2007 PLP 2955 (YLR)

S.54

Civil Procedure Code (V of 1908), O.IX, R.6

Ex parte decree

Factual. controversy

Apportioning of liability

Grievance of plaintiffs was that to complete the project of government, contractor, without paying them compensation, excavated earth from their lands

Plaintiffs sought mandatory injunction against government and contractor for filling up of excavation

Trial Court passed ex party decree against both the defendants

Plea raised by contractor was that he had only executed the work order, therefore, decree should have been passed against government only--Contention of government was that the contractor had excavated earth from outside the limits demarcated for the purpose

Validity

Contest between contractor and government had been identified 'and there was nothing which prevented the government from raising factual controversy, even if such was to be done through amendment in their written statements

High Court without setting aside decree in favour of plaintiffs,' remanded the case to Trial Court to resolve the controversy between contractor and government, after taking evidence

High Court directed Trial Court to apportion the liability inter se between contractor on one hand and Government on other

Revision was allowed accordingly. JUDGEMENT JAWWAD S. KHAWAJA, J.

Mst. Bibi Nooran etc. (plaintiff/respondents Nos. 1 to 8) have been served and the name of the learned counsel also appears in the cause list. None has appeared on their behalf. They are, therefore, proceeded against ex party. 'The learned Assistant Advocate General states that Mst. Bibi Nooran etc. are no longer interested in the lis because the decree in their favour has already been satisfied through payment of a sum of Rs.3,95,000 to them by the Province.

2. The petitioner Messrs Ch. Miraj Din &Company is a partnership firm. The petitioner impugns the decree of the learned trial Court dated 20-10-1998 passed ex parte against the petitioner and respondents Nos.9 and 10 (Province of Punjab and XEN Irrigation). The petitioner has also impugned the order of the learned trial Court dated 20-2-2004 whereby an application filed by the petitioner seeking setting aside of the aforesaid ex parte decree has been dismissed, and, the order of the learned Appellate Court dated 26-10-2004 upholding the aforesaid dismissal.

3. The facts of this case are simple. The respondents Nos.1 to 8 filed a suit against the petitioner and respondent Nos.9 and 10 praying for a mandatory injunction directing the said defendants to fill up the excavation which., had been undertaken by then from land belonging to them. The case of the respondents/plaintiffs is that the defendants- had excavated earth from their land without paying compensation to them.

4. Learned counsel for the petitioner, firstly, argued that even if the ex parte testimony of the P.Ws. is considered, it will be apparent that they had contradicted themselves and as such, they are not reliable. On this basis, it was contended that a decree could not have been passed in favour of the respondents/plaintiffs. Secondly, it was argued that there is no evidence at all as to the quantum of compensation and the party which is liable to pay the same. To support this contention learned counsel has referred to the final para of the judgment of the learned trial Court wherein an ex parte decree has been passed in favour of the plaintiffs and against the defendants without spelling out the nature of the relief granted and without specifying the party liable under the decree.

5. Finally, learned counsel for the petitioner has argued that the petitioner was merely a contractor who had been awarded a civil works contract .by respondents Nos.9 and 10 vide work order dated 16-10-1995 and therefore, a decree if any could only have been passed against respondents Nos.9 and 10 and not against the petitioner Who simply executed the work order.

6. The above contentions lead to just one conclusion. The outstanding dispute now remains only between the petitioner and the respondents Nos.9 and

10. The learned Law Officer has argued that the contract awarded to the petitioner was only for the purpose of excavating earth and there was no element of acquisition of land. According to him the area from which the earth was to be excavated did belong to Mst. Bibi Nooran etc. However, the petitioner excavated earth outside the limits demarcated by respondents Nos.9 and

10. On this basis, it was .argued that the learned Courts below were obliged to apportion the liability between the petitioner as contractor and the respondents Nos.9 and 10 while passing the decree. This was necessary because of the dispute as to whether the petitioner excavated earth from an area outside the one identified by the Executive Engineer, Irrigation (respondent No.10).

7. Learned counsel for the petitioner stated that this issue was not agitated by the respondents Nos.9 and 10 in their written statement. This may be so. However, it is also apparent that both the petitioner and respondents Nos. 9 and 10 were defendants in the suit filed by Mst. Bibi Nooran etc. These defendants did not lead evidence. The ex parte decree was thus passed in favour of Mst. Bibi Nooran etc. (respondents/ plaintiffs).

8. The contest between the petitioner, on the one hand, and respondents Nos.9 and 10, on the other, has now been identified and there is nothing which prevents respondents Nos.9 and 10 from raising the factual controversy mentioned above, even if this is to be done through an amendment in their written statements.