2016 PLP 85 (YLRN)

O. XXXVII, R. 4

Suit for recovery of amount

Ex parte proceedings

Setting aside of ex parte judgment and decree

Special circumstances for non-appearance, existence of

Determination

Withdrawal of power of attorney by counsel

Duty of court

Plaintiff filed suit for recovery of amount on basis of dishonoured cheque and FIR was also got lodged against defendant for the same

Defendant, while being in jail, appeared in suit through his counsel

Said counsel filed application for withdrawal of his power of attorney, on which Trial Court directed him to furnish certificate in writing to the effect that he had duly intimated defendant about said application for withdrawal

No one, later on, appeared on behalf of defendant, and Trial Court finally decreed the suit ex parte

Defendant filed application under O. XXXVII, R. 4, C.P.C. seeking setting aside of ex parte judgment and decree, which Trial Court dismissed

Validity

Trial Court had already allowed application moved by defendant for his exemption from appearance

Defendant need not to appear in person on each and every date, especially, when he had been represented by his duly constituted attorney or advocate

However, as defendant was confined in jail and his counsel having disassociated himself from proceedings and sought to withdraw his power of attorney, Trial Court was supposed to go to an extra mile and proceed cautiously

Advocate of defendant had not furnished certificate in writing to confirm that he had duly informed defendant about his intention not to represent him in future

No justification existed to initiate ex parte proceedings

Trial Court, having already heard arguments on application for leave to defend, had resorted to ex parte proceedings, which was glaring material irregularity

Trial Court, instead of retracing its steps, had persisted in its illegal orders by dismissing application filed by defendant under O. XXXVII, R. 4, C.P.C.

Defendant had given adequate reasons for his absence in said application

Plaintiff had managed first to commit defendant to prison by lodging FIR under S.489-F, P.P.C., and then maneouvered impugned ex parte judgment and decree

Impugned order was not speaking order, as no valid and cogent reasons had been given for the same

Defendant's application, in circumstances, deserved to be allowed

Trial Court had committed material irregularity in trial of suit, which had vitiated its proceedings, warranting interference under S.115, C.P.C.

Ex parte proceedings being without jurisdiction and any lawful basis, High Court, set aside impugned order of dismissal, remanded case to Trial Court for decision afresh taking up proceedings from date of application filed by defendant's advocate for withdrawal of his power of attorney

Revision petition was allowed in circumstances. [Paras. 10, 11, 12 and 13 of the judgment] ORDER MAHMOOD AHMAD BHATTI, J.

This revision petition is directed against the order dated 10.06.2015 passed by an Additional District Judge Lahore, whereby an application moved by the petitioner under Order XXXVII, Rule 4, C.P.C. was dismissed.

2. Tersely stated, the facts are that Muhammad Saleem Butt, the respondent instituted a suit for the recovery of Rs.14325000/- contending therein that both the defendant and plaintiff were friends and bank officers. The defendant/petitioner was serving as Chief Manager, NIB Bank. Given their friendship, the plaintiff used to advance money to the defendant to purchase the prize bonds or to hand him prize bonds to be exchanged with other prize bonds. He also gave him an amount of Rs.4325000/- on 17.09.2008 for the purchase of prize bonds. The defendant/petitioner was alleged to have misappropriated the money given to him. When the plaintiff pressed for the repayment, the defendant made out and issued a cross cheque bearing No.75255925 dated 25.12.2008 for a sum of Rs.4325000/- to be drawn on NIB Bank, Gulshan Ravi Branch, Lahore. When the cheque was presented for encashment, it was dishonoured because of insufficient funds in the account of the defendant. It was further averred in the plaint that the plaintiff suffered loss in business due to non-payment of Rs.4325000/- to him. This loss was assessed at Rs.5000000/-. He also claimed to have gone through ordeal and mental torture, demanding damages for Rs.500000/-. All in all, an amount of Rs.14325000/- along with mark up at the rate of 15% per annum was claimed.

3. Since the plaintiff had also lodged an FIR against the defendant/petitioner, he was behind the bars at the time of institution of the suit. That is why summons was issued to him through the Superintendent Jail. On 10.05.2012, he was produced before the Court in police custody. A copy of the plaint was handed over to him and he was asked to file an application for leave to defend the suit, adjourning the case until 26.05.2012. On 26.05.2012, an application for leave to defend the suit was filed through Muhammad Nadeem Choudhry Advocate. At the same time, an application was moved by him for his exemption from appearance, which was promptly allowed. It goes without saying that the plaintiff/respondent was required to file reply to the application for leave to defend moved on behalf of the defendant/petitioner. It so happened that on 24.10.2012, Muhammad Nadeem Chaudhry Advocate filed an application, seeking to withdraw his power of attorney. However, the counsel concerned was directed to furnish a certificate in writing that he had duly intimated the defendant about the withdrawal of his power of attorney. In the circumstances, no order was passed on the application moved on behalf of the defendant, seeking leave to defend the suit. Proceedings were adjourned to 30.10.2012. Thereafter, the case was adjourned from time to time. On 26.02.2013, the learned trial Court ordered the ex parte proceedings, and the plaintiff was asked to adducd ex parte evidence in support of his case.

4. In ex parte evidence, the plaintiff himself appeared as P.W.1 and did not examine any other witness. However, he produced the cheque in question in original and the slip and memo issued by the Bank as Exh.P.1, Exh.P.2 and Exh.P.3, respectively. Copy of FIR was tendered as Exh.P

4. Copy of the order of the Judicial Magistrate was produced as Exh.P.5, and copies of other FIRs were tendered as Exh.P.6 and Exh.P.7.

5. The learned trial Court decreed the suit of the plaintiff partially to the extent of Rs.4325000/-, meaning thereby that the rest of other claims put forward by him regarding the sustaining of loss in business and suffering the anguish, ordeal and mental torture were rejected.

6. On 25.03.2015, the defendant/ petitioner filed an application under Order XXXVII, Rule 4, C.P.C. seeking to set aside the ex parte judgment and decree dated 04.02.2014. In his application, it was urged that at the time of filing the suit, he was behind the bars. It was alleged by him that the counsel engaged by him had colluded with the plaintiff and disassociated himself from the applicant, without disclosing this fact to him, thereby paving the way for the passing of the ex parte judgment and decree. He made an impassioned plea for setting aside the ex parte judgment and decree, maintaining that he was a victim of circumstances and his absence from the Court was not deliberate. The decree-holder/plaintiff resisted this application tooth and nail and defended the action of the Court in initiating ex parte proceeding against the defendant/petitioner. As it is, the petitioner's application was dismissed vide the impugned order dated 10.06.2015, the correctness whereof has been challenged by the petitioner through the instant revision petition.

7. In support of the petition, learned counsel for the petitioner has reiterated the contentions noted above. It is urged by him that once the learned trial Court had allowed the application of the petitioner for exemption from appearance, and he was lodged in Jail, ex parte proceedings could not have been initiated against him. It is argued by him that if the learned counsel representing the petitioner had disassociated himself from the proceedings, the learned trial Court was to issue a fresh notice to the petitioner through the Superintendent Jail so as to enable him to make an alternative arrangement for his representation. It is concluded by him by advancing the argument that an act of the Court should not cause prejudice to the rights of anybody. The impugned order dated 10.06.2015 was dubbed as a non-speaking one, bereft of any reasons.

8. Conversely, the learned counsel for the respondent/decree-holder/plaintiff has vehemently opposed this petition. It is argued by him that Muhammad Nadeem Chaudhary Advocate was engaged by the petitioner himself and if he did not defend the petitioner for one reason or another, the petitioner is solely responsible for the ensuing consequences and he cannot build any case upon any act or omission of his own counsel. It is further urged by him that under section 118 of the Negotiable Instruments Act, 1881, presumption was duly raised by the learned trial Court that the cheque, Exh.P1 was made out and issued by the petitioner for consideration. He has also vociferously made the arguments that the petitioner is a cheat, who cheated the respondent/plaintiff out of his hard-earned money, besides betraying the trust reposed in him by his friend, and as such he was not entitled to any discretionary relief.

9. I have heard the learned counsel for the parties to the revision petition and perused the record with their assistance.

10. From a perusal of the order sheet maintained by the leaned trial Court, it is crystal clear that on 26.05.2012, it had allowed the application moved by the petitioner for exemption of his appearance. True, a defendant need not appear in person on each and every date, especially when he is represented by a duly constituted attorney or an advocate, but when the petitioner was confined in jail and the counsel representing him had disassociated himself from the proceedings and sought to withdraw his power of attorney, the learned trial Court was supposed to go to an extra mile and proceed cautiously. It is also evident from the order sheet that Muhammad Nadeem Chaudhary, Advocate did not furnish a certificate in writing to confirm that he had duly informed the petitioner/defendant about his intention not to represent him in the future. In other words, there is no follow-up of the order dated 24.10.2012 passed by the learned trial Court. Against this backdrop, there appeared to be no justification to initiate ex parte proceedings against the petitioner on 26.02.2013.

11. It is also of significance that the learned trial Court had heard the arguments of the learned counsel for the parties on 17.10.2012 on the application moved by the petitioner, seeking leave to defend the suit and the case was adjourned to 24.10.2012 for decision of this application. On 24.10.2012, learned counsel for the petitioner sought leave to say goodby to the petitioner. I fail to understand why the learned trial Court did not decide the aforesaid application either on 24.10.2012 or on any other date and resorted to ex parte proceedings against the petitioner on 26.02.2013. This is such a glaring material irregularity committed by the learned Court below that it cannot be glossed over or disregarded.

12. Instead of retracing its steps, the learned trial Cour persisted in its illegal orders by dismissing the application moved by the petitioner under Order XXXVII, Rule 4, C.P.C. He had given adequate reasons therein for his absence on 26.02.2013. He had stated in so many words that at the relevant time, he was behind the bars. It is a pity that firstly, the respondent/decree-holder managed to commit him to prison by lodging an FIR against him under section 489-F, P.P.C. and then manoeuvred an ex parte decree. Be that as it may, the impugned order dated 10.06.2015 by which the application of the petitioner moved under Order XXXVII, Rule 4, C.P.C. was dismissed, is not a speaking one. No valid and cogent reasons, which could bear scrutiny have been assigned. Under the special circumstances, the details whereof have been spelt out hereinabove, the application of the petitioner deserved to be allowed.

13. For what has been stated above, the learned trial Court committed material irregularity in the trial of the suit, which vitiated the proceedings, warranting the interference of this Court under section 115, C.P.C. Consequently, the impugned order dated 10.06.2015 passed by the learned trial Court is hereby set aside. Since the ex parte proceedings were taken against the petitioner without any lawful basis, the impugned judgment and decree dated 04.02.2014 resulting therefrom was also passed without any jurisdiction. As a result, all the proceedings carried out by the learned trial Court from 24.10.2012 onwards shall be deemed to have been obliterated, and the learned trial Court shall take up the proceedings afresh from the stage at which it were left off on 24.10.2012. The case is remanded to the learned trial Court, which shall first decide the application made by the petitioner, seeking leave to defend the suit.

14. The revision petition is allowed in the above terms. SL/A-134/L Petition allowed.