P L D 1991 Supreme Court 363 (PLP)

NASIM HASAN SHAH, J.‑‑‑This is an appeal, by leave of this C6ur against the order of the Lahore High Court, dated 23‑5‑1979 passed in FA.0 No.121 of 1979. The relevant facts are that the National Bank of Pakistan (respondent herein) brought a civil suit against the appellant and others for recovery of certain amounts of money alleged to have been borrowed by the Leather and Allied Industries Ltd., Wazirabad of which Company the appellant (Mr. Z.Z. Ahmad) was for sometime, a Director. During the hearing of the suit the appellant, who was defendant No.3 in the said suit, was ordered to appear in Court to make a statement to give better particulars as the written statement filed by him appeared to be evasive. However, he did not appear on several dates of hearing fixed for this purpose before the Court and ultimately a date (7‑12‑1976) was fixed for this purpose. On that date he again did not appear before the Court. The learned trial Court in his order passed on that date (7‑12‑1976) observed that many opportunities had been granted to the appellant to appear in Court for making a better statement but he had neither appeared himself nor his original counsel had appeared on these dates of hearing and despite being warned of the consequence he was again not present. Accordingly, he proceeded to pass an order against him under Order X, Rule 4, C.P.C. The exact words of the order were:‑‑

Since the decree was passed without recording any evidence and without hearing the defendant (No.3) the said defendant took it to be an ex parte decree. He, therefore, filed an application under Order IX, Rule 13, C.P.C. for setting it aside. This application, however, was dismissed by the trial Court vide order, dated 13‑2‑1979 on the ground that the order, dated 7‑12‑1976 was passed under Rule 4 of Order X, C.P.C. pronouncing judgment against a party which was an appealable order to the higher Court. Accordingly, an application under Order IX, Rule 13, C.P.C. for setting it aside, which was presented to the same Court, was a remedy taken before the wrong forum. Coming to the submission that the judgment dated 7‑12‑1976 was not justified under the provisions of Rule 4(2) of Order X, C.P.C. it was observed:‑‑

"The petitioner and his original counsel remained absent from the Court for more than one year and two months. Under the circumstances, it does not appeal to the logic that the said Advocate had the instructions from the petitioner to answer the questions which were proposed to be put to him by the Court. Several adjournments were given for the personal appearance of the petitioner and each time the Advocate who appeared on behalf of his original counsel was warned that in case the petitioner failed to appear personally action will be taken against him. In spite of all this neither he nor his original counsel nor his agent appeared; therefore, the order was passed." Feeling dissatisfied with the above order dated 13‑2‑1979'the appellant challenged it by filing an appeal (F.A.0 No.121 of 1979). But the appeal was dismissed by a learned Single Judge of the High Court on 23‑5‑1970. Hence the present appeal, by leave of this Court. At the hearing of the appeal today, the learned counsel for the respondent‑Bank, Mr. Jamshed Ahmad, raised a preliminary objection that the appeal had abated in so far as the appellant (Mr. ZZ Ahmad) had died on 29‑7‑1989 but his legal representatives had not been brought on record. Maulvi Ehsanul Haq, learned counsel on behalf of the appellant, however, pointed out that, an application under Order XXIII, Rule 6 of the Supreme Court Rules, 1980 had been submitted on behalf of the appellant for bringing the legal representative of the appellant (Mr.Z.Z. Ahmad) on the record and prayed that the delay that had occurred in submitting the application may be condoned in the interests of justice. After hearing the learned counsel for the parties we feel that this is a fit case in which the delay in the submission of the application for bringing the legal representative of Mr. Z.Z. Ahmad should be condoned in the interest of justice. The legal representative of Mr. ZZ Ahmad is therefore, allowed to be brought on record. On merits, the learned counsel for the appellant has submitted that both the Courts below had misread the relevant provisions of Orders 9, 10 and 43 of the Civil Procedure Code. In this connection, he pointed out, that the suit had been decreed against the appellant without recording any evidence whatsoever, without even an affidavit as ex parte proof. A decree against the appellant, in such circumstances, 'could only have been passed under Order 9 Rule 6 of the Civil Procedure Code and, therefore, the Courts below had erred in holding that the appellant's remedy was only by way of an appeal under section 104, C.P.C. read with the provisions of Order 43(l)(e), C.P.C. and that the application for restoration under Order 9, Rule 13 was not maintainable. Mr. Jamshed Ahmad, learned counsel for the respondent, has been heard in reply. In order to decide the controversy, a deeper examination of the relevant provisions involved appears to be necessary. Rule 4 of Order X, C.P.C. provides:‑‑ "4.‑‑(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the .Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit." In this case, the Court decided to pronounce judgment against the appellant on the ground that he had failed to appear in person before it on the appointed date 'without lawful excuse'. The term 'judgment', means 'a concise statement of the case, the points for determination and decision thereon and the reasons for such decision' (vide clause (2) of Rule 4 of Order XX, C.P.C.) In this case, the judgment passed on 7‑12‑1976 neither contains any concise statement of the case nor the points for determination nor the decision thereon nor the reasons for the decision. It merely refers to the fact that the appellant had persistently failed to appear before the Court despite being asked to do so and that he had again failed to appear before the Court without lawful excuse on the appointed date. The Court, in these circumstances, was constrained to pass a decree against him under Order XX, Rule 4(2) of the C.P.C. It is an admitted position that by then (7‑12‑1976) neither the evidence of any party had been recorded nor was the defendant examined. In this state of affairs, the order that was passed falls, in our view, within the purview of Rule 6(l)(a) of Order IX C.P.C., despite the express reference to the provisions of Order X, Rule 4(2) of the C.P.C. by the learned trial Judge. Rule 6(l)(a) of Order IX of the C.P.C. reads as follows:

"6.‑‑(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑‑ (a)? if it is proved that the summons were duly served, the Court may proceed ex parte and pass decree without recording evidence." As has been seen already summons had been duly served upon the defendant, in this case, but he did not appear when the suit was called for hearing. Furthermore, in this case, a decree was passed without recording evidence. In this case, therefore, all the ingredients of clause (a) of Rule 6(1) of Order 9, C.P.C. stood satisfied. Now, a reference to the provisions of Rule 12 of Order IX (dealing with consequences of non‑attendance without sufficient cause shown, by the party ordered to appear in person) reveals that where a plaintiff or defendant fails to appear in person, who has been ordered to do so, without lawful excuse all the provisions applicable to the plaintiffs and defendants under Order IX became applicable. By virtue of this provision clause (a) of Rule 6(1) of Order IX, C.P.C. becomes applicable and a decree can be passed against the defaulting party without recording evidence. Mr. Jamshed Ahmad, however, submitted that a counsel for the appellant did appear in Court on 7‑12‑1976 and, therefore, the decree passed on that date could not be considered to be an ex parte decree. But this submission overlooks the fact that the counsel appearing on behalf of the defendant on that date was not the original counsel of the defendant and was a counsel appearing only to seek adjournment of the case and, therefore, was not in a position to answer any material question relating to the suit. Accordingly, his presence did not imply that any pleader representing the appellant in the true sense appeared on his behalf on the said date. The proceedings taken against appellant on that date thus were in fact ex parte. In so far as a decree was passed against the appellant on that date it could legitimately be treated as an ex parte decree falling within the purview of Order 9, Rule 6(l)(a), C.P.C. and was not a judgment, failing under Order 10, Rule 4(2) thereof. The application filed for setting aside the decree passed on 7‑12‑1976 under Order IX, Rule 13, C.P.C. on showing good cause was, therefore, correct and proper. The orders of the Courts below holding to the contrary do not appear to be in accordance with law and are, accordingly, liable to be set aside. The result is that this appeal must succeed and the impugned orders, dated 9‑12‑1976, 13‑2‑1979 and 23‑5‑1979 set aside. In the result, the suit riled by the respondent‑Bank will be deemed to be pending not only against the three co?defendants of the appellant who were impleaded alongwith him in the suit and against whom the suit is still pending, but also against the present appellant as well. We are informed that the said suit has since been transferred to the Banking Court. As it has been pending now for nearly 15 years we would direct the said learned Court to dispose it of as expeditiously as possible. The upshot is that this appeal is allowed in the above terms, but the parties are left to bear their own costs. M.B.A./Z‑122/S ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.