P L D 2006 Lahore 32 (PLP)

UMAR ATA BANDIAL, J.

The short question arising for determination in this civil revision petition is whether the petitioner who was the defendant in a suit under Order XXXVII, C.P.C. filed by the respondent/plaintiff, can be proceeded ex parte by the learned trial Court when he was confined in jail and no order for his production in Court has been made. The relevant provision regarding service of summons on an imprisoned defendant is Order V, Rule 24, C.P.C. No special procedure or consequential safeguards are provided therein for enabling a jailed defendant to represent himself in the proceedings. However, comment on this aspect of the case was made by the Hon'ble Supreme Court in Ghulam Rasool v. Abdullah 1991 SCMR 1964 with the following observation:-- "

4. According to the appellant, his case was fixed for pronouncement of judgment on 22-3-1987. He had given oral instructions to a Petition writer for drafting his written statement which was prepared by him and was presented by his son on 24-3-1987. The Court in spite of the knowledge with regard to the detention of the appellant did not direct the Jail authorities to produce him in Court on 5-4-1987. It is an admitted feature of the case that the appellant was convicted on a criminal charge and his absence was not wilful. It was beyond his control. No process was issued to the appellant for 5-4-1987, as such ex parte proceedings could not be taken against him. The appearance of the minor son of the appellant was not appearance on behalf of the appellant. He was not a constituted attorney of the appellant. He had only informed about a fact, when it came to the notice of the Court that the appellant had been detained on a criminal charge, it was obligatory on the Court to have issued a process to the appellant. Thus, the Qazi had exercised the jurisdiction in proceeding ex parte illegally and against the provisions of law. The Majlis-e-Shoora and the High Court has not taken into consideration these facts. The ex parte decree, in the circumstances of the case, could be set aside on appeal by the appellate Court. The High Court has not adverted to this aspect of the case that no process was issued to the appellant, therefore, ex parte proceedings could not be have been drawn against him. "

2. The foregoing view, of the Hon'ble Supreme Court contemplates a trial Court to pass a production order of a detained defendant before taking ex parte action against him. It stands to reasons that no final order be passed until the trial Court is satisfied that a prisoner defendant has B been duly served and been given a sufficient opportunity to arrange his defence. A production order would advance the cause of justice for the defendant to appear and be heard before a final order is passed in the proceedings.

3. Learned counsel for the respondent has defended the impugned order dated 28-2-2005 dismissing the petitioner's application under Order XXXVII, rule 4, C.P.C. that gave the petitioner's confinement as the "special circumstances" for his non-appearance and seeking setting aside of the ex parte decree passed against the petitioner. He submits that the said application was filed on 11-2-2005 after considerable delay when the petitioner had been released from prison on 9-12-2004. He has also tried to distinguish the facts of the precedent case.

4. The salutary principle laid down by the Hon'ble Supreme Court in the precedent case referred above assures the right of a party to defend himself before a Court of law and not to be prejudiced on account of his imprisonment. Quite apart from the rules of natural justice a reasonable opportunity to defend is inherent to the fundamental right of access to justice recognized by the Hon'ble Supreme Court in Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445. The opportunity to defend necessitates that a party should be provided access to counsel and an opportunity to answer the case against him. In the light of the foregoing principle the ex parte order passed by the learned trial. Court on 19-10-2004 was harsh for adopting the basis that the petitioner had been served on the report of the process server dated 5-10-2004: that the petitioner refused to accept service in jail. The trial Court ignored the other report on the summons by the Superintendent, District Jail, Lahore that the petitioner's refusal to accept service was to obtain legal advice and to appear in Court personally to comply with the judicial order. In other words, the petitioner was seeking an opportunity to access legal advice and to appear in Court personally. This opportunity was denied by the ex parte order dated 19-10-2004.Even the impugned order dated 28-2-2005 passed on the petitioner's application under Order XXXVII, Rule 4, C.P.C. for setting aside an ex parte decree passed on 9-12-2004 took D notice of the report by the Superintendent, District Jail but failed to draw the necessary inferences from it. No consideration was given to the meaning of the statutory criterion of "special circumstances" in Order XXXVII, rule 4, C.P.C. for setting aside an ex parte decree. The physical confinement of the petitioner in jail is certainly not a case of wilful abstention by the petitioner not is it an occurrence of a routine nature. It is indeed a special circumstance that prevented the petitioner from attending the Court in answer to its summon and constituted a good ground to explain the petitioner's non-appearance. To promote' the interest of justice, it was necessary for the petitioner in this case to have been granted a substantive opportunity to defend himself. The impugned order accordingly suffers from material irregularity in the appreciation and application of the relevant law. It is therefore set aside.

5. The parties are directed to appear before the learned trial Court on 31-10-2005 when the petitioner's application for leave to defend shall be decided on merits. The learned trial Court shall endeavour to decide the suit pending before it at the earliest possible. Petition allowed. M.B.A./M-1347/L?????????????????????????????????????????????????????????????????????????????? Petition allowed.