P L D 1964 (W (PLP)

Mir Kharait Ali for Respondents. Date of hearing: 20th April 1964. The short point involved in these three connected revision peti tions arising out of the same suit is whether a defendant who has been proceeded against ex parte in a suit before the Court, is pre cluded from appearing at a subsequent stage, if he does not first get the ex parte proceedings set aside under Order IX, rule 7, Civil Procedure Code.

2. The facts leading to these revision petitions are very simple and may be set out briefly. A suit for possession by partition of immovable property and for joint possession of agricultural land was brought on the 24th of May 1954, by the plaintiff‑respon dents against the petitioners. The suit proceeded and on various occasions one or more of the defendants absented themselves and were proceeded against ex parse and ultimately when the suit had undergone my transfers for administrative reasons, it was entrusted for disposal to Mr. Hasan Nawaz, Civil Judge at Lahore, who issued notices to the defendants, as required by rule 6, Chapter XIII of the High Court Rules and Orders, Volume I. After service was complete, the transferee Court passed the impugned order on the 19th of December 1961 in Civil Revision No. 160 of 1962, operative part of which order is to the following effects :‑ "Kazi Muhammad Ashraf has power‑of‑attorney from defen dants Nos. 2 and 9 but since they had been proceeded against ex parte, Mr. Kazi cannot appear on their behalf without the ex parte proceedings having been set aside." Civil Revision No. 382 of 1962 is directed against the order dated the 30th of April 1962 of the trial Court, with regard to the effect of ex parte proceedings taken against defendant No. 1 having not been set aside. In the third revision petition (No. 713 of 1962), the order sought to be revised is dated the 18th of Octo ber 1962, in which the learned Civil Judge has held that because of the demise of Mst. Sardar Begum, defendant No. 10, she having been proceeded against ex parte before her death, defendant No. 1 could not be permitted to contest the suit as her legal representative, without first getting the order for proceeding ex parte set aside. This order was passed on the application moved by Ata Muhammad petitioner (defendant No. 1) seeking permis sion to contest the suit as a legal representative of the said Mst. Sardar Begum.

3. After this brief history, I proceed to examine the aforesaid common legal question arising in the three petitions. The case has been argued before me at length by the learned counsel for the parties and reliance has been placed on Syed Mushtaq Ali and others v. Master Khushi Muhammad (P L D 1961 Lah.792) on behalf of the respon dents. The various authorities noticed in the said case have also been placed before me and it has been urged that "as soon as the defendant defaults in appearance, he is dead for the purpose of putting in appearance in the suit, and even if he physically appears in Court later, his appearance cannot be recognised as appearance for the purposes of the suit. But if he succeeds in satisfying the Court that he had good cause for his previous non appearance, then the Court may, upon such terms as the Court directs as to the costs or otherwise, revive him and hear him in answer to the suit as if he had appeared on the date fixed for his appearance". It appears that the conclusion in Syed Mushtaq Ali and others v. Master Khushi Muhammad are mainly based on an Indian decision reported as: Mst. Tulshe Devi v. Sri Krishna (A I R 1949 Oudh 59) and two decisions of the Sind Chief Court Gangaratn Samandas v,. Deoomal Nihalchand (A 1 R 1929 Sind 46) and Hariram Rewachand v. Pribhdas Mulchand and others (I L R 1945 Kar. 1). With great respect to the learned Judge, I consider that the proposition of law has been rather broadly stated.

4. As early as 1925, Wallace, J. of the Madras High Court in Venkatasubbish v. Lakshminargsimhem (A I R 1925 Mad. 1274) observed that ex parte merely means in the absence of the other party. On the other hand, some authorities took the view that once the absence of the defendant is recorded by the Court, the Court is at liberty to pro ceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non‑appearance, or, in other words, as has been laid down by the learned Single judge in Syed Mushtay Ali and others v. Master Khushi Muhammad as absentee defendant was dead for the purpose of putting in appearance in the suit and even if he physically appeared in Court later, his appearance could not be recognised as appearance for the purposes of the suit unless and until his previous non‑appearance had been condoned under Order IX, rule 7, Code of Civil Procedure. The Full Bench decision of the Oudh High Court relied on by the learned Single Judge is an authority for this latter view, which decision, however was overruled by the Supreme Court of India in Sangram Singh v. Election Tribunal Kotah and another (A I R 1955 C 425), in which all the arguments advanced in favour of this view have been repelled.

5. When we examine the various provisions of the Code of Civil Procedure, namely, sections 27, 30, 32, Orders V, VIII, IX and XVII with regard to summons to defendants, discovery and penalty for default, issue and service of summons, written state ment, appearance of parties and consequences of non‑appearance and adjournments, we find that under Order IX,‑rule 6 (1) (a) where the plaintiff appears and the defendant, does not appear, when the suit is called on for hearing and it is proved that the summons was duly served, the Court may proceed ex parte. It is well‑settled that Order IX, rule 6 (1) (a), only applies to firs hearing of the suit and is not applicable to subsequent hearing and, therefore, this recording of ex parte order is to be viewed in1 that context only. If the summons is for final disposal of the suit and the defendant defaults in appearance on the first hearing, the Court may proceed ex parte and record evidence in the case and ultimately pass an ex parte decree, remedy against which has been provided for in the Code under Order IX, rule

13. If, however, the summons is for settlement of issues, the Court merely record the statement of fact that the proceedings are ex parte against the absentee defendant and the case has to be adjourned for further proceedings. Order XVII of the Code of Civil Procedure deal with adjournments and under rule 1 of this Order the Court ha E been armed with the authority to adjourn the hearing of the suit from time to time. To this rule, sub‑rule (3) has been added by the High Court of West Pakistan in the following words:‑ "Where sufficient cause is not shown for the grant of an adjournment under sub‑rule (I), the Court shall proceed with the suit forthwith." (1) A I R 1925 Mad. 1274 (2) A I R 1955 S C 425 The question, therefore, is that if the case is adjourned by the Court by virtue of its power under Order XVII, rule 1, and a default in appearance is made by the defendant, how the proceedings in the suit are to be conducted from that stage? For that purpose rule 2 of Order XVII point, which gives power to the Court to dispose of the suit in one of the modes directed in that behalf by Order I or make such other order as it thinks fit. Under rule 3 of the same order, however, where any party to a suit to whom time has been allowed fails to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, the Court is empower ed to proceed to decide the suit forthwith. Therefore, by virtue of Order XVII, rule 2, in the case of non‑appearance of the defend ant on an adjourned hearing, the Court falls back on the procedure provided in Order IX, with the result that absence on an adjourned hearing may also entail recording of absence under Order IX, rule 6 (1) (a), but that does not necessarily mean that an ex parte order has been passed by the Court in the nature of an ex parte decree or order which has been contemplated under other provisions of the Code, nor does it mean that for all future proceedings in the suit, the absentee defendant is to be consi dered to be dead. Therefore, a party cannot be stopped from participating in the proceedings simply because of its non‑appear ance on the first or some adjourned hearing. The learned counsel tried to derive strength for his argument from the words "at or before such hearing" by saying that such hearing means the first adjourned hearing and if he does not appear on the first adjourn ed hearing after the ex parte order or before that first adjourned hearing, he loses his right to appear before the Court I am afraid this interpretation cannot be spelt out of the wording of the rule itself, because rule 7 is more of an enabling provision with respect to the setting aside of the ex parte proceedings and it does not mean that once the defendant has defaulted in appearance and he does not appear even on the first adjourned hearing or some date earlier than that and does not assign good cause for his previous non-appearance he is debarred from appearing and participating in the proceedings for all further stages. All that the rule says is that if he does show a good cause for non appearance the Court may set aside the ex parte proceedings upon such terms as the Court directs and the defendant maybe heard in answer to the suit as if he had appeared on the date fixed for his appearance. In other words, under rule 7, the absentee defendant cannot be relegated to the position, he would have occupied if he had appeared, unless he shows good cause for his previous non‑appearance. Therefore, if he appears on the date) to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he commit ted default in appearance on the first or some other hearing. The entire scheme of the Code is that persons should be given a proper and full hearing to defend themselves and it nowhere says that the parties are to be deprived of their right of hearing and repre sentation before the Court unless of course the penalties provided in the Code are attracted. The provisions of Order IX, rule 6, are pot o that nature and it can be safely said that to turn the provisions of Order IX, rule 6, into penal provisions will result in great hardship on the defendant and will not be in accord with the provisions on the subject, reference to which has already been made above.

6. In the result I hold that the learned trial Court refused to exercise jurisdiction vested in it in not permitting the petitioners in all the three revision petitions to appear and participate in the proceedings from the time of their appearance without first getting the ex parte proceedings set aside. The orders, therefore, are set aside and the revision petitions allowed. However, there will be no order as to costs. x. M. A. Petitions accepted.