1993 PLP 227 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.IX, R' & S.115‑‑.Setting aside ex parte proceedings‑‑‑Trial Court exercising discretion arbitrarily and capriciously by neither framing issues, nor giving opportunity of producing evidence to defendant had dismissed his application for setting aside ex parte proceedings illegally, which order was, thus, not maintainable‑‑‑Case was remanded to Trial Court for decision on merits. Mian Nisar Ahmad for Petitioner. Nemo for Respondents. Date of hearing: 31st October 1992. Briefly stated facts of the case out of which this civil revision has arisen are that in a suit for recovery of damages, the petitioner was proceeded against ex parte vide order dated 9‑2‑1974. An application was submitted by the petitioner for setting aside of the said order on the ground that on 21‑1‑1974 a power of attorney had been executed in favour of Mr. Talib Rizvi Advocate on whose behalf Mr. Shamim Zaidi had appeared in a bona fide belief that the original learned counsel would appear on the next date of hearing, he. did not appear on the next date. Mr. Talib Rizvi also did not appear, as the case was not noted in his case diary. On 19‑5‑1974 it transpired that the petitioner has been proceeded against ex parte for absence on 9‑2‑1974. The petitioner immediately applied for setting aside of the order of ex parte proceedings. This application has been contested by the plaintiff respondent on the ground that the application is barred by time and that the absence of the applicant as well as his counsel was intentional. Learned Senior Civil Judge dismissed the said application without putting the same to issues and without giving an opportunity of leading evidence to the parties vide order dated 23‑11‑1976. Learned Senior Civil Judge held that application is barred by time and further that the application cannot be moved beyond the date next to the one on which the ex parte proceedings are taken. Learned Senior Civil Judge has also held that the petitioner as well as his learned counsel was present and therefore they should have appeared on the date and time when the case was called. This order has been challenged bythe applicant in this civil revision.

2. Mian Nisar Ahmad learned Advocate for the petitioner has argued that the application could not have been dismissed without framing of issues and without giving an opportunity of leading evidence if the learned trial Court was not satisfied with the sufficiency of the cause for the absence of petitioner as well as his learned counsel which has fully been explained in the application supported by an affidavit which explanation is not unnatural. Learned counsel further argued that the period of limitation for filing of such an application will be three years inasmuch as the ex parte proceedings were taken not on the first date fixed for appearance of the defendant but during the course of proceedings in the suit and therefore it is Article 181 which covers the case and as such the learned trial Court wrongly held that the application was barred by time. It is further contended that the findings of the learned trial Court that the application could only have been filed on the next date to the one on which the ex parte proceedings were directed to be held is also misconceived and is based upon misunderstanding of the correct legal position. It is contended that the words `next date of hearing' had got no nexus with the date on which the ex parte proceedings were held and application under Order 9, Rule 7 of the C.P.C. can be filed on any time and on any date prior to the passing of ex parte decree. It is contended that the law favours adjudication on merits and even otherwise the petitioner had a right of participation in the proceedings hence the application should have been granted, but the trial Court has exercised discretion arbitrarily and with a material irregularity by dismissal thereof. None of the respondents has appeared to oppose this appeal although they have been served through notices issued for today, they are therefore proceeded against ex parte.

3. I have considered the arguments addressed by the learned counsel for the petitioner. It is quite clear that the learned trial Court did not decide the A question of sufficiency of the cause of non‑appearance of the petitioner as well as his learned counsel specifically nor any issue was framed nor any evidence was allowed to be led by the petitioner. The cause mentioned in the application which is supported by an affidavit is sufficient in law and therefore, there was a sufficient cause for absence of the petitioner as well as his learned counsel on the date of hearing. The application is not barred by time inasmuch as such an application is governed by Article 181 of the Limitation Act, which provides period of three years, and therefore finding of the learned trial Court is illegal and is not maintainable. Finding of the learned trial Court to the effect that the application could have been moved only on the next date of hearing to the one on which the ex parte proceedings were ordered is also misconceived. The words used under Order 9, Rule 7 do not so contemplate. The application for setting aside of the ex parte proceedings can be filed at any time and by any date prior to the passing of ex parte decree. Even otherwise law favours adjudication on merits and technicalities should not be allowed to stand in the way of administration of justice. It is a suit for payment of damages. Technical knock out cannot be permitted in such $ like cases which should have been decided after giving an opportunity of being heard to both the parties. Learned trial Court has exercised discretion arbitrarily, capriciously and hence the impugned order has been passed illegally and without a material irregularity and as such the same is not maintainable.

4. In view of the above, this civil revision is accepted, impugned order is set aside and the order of ex parte proceedings is set aside and the case is remanded to the learned trial Court for decision on merits with costs. AA./F‑53/L Revision accepted.