2019 PLP 602 (YLR)

ALI BAIG, J.

Through the instant civil first appeal the appellant has impugned the judgment/order dated 18-04-2017 passed by the learned Senior Civil Judge Gilgit in Civil Suit No.200 of 2014 whereby the learned trial Court has dismissed the application filed by the present appellant for setting aside ex parte proceedings conducted against the appellant/defendant on 17-09-2016 by the trial court.

2. Brief facts relevant for the disposal of the instant civil 1st appeal are that on 10-12-2014 the present respondent/plaintiff instituted a suit for recovery of an amount amounting to Rs.33,90,000/- with 12% interest against the present appellant/ defendant in the court of learned Senior Civil Judge Gilgit.

3. The present appellant/defendant contested the suit by way of filing his written statement in the trial court on 17-12-2015 repudiating the averments of plaint on various legal and factual grounds.

4. In the light of divergent pleading of the parties, the learned trial court has framed as many as 15 issues including issue of relief on 24-08-2016 and suit was adjourned to 31-08-2016 for filing of list of witnesses. On 31-8-2016 the presiding officer of trial court was under transfer, therefore, the reader of trial court adjourned the suit to 17-09-2016. On 17.09.2016 the defendant/appellant did not appear before the learned trial court, therefore, he was proceeded against ex-parte and suit was adjourned to 03-10-2016. On 03-10-2016 the Presiding Officer of trial court had proceed to Islamabad for training and case was adjourned to 25.10.2016. On 25-10-2016 the present appellant again did not appear before the learned trial court, whereas the present respondent appeared before the trial court and case was adjourned to 10-11-2016. On 10-11-2016 statements of PWs were record by the trial court in absence of present appellant/defendant and case was adjourned to 29-11-2016 for ex-parte final arguments. On 29-11-2016 the present appellant/ defendant appeared before the learned trial Court and filed an application under Order No.IX Rule 7 for setting aside of ex-parte proceedings. On 1-03-2017 the appellant/ defendant once again did not appear before the trial court and accordingly his application under Order IX Rule 7, C.P.C. was dismissed by the learned trial court. On 04-04-2017 the appellant/ defendant again filed an application under section 151, C.P.C. for restoration of his previous application filed under Order IX Rule 7, C.P.C. which was also dismissed by the learned trial court vide impugned order dated 18-04-2017, hence this civil 1st appeal.

5. The learned counsel appearing on behalf of appellant contended that the impugned order passed by the learned trial court is contrary to law and facts on the record of case as such the impugned order passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellant further argued that ex parte proceedings can be set aside just on appearance of defendant before trial before pronouncement of judgment but the learned trial court has failed to appreciate this legal preposition and has wrongly passed by impugned order which may be set aside in the interest of justice.

6. On the other hand the learned counsel for the respondent/plaintiff opposed this appeal by contending that no sufficient cause has been disclosed in the application filed under Order IX, Rule 7, C.P.C. by the appellant /defendant, therefore, the learned trial court has rightly dismissed the application filed under Order IX, Rule 7, C.P.C. and application filed under section 151, C.P.C.

7. We have considered the arguments advanced by the learned counsel for the parties and have gone through material available on record.

8. From the perusal of the record it would be seen that the learned trial court has proceeded the appellant/defendant against ex parte on 17-09-2016. Thereafter the appellant/defendant remained absent for some dates of hearing. However, the appellant/defendant had appeared before trial court on 29-11-2016. The learned trial court should have re-called ex parte proceedings conducted against the appellant on 17-9-2016 on appearing of appellant but the learned trial court has received/ obtained an application on behalf of appellant filed under Order IX, Rule 7, C.P.C. on 01-03-2017 which was later on also dismissed in default.

9. It is settled principle of law that while considering the application for setting aside ex parte proceedings the court has to take lenient view and it has to pass a favorable order in favour of the defendant as all the rules laid down in the C.P.C. were intended for advancing justice and not for retarding it purely on the technicalities. It is also well settled principle of law that a defendant who is proceeded ex parte can participate in proceedings of case before disposal of case. Our this view find support from case law reported as PLD 2004 SC (AJK) 20.

10. Upshot of discussion is that the learned trial court has not exercised jurisdiction vested in it accordance with law. Consequently this appeal is accepted and impugned orders dated 18-4-2017 and 17-9-2016 passed by the learned trial court are set aside subject to pay of costs of Rs.5,000/- to be paid to respondent by the present appellant and the appellant/ defendant is allowed to participate in the proceedings before the trial court. The learned trial court shall afford fair opportunity to the appellant/defendant to led his evidence and thereafter shall dispose of the suit on merit in accordance with law. Record and proceedings of trial court be remitted back forthwith. Parties are directed to appear before the learned trial court on 10-10-2017. File. SA/197/GB Appeal accepted.