P L D 1991 Peshawar 25 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This Regular First Appeal is directed against the order dated 15‑4‑1990, of a learned Civil Judge First Class, Peshawar, whereby, he dismissed the application of the defendants‑appellants for setting aside ex parte decree for recovery of Rs.2,00,000 as damages against them.

2. Facts giving rise to this appeal are that WAPDA through Project Director SCARP and Executive Engineer, Peshawar SCARP, undertook the remodelling of the drain, namely, Branch No.2 of Muhammad Zia Drain as part of its reclamation Project through Bakhtawar Shah defendant No.5. On 20‑9‑1981 Umar Bakhsh plaintiff‑respondent filed a suit against Chairman WAPDA and 4 others, in forma pauperis, for recovery of Rs.2,00,000 as damages. The case of the plaintiff‑respondent as set up in the plaint and later tried to be established in the witness‑box was that on account of excavation of a drain by the defendants‑appellants his house had collapsed and thus claimed Rs.2,00,000 as damages therefor. According to averments in the plaint, plaintiff‑respondent was pauper and hence the suit.

3. Defendants Nos.l to 3 contested the suit who, in their joint written statement, pleaded that the plaintiff had neither cause of action nor locus standi; that the suit was not maintainable in the form it had been filed; that the plaintiff was not pauper; that he was estopped by his conduct and; that the suit was "mala fide, false, frivolous" and as such the defendants were entitled to compensatory costs. On merits, liability to pay any costs due to the alleged collapse of the plaintiff's house was denied. The learned trial Court, in view of the respective pleadings of the parties, concluded the following issues:‑‑ (1) Whether the plaintiff has got a cause of action? (2) Whether the plaintiff is entitled to recover Rs.2,00,000 as damages from the defendants? (3) Whether the suit is deficiently stamped, if sc, its effect? (4) Whether the suit is bad in its present form? (5) Whether the defendants are entitled to compensatory costs? (6) Whether the plaintiff is estopped by his conduct? (7) Relief.

4. The application for permission to sue in forma pauperis was initially contested by the answering defendants as well as Collector (defendant No. 6). Nonetheless, the order‑sheet dated 17‑12‑1985 records that defendants had declined to adduce evidence in rebuttal and that in consequence, the plaintiff‑respondent was allowed to sue in forma pauperis. The case was fixed for evidence. After an adjournment at the instance of the counsel for defendants, the plaintiff‑respondent's evidence was recorded and the case was posted to 25‑11‑1986 for the evidence of defendants‑petitioners. Since they had failed to adduce evidence, therefore, the case was first adjourned to 25‑11‑1986 then to 15‑2‑1987, thereafter to 18‑4‑1987 and finally to 8‑6‑1987, when not only the defendants were absent but their counsel was also not in attendance. Resultantly, the learned trial Judge decreed the suit of the plaintiff‑respondent ex parte.

5. On 17‑6‑1987, the defendants‑petitioners moved an application for setting aside ex parte decree. It was contested by the plaintiff‑respondent. After recording statement of one witness each on behalf of the parties, the learned trial Judge, by impugned order dated 15‑4‑1990, dismissed the application. Feeling dissatisfied, the defendants‑appellants have come up in this Regular First Appeal.

6. The learned Advocate‑General appearing on behalf of the appellants, submitted that the learned trial Court had fallen into error in passing, under Order XVII, Rule 3, C.P.C., the impugned judgment and the decree ex parte. He also urged that the decision reached under Rule 3 ibid warrants decision on merits and not in the summary manner, it has been decreed.

7. The learned counsel for the plaintiff‑respondent had seriously defended the impugned judgment and the decree and maintained that in the instant case the time was granted to the appellants not once but twice to adduce evidence but they defaulted in doing so, the learned trial Court had rightly decreed the suit ex parte.

8. We have perused the record of the case carefully with the assistance of the learned Advocate‑General and the learned counsel for the respondent. We regret to observe at the outset that learned trial Judge had erred to allow the plaintiff‑respondent to sue as pauper without complying with the procedural formalities laid down in Order XXXIII, C.P.C. In this context, provisions of Rule 4 thereof were not adhered to and even the plaintiff‑applicant was not examined. Even if this omission is ignored and notwithstanding the failure of the appellants to seriously contest the application, the trial Court was required to have fixed a day with notice to the appellants and the Government Pleader for recording within the contemplation of Rules 4 and 6 ibid such evidence as the applicant wished to adduce in proof of the respondent's pauperism. Under Rule 7 ibid the Court is bound to inquire into the plaintiff's pauperism. In the instant case, the trial Court had conveniently ignored this mandatory provision of law by merely observing on the order‑sheet dated 25‑11‑1986 that the appellants were not inclined to adduce "evidence in rebuttal" and in consequence, the applicant‑plaintiff was allowed to sue as a pauper. Legally speaking, the applicant‑plaintiff and his witnesses should have been examined, heard arguments which the parties desired to offer "on the question whether on the face of the application and of the evidence (if any) taken by the Court the applicant was or was not subjected to any of the prohibitions specified in Rule 5 and ought to have allowed or refused to allow the applicant to sue as a pauper." The learned trial Judge having not complied with these provisions of Order XXXIII, C.P.C. had committed illegality or material irregularity by allowing the applicant‑plaintiff to sue in forma pauperis. In exercise of our powers under section 115, C.P.C., the aforesaid order of the learned trial Court is set aside.

9. There is every force in the contention of the learned Advocate‑General who represented the appellants that the learned trial Court had erred in passing the ex parte decree summarily without decision on merits and without discussing the material issues. In support of this proposition we may refer to Muhammad Haleem v. H.E. Muhammad Naeem PLD 1969 SC 270.

10. In the instant case, the onus to prove that the house in dispute in fact belonged to the plaintiff‑respondent; that how much was its covered area; that it had in fact collapsed due to any act of omission or commission which is attributable to the appellants and that the extent and quantum of damages had been determined by an expert and independent witness. The suit had been 8 decreed without having recourse to the abovementioned points and without discussing any evidence. In such a situation, it is incumbent upon the trial Court to decide the suit on merits rather than passing the decree in a summary manner without any discussion on the issues involved in the controversy. This view was expressed by their Lordships of the Supreme Court in Muhammad Haleem's case cited above and laid down that:‑‑ "In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non‑prosecution. The entire evidence had been led and the Court should have come to a decision on merits in the matter." This proposition was later on followed in few other reported decisions including that of Dalel Khan v. Province of West Pakistan PLD 1970 Quetta

79. The ratio in these cases is that the Court under Rule 3 of Order XVII, C.P.C. had "to proceed to decide the suit forthwith." By a decision "forthwith" it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide case on the same day. Nonetheless, a decision "forthwith" is, however, to be a decision on merits. It must be on consideration of such material on the record as it is necessary. It does not at all mean that it should be a summary decision. There is, however, one caution which need to be emphasized. The rule can be pressed into service when it is possible to decide the case on merits and it, therefore, cannot apply when the suit is at a preliminary stage. In another case it was pointed out that if a party has to discharge the onus of proof of an issue which is only a preliminary issue and fails to do so, the suit cannot be decided under Order XVII, Rule 3, C.P.C., unless the decision also affects the merits of the case.

11. In view of what has been discussed above, we are of the opinion that there was every justification for the Court to have refused further adjournment to the defendants‑petitioners to adduce evidence. Nonetheless there was absolutely no warrant in law to have decreed the suit summarily. In exercising the powers under Rule 3 of Order XVII, C.P.C., the learned trial Judge was required to have decided the case on merits.

12. In this view of the matter, the order of the learned trial Judge allowing the plaintiff‑respondent to sue as a pauper; the impugned order dismissing the application for setting aside the ex parte decree and; the ex parte decree for recovery of Rs.2,00,000 as damages against the appellants are set aside on payment of Rs.500 as costs. Resultantly, the case is remanded to the learned trial Judge to proceed with it after allowing another chance to the parties to adduce evidence in the light of the directions made in paras. 8 and 10 ante. Since it is an old matter, the office is directed to expeditiously send the record of the case to the learned trial Judge who shall decide the dispute as early as possible. A.A./1174/P Case remanded