1994 PLP 1462 (CLC)

MUHAMMAD KHIYAR KHAN, J,‑‑‑This appeal is directed against the order dated 7‑7‑1992 of the learned Civil Judge‑I, Nowshera whereby the application of the appellants for setting aside the ex parte decree dated 12‑6‑1990 was dismissed.

2. Muhammad Shoaib Khan, plaintiff‑respondent, instituted suit on 30‑5‑1990 in forma pauperis against the late Feroz Khan, Ghulam Jan appellant and others in the Court of Civil Judge‑I, Nowshera far the recovery of Rs.8,00,

000. The defendants were summoned for 6‑6‑1990. On that day it was reported that defendants Nos. 6 and 7 i.e. Noor Muhammad and Ghulam Jan were avoiding service, therefore, fresh notice for 12‑6‑1990 with a note of substituted service was issued to all the defendants. On 12‑6‑1990, despite the substituted service the defendants did not appear, therefore, ex parte decree in favour of the plaintiff respondent was passed against the defendant‑appellant and others. On 14‑4‑1991 late Feroz Khan now substituted by his L.Rs. and Ghulam Jan defendant appellant submitted an application for setting aside the ex parte decree which was contested by the plaintiff‑respondent. The Court without recording the evidence on the application believed the report on the summon and held that the appellants were intentionally avoiding‑service and that despite affixation of summon on the main Gate of Public Oil Depot failed to attend the Court and having knowledge of the decree dated 12‑6‑1990 submitted an application for setting aside the ex parte decree on 14‑4‑1991 after the lapse of ten months. The learned Civil Judge‑I Nowshera, therefore, dismissed the appellants' application, vide impugned order dated 7‑7‑1992. The order is now challenged in this appeal.

3. Mr. Abdul Sattar Khan, Advocate, for the appellants contended 'that the Court without recording evidence of the parties on the application could not determine as to whether the summon was duly served or not and that even the summon for 12‑6‑1990 was not witnessed by any body nor any affidavit was given thereon. He, therefore, argued that the provisions of Order 5, Rules 17, 18, 19 and 20 of the C.P.C. have not been complied with. The learned counsel for the appellants further contended that the ex parte decree was passed without recording any evidence and the suit in the forma pauperis was not dealt with in accordance with the provisions of Rule 1, Order 33 of the C.P.C. It was argued that the appellants could apply for setting aside the ex parte decree within 30 days from the date of knowledge of the decree under Article 164 of the Limitation Act. In support of his contentions reliance was placed on the following case‑law:‑‑ (1) 1992 CLC 33 Lahore. (2) 1983 SCMR 1228.

4. Mian Muhammad Murad, Advocate for the respondent in reply argued that defendant‑appellants had the knowledge of the summon and were rightly proceeded against ex parte and that the Court had rightly passed the ex parte decree against them. He was of the view that having knowledge of the ex parte decree, their application has rightly been declared as time‑barred by the Court. The learned counsel for the plaintiff‑respondent, however, could not meet the point raised about the suit having not been proceeded in accordance with the provisions of Order 33, Rule 1 of the Civil Procedure Code.

5. Muhammad Shoaib Khan, plaintiff‑respondent, had instituted the suit in forma pauperis. Obviously the provisions of Order 33 of the Civil Procedure Code applied to it. We find that the Court did not advert to the procedure laid down in Order 33 of the Civil Procedure Code and thus when the plaintiff respondent was not permitted to institute the suit as pauper, there was, no suit and no decree, could be passed against the defendant‑appellant. In so far the service of summon, of the defendant‑appellant is concerned, we find that here also the. Court did not observe the procedure lvd down in Order 5 of the Civil Procedure Code. The process‑server was not examined by the Court as provided under Order 5, Rule 19 of the Civil Procedure Code. The summon is neither witnessed by any body from the locality nor any affidavit is given. The ex parte decree was passed without recording evidence. It has been held in the case of Hassan Din and another v. Jalal Din and 2 others (1991 CLC 33 Lahore) that rule of caution and propriety required taking of some proof from the plaintiff for satisfying the Court that the case set up before it was true. Wholly uncorroborated averments, in plaint would not have been enough for the purpose of granting ex parte decree. Similarly in the case of Mst. Gul Bibi. v. Hamesh Gul and another (PLD 1976 Peshawar 108) ex parte decree without recording evidence was held as not sustainable and amendment introduced by Law Reforms Ordinance, 1972 was held inapplicable in the facts and circumstances of the case. Although the authority was not approved by the Supreme Court in Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) but it has been held that the Court in exercise of its discretion has to see whether ex parte decree should have been passed without recording evidence or after recording evidence and the discretion be exercised judicially. The facts of the present case were such that ex parte decree could not be passed without recording evidence.

6. For the aforesaid reasons we accept this appeal, set aside the order dated 7‑7‑1992 of the learned Civil Judge‑I, Nowshera and also the ex parte decree dated 12‑6‑1990. The appellant is allowed to contest the suit. The Court shall proceed with the suit in accordance with the provisions of the Civil Procedure Code as discussed above. AA./1541/P Appeal accepted.