P L D 1976 Karachi 412 (PLP)

Date of hearing: 7th November 1975. This revision application is directed against the order of the Additional District Judge, Nawabsbah, dated 16-12-1974 dismissing the appeal of the applicant against the order of the Civil Judge, Naushehro Feroze on 16-12-1974, declining to set aside ex parte decree passed against the applicant.

2. Briefly the facts are that the two respondents had filed a suit against the, applicant in the Court of Civil Judge, Naushehro Feroz, being Suit No. 3/73 for possession of suit land, mesne profits and permanent injunction. The applicant/defendant filed written statement resisting the suit. Thereafter the case was adjourned from time to time for one reason or another. Ultimately the case was fixed for hearing on 3-9-1973. On that date the order-sheet shows that the parties' counsel were present and an application for adjournment was moved and the case was adjourned to 21-9-1973. But the said adjournment application is not on the file of the original suit. On 21-9-1973 the plaintiffs' counsel was present with the attorney of the respondent/plaintiffs, but neither defendant, nor counsel was present. The learned Judge recorded the evidence of the attorney and decreed the respondent's suit.

3. The applicant then moved an application under Order IX, rule 13, C. P. C. for setting aside the ex parte decree passed against him on 21-9-1973, on the ground that he was seriously ill with asthma and there was also a mistake on the part of his Advocate with regard to the date of hearing. This application was rejected by the successor Civil Judge, Naushero Feroze, on the ground that the decree was passed on merits after recording evidence, under Order XVII, rule 3, C. P. C., as stated in the title head of judgment itself, and therefore the application under Order IX, rule 13 was not maintainable, and that the proper course for the applicant/ defendant was to file an appeal against the judgment and decree.

4. Being aggrieved by this order the applicant filed an appeal to the Court of Additional District Judge, Nawabshah. The learned Appellate Court agreed with the order appealed from for the same reasons and dismissed the appeal. The applicant has now come up in Revision to the High Court.

5. Mr. Jamaluddin Shaikh learned counsel for the applicant submit ted that both the lower Courts erred in holding that the ex parte decree was passed under Order XVII, rule 3, C. P. C. as that rule was not attracted in the circumstances of the case. His submission is that it cannot be applied unless time has been granted to a party at his request to do one or other of the three things mentioned in that rule viz., to produce evidence ; to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit. and unless default has been committed by such party in doing the act for which time was granted. In this connection, he referred to Abdul Majid v. Wall Muhammad (P L D 1963 Kar. 171), K. S. Abdul Latif v. The Republic of Pakistan and others (P L D 1971 Quetta 77) and Maulvi Abdul Azlz Khan v. Mst. Shah Jahan Begum and 2 others (P L D 1971 S C 434 ).

6. As the application for adjournment moved on 3-9-1973 is not in the suit file, it is not possible to say whether the application was filed by the applicant/defendant for adjournment to produce his evidence or whether it was filed by the respondent/plaintiffs. It must therefore, be presumed that the adjournment was granted on the general request of both counsel and not on the request of the applicant.

7. In this view of the matter, it must be held that the ex parte decree passed by the Court was under Order XVII, rule 2, C. P. C. It is true that the trial Court recorded the evidence of the plaintiffs' attorney and gave findings on the issues in the suit, although under the Law Reforms Ordinance, 1972, it was not necessary to do so as an ex parte decree can be passed without recording evidence. The fact that evidence has been recorded or that the trial Court expressly mentioned that the judgment was passed under Order XVII, rule 3, C. Y. C., does not mean that the ex parte decree must be deemed to have been passed under Order XVII, rule 3, C. P. C.

8. I am, therefore, of the view that the appellate Court erred in rejecting the applicant's application under Order IX, rule 13, C. P. C. 'for setting aside the ex parte decree and in so doing has failed to exercise jurisdiction vested in it by law. For these reasons, I would allow this Revision Application with costs and remand the case to the trial Court for deciding the application under Order IX, rule 13, C. P. C. on its merits. Order accordingly. S. Q. Petition accepted.