1992 PLP 510 (MLD)

C.M. Latif for Respondents Nos. 2 and

3. This civil revision arises out of a civil suit for declaration of ownership rights, m respect of a vacant plot of small size, situated in village Kotli Bhatta, Teh,il anti District Sialkot and for confirmation of possession on it and in the alternative for acquisition of prescriptive title to it, because of holding it in adverse possession for a requisite period.

2. Plaintiff's case was that he was owner in possession of the plot; defendants had no right or interest therein, and in case of non‑proof of his ownership, plaintiff stated that he had acquired prescriptive title to the plot in question by holding it adversely for a period exceeding twelve years. Plaintiff further stat6d that defendants Nos.l and 2 were trying to interfere with his possession on the plot in question and had gathered bricks at the spot for raising constructions on it. Civil suit was instituted on 15‑5‑1979 in Civil Court at Sialkot. Defendants Nos.l and 2, namely ‑Hassan Din and Muhammad Hussain submitted joint defence. It was submitted that they held possession of the plot in question as its true owners, and the plaintiff had by colluding with defendants Nos.3 and 4 commenced civil action to cause harassment to them. On 17‑12‑1979, civil suit was adjourned to 26‑2‑1980 for filing of written statement by defendants Nos.3 and

4. On the adjourned date, since defendants Nos. 3 and 4 did not appear, they were proceeded against ex parte, whereas, the other defendants were represented by their counsel whose presence was marked in the order sheet maintained by the trial Court and civil suit was adjourned to 10‑2‑1980 for settlement of issues on merits. On this date of hearing since all the defendants were found absent when the suit was called on for hearing the trial Court proceeded ex parte against them, and without recording evidence, in terms of Order 9, Rule 6(1)(a),.C.P.C. decreed the snit ex parte. On 16‑3‑1980, defendants Nos. l and 2 applied for setting side of the ex parte decree passed against them on 10‑2‑1980. Plea taken by them for setting aside of ex parte decree was that on 17‑2‑1979, civil suit was adjourned on 26‑2‑1980, and, the same date of hearing was recorded by their counsel in his diary and on his brief cover. On 26‑2‑1980, defendants Nos.l and 2 attended the Court but finding their case missing from the cause lis of the Court, they inquired from Reader to the Court about actual date of hearing fixed in their suit who told them that the date of hearing fixed in the suit was 26‑3‑1980 and the same date was again recorded in the diary of their counsel. On 15‑3‑1980, plaintiff s son proclaimed in the village that the suit had already been decreed in favour of his father. Upon gaining this information, defendants Nos.l and 2 attended the Court on 16‑3‑1980, and upon inquiry, true facts were revealed to them. On the same day, i.e. 16‑3‑1980, defendants submitted an application under Order 9, Rule 13, C.P.C. for setting aside of the ex parte decree passed against them. These facts about misconception relating to dates of hearing were enumerated in the application with details. It may be observed here that the application for setting aside of the ex parte decree was filed by the same learned counsel, who conducted the defence of the defendants in the civil suit and thus subscribed to the truth of the averments in it. Additionally, averments in the application were supported by the affidavits of the defendants. Plaintiff contested the application for setting aside of the ex parte decree and refuted the averments contained in it. Defence taken to the application was that it was barred by limitation and the dates of hearing given in the application did not correspond with the actual dates of hearing fixed in the suit by the trial Court. The trial Court without raising issues on controversial points and giving opportunity for substantiating them held that the application was barred by limitation and consequently, dismissed it on 7‑6‑1980. Thereafter, defendants Nos. 1 and 2 preferred an appeal. It came to be heard by an Additional District Judge who agreed with the trial Court; maintained its order and dismissed the appeal on 27‑5‑1981. Thus, this Court is invited to revise the orders passed in the Courts below by which the ex parte decree made against the defendants was not set aside on account of bar of limitation. 3.On behalf of the defendants/petitioners, their learned counsel raised five contentions:‑‑‑ (i) Under Order 9, Rule 6(1)(a), C.P.C. the trial Court, without taking evidence, could not have passed a decree on the adjourned date of hearing in the suit and as such, decree passed in violation of the Rule shall be held void; (ii) Even, if it be assumed for sake for argument that the Court had jurisdiction to make such a decree, the discretion vesting in it by Rule was not correctly exercised, for passing of an ex parte decree without taking any proof in support of it; (iii) Even in the event of ex parte proceeding and consequent decree there must be some material before the Court to satisfy its judicial conscience that the case set up was true and not false. The judgment given by the Court without evidence in its support is not a valid dispensation: (iv) Application under Order 9, Rule 13, C.P.C. was in the' nature of original proceeding, and without settlement of issues covering controversial points between the parties and taking evidence from them in support of their varying versions could not have been decided. The Court without adopting such a procedure acted with material illegality in exercise of its jurisdiction; (v) Period of limitation for setting aside of the ex parte decree, in the existing circumstances, was governed by residuary Article 181 of Limitation Act, 1908 and not Article 164, as was held in the Courts below.

4. In support of his above contention, learned counsel referred the Court to the cases in Sh. Inayat Ullah v. Mian Abbas Ahmad Khan and another (1970 SCMR 130); Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89); Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21); Kamran Co. and others v. Modern Motors and another (PLD 1990 SC 713); Lahore Municipal Corporation v. Muhammad Sarwar (1990 CLC 379 (Lah.) Sain Akhtar v. Muhammad Yousaf and 2 others (1990 MLD 2135).

5. Conversely, the learned counsel for the legal representatives of the original plaintiff, since deceased, defended the impugned orders and submitted that not only that the application for setting aside of the ex parte decree was hopelessly barred by limitation but there was no sufficient cause shown for its condonation and the facts stated to support setting aside of the ex parte decree were all untrue. In support of the plea of bar of limitation learned counsel referred to rulings of this Court in Col. Atta‑ur‑Rehman v. Ahmad Yar Khan and 3 others (PLD 1980 Lah. 181); Gulzar v. Hata etc. (1988 MLD.1518); and Messrs Lahore Art Press through its Proprietor Muhammad Mohsin and another v. National Bank of Pakistan (PLD 1990 Lah. 300) and as for power to pass ex parte decree, without recording evidence under Order 9, Rule 6(1)(a), C.P.C. relied upon the case of Sikandar Khan alias Makhu v. Barkhurdar and 3 others (1981 CLC (Lah.) 183).

6. Upon hearing the learned counsel for the parties at quite some length, examination of original records and the case‑law referred to, impugned decisions of the Courts below are not found sustainable. As observed in the opening portion of the judgment, plaintiff claimed ownership of the plot in question and confirmation of his possession on it and, in the alternative, acquisition of prescriptive title to it, but neither annexed any proof of his ownership nor possession to the plaint. He also gave no evidence in support of his above two‑fold claims. On the contrary, defendants Nos.l and 2 pleaded their ownership of the plot and actual possession on it. Apart from an important question, whether Order 9, Rule 6 (1)(a) applied to the first or adjourned hearing of the suit, more important question would be whether in the prevailing circumstances, trial Court could have proceeded to decree the suit ex parte without taking an iota of proof from the plaintiff to support his ownership of the plot and adverse possession on it, if any. Rule 6 imported a discretion in this behalf and was not compulsive, meaning thereby that it was not obligatory for the Court to decree the suit without recording evidence, in all and sundry cases regardless of their merits. Discretion vesting in‑the Court, like all public powers, must be exercised reasonably, fairly and justly. From the nature of the power vested in and to be exercised by the Court it is clear that it is obliged to examine carefully each and every case placed before it to find, whether evidence is or is not to be taken for decreeing the sudden absence of the defaulting defendant. Rule of caution and propriety requires taking of some proof from the plaintiff for satisfying the Court that the case set up before it was true. Wholly uncorroborated averments in the plaint may not to have been enough for the purpose. Similarly, application for setting aside of the ex parte decree which involved division on disputed questions of facts and law ought not have been disposed of summarily without proper inquiry by the Court. Defendants applicants were entitled to an opportunity to substantiate the averments made by them in the application for setting aside of ex parte decree and also `he opposite party to a like chance for rebutting the material brought against them. The course adopted by the Court for deciding of the application on hearing arguments only in my opinion, was not proper one. So, there were two material defects of procedure; first existed in the ex parte decree itself and second related to the summary manner of disposal of the application for setting aside of the ex parte decree. Both the defects were of a of a vital nature and of such a Magnitude that those could not be lightly ignored or bypassed. Plaintiff got the ex parte decree without any proof and the defendants were denied the right to have it set aside without an opportunity for substantiating their allegations by leading evidence. In order to avoid further prolongation of litigation and to promote the cause of decision on its merits, instead of remitting the application for setting aside of the ex parte decree for its decision afresh in accordance with law and the observations made above, I have decided to set aside the ex parte decree itself, which was passed without taking evidence in support of it.

7. In view of what has gone before, civil revision is allowed, ex parte decree, dated 10‑2‑1980 passed by the trial Court alongwith its subsequent order, dated 7‑6‑1980 and that of the lower appellate Court dated 27‑5‑1981 are all set aside. Net result of this would be that the suit shall be retried on merits in accordance with law in presence of the parties by allowing them a reasonable opportunity of defence. In view of the nature of ex parte decree, its partial setting aside could not suffice. Therefore, it is set aside in its entirety so that the merits of the case could be gone into afresh. As for costs in this Court, there shall be no order.

8. The case shall now go back to learned Senior Civil Judge, Sialkot. Parties shall appear in his Court on 30‑10‑1991. Learned Senior Civil Judge shall have the option either to keep the suit for trial on his own file or entrust it to any other Civil Judge in the District for its trial. There shall be an attempt for an expeditious decision of the suit. H.B.T./N‑36/L Case remanded.