P L D 1969 Quetta 81 (PLP)

Mirza Muhammad Ahmed for Respondent. This Revision application under section 23 of the Dasturui Amal Diwani, Kalat, read with section 115 of the Civil Procedure Code, has been made to question the validity of the order of the Deputy Commissioner, Kachbi dated the 8th of July 066 made by him in exercise of his appellate powers, by which he dismissed the appeal of the present applicant, which was filed to question the order by which the present applicant's application, for setting aside the ex parte decree which was passed against him, was dismissed.

2. The facts which form the background, briefly stated, are that the respondent filed a suit for the recovery of Rs. 5,285 against the present applicant, and notice was issued to the present applicant to appear before the Hakim for answering the claim. The applicant, who was the defendant, did not appear before the Hakim in spite of service on him, with the result that the Hakim decided, after a few adjournments to proceed ex parte against him. His ex parte order is dated the 3rd of July 1964, by which he decreed the suit of the respondent against the present applicant without examining the merits simply on the ground that the applicant had failed to appear and plead against the claim. The case of the present applicant is that he was ill; therefore, was unable to appear before the Hakim. He, therefore, applied for setting aside of the ex parte decree on the 15th of October 1965, which application was dismissed by the Hakim on the 9th of February 1966 on the ground that it was barred by time. The applicant then went in appeal against that order, which has been dismissed by the Deputy Commissioner, as mentioned above.

3. Mr. Hanafi, appearing for the applicant, has taken the that even if the application for setting aside the ex parte decree of the present applicant was barred by time, the ex parte decree, which was passed against him, cannot be sustained because it was passed by the Hakim, who is the Nazim of Dhadhar, without the jurisdiction to do so.

4. In support of this contention, he has relied on sections 6 and 22 of the Dasturul Amal Diwani, Kalat. Section 6 of that Code provides that if a defendant fails to appear in spite of service, then the Nazim can order ex parte proceedings against him, and section 22 of the same Code provides that civil suits are to be decided by the Qazi according to the Islamic Shariat and by a Jirga if the parties are not Muslims. Counsel argued that the Nazim could not pass a decree after ordering ex parse proceedings, but had to forward the record to the proper authority, who had the jurisdiction to proceed further. That authority in this case, according to counsel. was a Jirga or a Panchayat, in terms of section 11 of that Code, because the parties are Hindus.

5. The relevant provision of section 11 is that if the parties are Hindus, then their suit will be entrusted to a Panchayat or a Jirga consisting of members, NN‑hose Hindu members will not be less than half of the total number, and that the Wazir‑i‑Azam or, at present, the High Court, will make the final order in accordance with the opinion of that Panchayat or Jirga. The power of appointing the Jirga vests, according to counsel for the parties, in the Hakim or Nazim.

6. Mr. Mirza Mohd. Ahmad, however, does not agree with the above view of law, and has contended that the fact that the Nazim was vested with the power of ordering ex parse proceedings in terms of section 6 of the said Code, it should be presumed that he had the power to give the final decision also in consequence of the ex parte proceedings. In support of this contention, counsel has argued that there is no other provision besides section 6 in the said Code, which authorises any other authority to hold ex parte proceedings and to grain an ex parte decree. He took the stand that section 22 is not exhaustive inasmuch as it does not apply to a case in which ex parte proceedings take place. Counsel's interpretation of the said Code, therefore, is that the Hakim or the Nazim could order ex parte proceedings and grant ex parte decree. Counsel has also objected to the exercise of revisional powers by this Court with reference to the validity of the ex parte decree, because the applicant has only questioned the order by which the Deputy Commissioner as well as the Hakim declined to set aside the ex pare decree.

7. The answer to the last contention of counsel is to be found in Mchd. Swaleh v. Messrs United Grain and Fodder Agencies (PLD 1964 SQ 97), according to which the revisional powers ought to be exercised by this Court for correcting obvious errors of law, even if a revision application does not directly attack it when the .s error comes to the notice of this Court. Ira that case, a Single Judge of this Court had dismissed a revision application on the ground that it was barred by time, but the Supreme Court held that the previous order to the one which was under revision, was without authority; therefore, the learned Single Judge ought to have exercised revisional powers and set aside that order. In conclusion, their Lordships have explained the revisional powers as follows : "Once the High Court is seized of the case in exercise of such jurisdiction, it can in accordance with section 115 C. P. C., make such other order in the case as it thinks fit."

8. In view of the above authority of tire Supreme Court, I proceed to consider the objection of Mr. Hanafi that the ex parte order passed by the Hakim or the Nazim of Dhadhur was without jurisdiction. I may mention that the interpretation which has been advocated to by Mr. Mirza Mohd. Ahmed does rat not appeal to me as fair and just to the party against whom ex parte proceedings may be ordered, because the consequence of his interpretation would be that the Hakim would be able to grant an ex parte decree with blindfolded eyes as soon as he comes to the conclusion that the defendant has failed to appear in spite of service because admittedly he has no jurisdiction to try suit. The present view of the law as enunciated by the Supreme Court in a matter of this nature is that the Court cannot grant an ex parte decree without applying its mind to the facts and the law of the case‑See in this respect East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663). Moreover purely technically, there seems to be no reason for giving a restricted meaning to section 22 of the said Code by excluding from its ambit those cases in which ex parte proceedings may have been ordered. Full effect can be given to the meaning of that section consistently with the provisions of the said Code, if the above‑mentioned provision contained in section I 1 of the said Code is given effect to, because the Hakim, who orders ex parte proceedings under section 6, is also expected to appoint a Panchayat or a Jirga as contemplated by section 11, and entrust the case to that Jirga to proceed ex parte. The Panchadat or the Jirga would then be expected to try the case in a manner which is appropriate in a case in which ex parte proceedings have been ordered. This interpretation is also consistent with the provision of the Code, that in a suit to which the parties are Hindus, the decision will be given by a Panehayat or a Jirga consisting of members, whose number is not less than half of its total strength. As against this, If the interpretation placed OR the Code by Mr. Mirza Mohd. Ahmed is accepted, then the Hakim or the Nazim, whoever it may be, will become entitled to decide the case in which both the parties may be Hindus. This would be inconsistent with section 11 of the said Code.

9. Mr. Mirza Mohd. Ahmed has criticized the above view by referring to the opening words of section

11. A translation of the section is as follows "On the appearance of parties, the Hakim will try to bring about a conciliation or to have the matter decided by arbitration, or according to the Shariat, and if the subject matter is governed by usage or custom, or it is required that the decision should be made by a Jirga, then the case la to be placed before a Jirga with the permission of tire Wazir‑i Azam." Counsel emphasised the words "on the appearance of the parties" and contended that there cannot be appearance of the parties if ex parte proceedings have already been ordered. But the reply is that the provisions of the C. P. Code have been made applicable to the Courts functioning in KaIat Division with effect from 15th of October 1955 by virtue of Ordinance XXI of 1960. Counsel for the parties agree that this is correct. They also agree that the provisions relating to the preliminary entertainment of a plaint contained in the said Code, called the Dastural Amal Diwani, Kalat, are stilt applicable. If the provisions of the Dasturul Amal are applicable with respect to the entertainment plaints only, then too it follows that for purposes of continuing ex parte proceedings until the disposal of a suit, after an c‑x parte order is made by the Hakim under section 6, and a Jirga is appointed under section 11, the C. P. C. should be applied. From this point of view also, an ex pane decree cannot be granted unless the Court applies its mind to the facts of the case and the relevant law. If this view is correct, then the interpretation placed by Mr. Hanafi on section 6 read with section 11 and section 22 of the Dasturul Amal should be accepted.

11. I am accordingly of the opinion that the Hakim could order ex parte proceedings, but thereafter he had to appoint a Panchayat or a Jirga, because the parties are Hindus, and it was for the Panchyat or the Jirga to decide the case in accordance with the provisions of the C. P. Code. In this view of the matter, the ex pane decree granted by the Hakim in this case is without jurisdiction and of no legal effect, and is hereby set aside.

12. The above decision does not affect the jurisdiction of the Hakim to order ex parate proceedings; therefore, to that extent his order stands. He will now appoint a Jirga or a Panchayat in terms of section 11 of the Dasturul Amal, so that the ex parte proceedings may be taken and completed. Such proceedings before the Panchayat or Jirga will be governed by the Code of Civil Procedure in the manner and to the extent held by this Court in Dost Alohd. v. Rais Satik (P L D 1962 Quetta 82). The parties are left to bear their own costs. A. E. Ex Parte decree set aside.