceedings taken in his absence, for the provisions of rule 7 are attracted only if the defendant wants the setting aside of such proceedings. A reference may be made to a case reported as Landhi Industrial Trading Estate Ltd. v. Government of Pakistan 1970 SCMR 251, where it has been provided as follows:‑‑ "The trial Court was clearly wrong in not permitting the defendant's counsel to participate in the proceedings on the 24th of November, 1964, when he entered appearance on its behalf and wanted to argue the case on the preliminary issue of the maintainability of the suit. Rules of Procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities." The aforesaid provision of law provides no limitation for an application I under this rule. A reference may be made to a case reported as Manzoor Ahmed Bhatti v. Road Transport Corporation West Pakistan and another (PLD 1973 Lahore 659), the relevant part of which is reproduced in succeeding para. of this judgment. The term `good cause' is wider than the term `sufficient cause' and a good cause may not be a sufficient cause. It is the discretionary power of the Court to hold some ground as good cause.

7. It is a settled principle of law that while considering the application for, setting aside the ex parte proceedings, the Court has to take a lenient view and it has to pass a favourable order in favour of the defendant because all the rules laid down in the Code of Civil Procedure were intended for advancing justice and not for retarding it purely on technicalities. This view finds support from the case reported as Manzoor Ahmad Bhatti v. Road Transport Corporation West, Pakistan and another PLD 1973 Lahore 659 wherein at page 663 it has been provided as under:‑‑ "Rule 7, therefore, empowers the Court on defendant's appearing and showing good cause for his previous non appearance, to hear the defendant in answer to the suit as if he had appeared on the date of the first hearing. In deciding such application the Court should liberally exercise its powers in favour of the defendant because as observed by their Lordships of the Supreme Court in Landhi Industrial Trading Estate Ltd. v. Government of Pakistan 1970 SCMR 251 the Rules of Procedure as laid down in C.P.C. are principally intended for advancing justice and not for retarding it on pure technicalities. The object of the Code is to give the parties to a litigation full opportunity of being heard and to advance their intention. The provisions of Order IX, rule 7 should be generously construed."

8. The learned counsel for the appellant vehemently stressed that the cause shown in the application of defendants for their non‑appearance is not a good cause and the same is not supported by an affidavit. Both the Courts below, i.e. the learned Civil Judge and the High Court, were satisfied with the cause shown by the defendants that the appellant had agreed to settle the dispute outside the Court, therefore, the defendants did not appear in the Court but when they felt that the plaintiff‑appellant is unnecessarily lingering on the matter, they came and requested the Court for setting aside the ex parte proceedings. When a favourable discretion has already been exercised by the Courts below in favour of the defendants, then this Court should not normally interfere in the judicial exercise of the discretion. We, therefore, concur with the view taken by the trial Court and the High Court.

9. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed. However, keeping in view the circumstances of the case, we pass no order as to costs. S.A.K./391/SC(AJ&K) Appeal dismissed.