2002 PLP 4 (CLC)

Mian Saadullah Jundooli for Petitioner. Maazullah Khan Barkandi for Respondent. Date of hearing: 14th March, 2001. This revision petition is directed against the judgment and decree, dated 18‑4‑2000 of the learned District Judge/Zilla Qazi, Timergara Camp at Samar Bagh whereby he dismissed the appeal of the petitioner against the order, dated 3‑I1‑1999, by virtue of which the application of the petitioner for setting aside the ex parte decree, dated 5‑4‑1999 was dismissed by the trial Court.

2. Brief facts leading to this revision petition are that Haji Gulab plaintiff‑respondent instituted a suit against Abdul Zahir defendant/ petitioner for the recovery of two thousand Saudi Riyals in the Court of Civil Judge/Illaqa Qazi, Samar Bagh. The suit was decreed ex parte vide order, dated 5‑4‑1999. The petitioner after coming to know about the ex parte decree submitted an application dated 18‑10‑1999 for setting aside the ex parte decree which was dismissed without inviting reply from the respondent and without further proceedings.

3. Aggrieved from the order of the trial Court dated 3‑11‑1999, the petitioner preferred an appeal before the District Judge/Zilla Qazi, Timergara who also dismissed the same on 18‑4‑2000 in the following manner:‑‑

4. Today learned counsel for the respondent put his appearance in the Civil Miscellaneous. The main civil revision petition is admitted to full hearing. Learned counsel for the respondent also accepted notice in the main revision petition. I have heard the learned counsel for the parties and have gone through the available material placed on file.

5. The record of the case reveals that the petitioner submitted an application‑ for, setting aside the ex parte decree on 20‑10‑1999 but the same was dismissed on the next date of hearing i.e. 3‑11‑1999 without calling for the reply and affording any opportunity to the petitioner to justify his non‑appearance. Similarly the learned District Judge/Zilla Qazi also did not bother to look into the matter on factual and legal aspect and dismissed the appeal offhandedly. The learned counsel for the petitioner contended that the petitioner in those days was away to Sindh and he was not served personally. On getting knowledge about the ex parte decree against him, he immediately moved an application for setting aside the ex parte decree, dated 5‑4‑1999.

6. Under Order 9, Rule 13 of the Civil Procedure Code it was the bounden duty of the trial Court to have entertained the said application and ask for the reply thereto from the respondent and the Court shall have to decide the question of non‑appearance, whether the petitioner intentionally and deliberately avoided the attendance of Court, secondly whether his absence was wilful or due to unavoidable circumstances beyond his control and whether he was properly served or not. These were the issues before the Court while adjudicating upon the application of the petitioner for setting aside the ex parte decree which could not be resolved nor conclusion could be drawn by the Court, unless and. until evidence is not recorded and opportunity is provided to the parties concerned to this effect.

7. Learned counsel for the respondent at the very outset without opposing the contentions of the learned counsel for the petitioner frankly conceded and requested this Court that ex parte decree, dated 5‑4‑1999 against the petitioner be set aside subject to cost and trial Court also be directed to decide the suit in hand expeditiously preferably within two months.

8. In the wake of above discussion and on perusal of record one is at a loss to notice the irresponsible demeanour of Courts below, which are constituted under the law to act as per given procedure framed thereunder, which empowered the Courts to exercise jurisdiction vested in them or not to exercise jurisdiction not invested in them. They cannot evolves any method in discharge of their duties according to their own whims and choice or pleasure. Legislature had laid down prescribed principles for the conduct of judicial proceedings. Judge is not at liberty and so free to exercise naked and unarmed powers in a despotic manner. He cannot go beyond his limits and has to perform his job within the four corners of law. Judge is supposed to dispense justice and not to hamper justice, for the sake of substantial justice, he has even to ignore technicalities. It is our faith as a Muslim that Judge is Almighty Allah the Most Beneficial, Merciful and Benevolent. We are His trustees on earth. We deliver justice on behalf of Allah, so we are shouldering heavy and great responsibility to transmit further. This is why Judge is not free, uncontrolled and unchecked creature, he is supposed to be a slave of his conscience, law besides accountable to Almighty God.

9. In the instant case it is noticed with serious concern that the Courts below without following the law and procedure without applying their mind without conceiving the consequences of valuable rights of the parties just in a very cursory manner with one stroke of pen dismissed the application of the petitioner for setting aside ex parte decree arbitrarily. Judgment can only be delivered after full hearing or otherwise it is nullity in the eyes of law, a judgment should contain a concise statement of case, the points raised before him for determination, detailed reasons for the decision, the requirements for a complete and valid judgment must be filled even by an ex parte‑judgment. An important ingredient of the judgment is that it should be speaking order and consists of statement of grounds of decision. These requirements also required to be fulfilled by the Appellate Authority to state complete reasons and findings on each and every issues as framed thereunder. Above all the Appellate Authority to utmost surprise acted as a jury member not discussing the factual and legal aspect of the case violative to Order 20, Rules 1, 2, 3 etc. of Civil Procedure Code maintaining the uncalled for an unwarranted order of the trial Court reducing the judgment in few lines manifestly speaks of responsibility of so Senior Judicial Officer.

10. Whatever the fate of the case warrants, Courts are bound to adopt set principles of law and procedure given therein and shall decide the case on merit after affording opportunity, in no way and under no circumstances Judges are let free to' make mockery and play with the rights of the parties guaranteed under the law and Constitution of Islamic Republic of Pakistan, 1973.

11. In this view of the situation, I accept this revision petition, set aide the judgment and decree, dated 18‑4‑2000 passed by District Judge/Zilla Qazi, Timergara at Samar Bagh, the order, dated 3‑11‑1999IC of the Civil Judge/Illaqa Qazi, Samar Bagh dismissing the application for setting aside the ex parte decree. Furthermore, since the learned counsel for the respondents conceded the whole process of passing of the ex parte decree, dated 5‑4‑1999, therefore, the ex parte decree, dated 5‑4‑1999 is set aside on payment of cost of Rs.1,000 and the case is remanded back to the trial Court with the direction to decide and conclude the case within four months from the receipt of the file with intimation to Additional Registrar of this Court. Copy of this judgment also be supplied to the Additional Registrar of this Court. Civil Miscellaneous No.259 of 2000 stands disposed of. Q.M.H./M.A.K./355/P Revision allowed.