2005 PLP 1244 (YLR)

CH. IJAZ AHMAD, J.

The brief facts out of which the present appeal arises are that respondent No.1 filed a suit for recovery of Rs.19,47,600 under Order XXXVII, rule 2 of C.P.C. against the appellant and respondent No.2 on 26-1-2002 in the Court of Additional District Judge, Lahore. the appellant filed application to appear and defend the suit before the trial Court. The trial Court granted leave to appear and defend the suit vide order dated 1-6-2002 with the condition to furnish security without specifying time. The appellant did not furnish security in terms of order dated 1-6-2002. The trial Court passed the ex parte order against the appellant on 19-6-2002. The appellant submitted an application before the trial Court for setting aside the same on 8-7-2002. Respondent No.1 filed reply of the application on 15-7-2002. The trial Court did not decide the application of the appellant. Respondent No.2 filed application under Order VII, rule 11, C.P.C. and respondent No.1 filed application before the trial Court on 15-7-2002 with the prayer that defence of the appellant be closed. The aforesaid applications were decided by the trial Court vide order dated 25-2-2004 wherein the trial Court allowed the appellant to furnish security on or before 20-3-2004. The appellant failed to obey the order dated 25-2-2004. Therefore, trial Court had withdrawn the conditional order passed in favour of the appellant dated 1-6-2002 and fixed the case for further proceedings for 8-4-2004. On 8-4-2004 the case was adjourned for 22-4-2004. The trial Court recorded the better statement of respondent No.1 plaintiff and passed the impugned judgment and decree dated 22-4-2004 against the appellant. Hence the present appeal.

2. Learned counsel of the appellant submits that the trial Court erred in law not to decide the application of the appellant for setting aside ex parte order dated 19-6-2002. Therefore, impugned judgment and decree is not sustainable in the eye of law. He further submits that appellant had engaged Mr. Muhammad Muzammal Khan Chaudhry, Advocate who was elevated as Judge of this Court on 3-9-2003. This fact was noted by the trial Court in order dated 15-9-2003. Therefore, it was the duty and obligation of the trial Court to decide the case after notice to the appellant but this procedure was not adopted by the trial Court.

3. Learned counsel of respondent No.1 submits that ex parte order dated 19-6-2002 is not in consonance with Order IX, rule 11, C.P.C. therefore, trial Court was justified not to decide the application of the appellant for setting aside order dated 19-6-2002. He further submits that appellant was allowed to participate in the proceedings as is evident from the order sheet and the trial Court in the interest of justice and fair play allowed the appellant to furnish security in terms of order dated 1-6-2002 vide order dated 25-2-2004 till 20-3-2004. The appellant did not avail the said opportunity. Therefore, trial Court was justified to pass the decree against the appellant. He further submits that counsel of the appellant failed to point out any infirmity or illegality in the impugned judgment and decree of the trial Court. As such the appeal is liable to be dismissed.

4. Learned counsel of respondent No.2 submits that respondent No.2 has been impleaded by respondent No.1 in his suit wrongly as well as by the appellant in the appeal as respondent No.2 who did not receive any cheque and is not a party in the cheques in question. Therefore, respondent No.2 is not proper and necessary party and his name be deleted from the suit as well as from this appeal.

5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is admitted fact that appellant has filed an application before the trial Court for setting aside the ex parte order dated 19-6-2002. It is admitted by the parties that the application for setting aside order dated 19-6-2002 filed by the appellant was not decided by the trail Court which is in consonance with the order sheet as perused by us. It is also admitted fact that it was in the knowledge of the trial Court that counsel of the appellant has been elevated to the Bench as is evident from order dated 15-9-2003. Therefore, it was the duty and obligation of the trial Court to decide the applications of the respondents after notice to the appellant but this procedure was not adopted by the trial Court. It is settled principle of law that nobody should be penalized by the act of the Court as per principle laid down in Mian Irshad Ali v. Government of Pakistan PLD 1975 Lahore

7. It was also the duty and obligation of the trial Court to decide the application of the appellant for setting aside order dated 19-6-2002 either independently or along with the other applications filed by respondents Nos.1 to

2. Therefore, this fact brings the case in the area that the trial Court has decided the controversy between the parties without judicial application of mind which is not in consonance with the law laid donw by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 and Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 1970 SC

158. After addition of section 24-A in the General Clauses Act it is even the duty and obligation of public functionaries to decide the controversy between the parties after application of mind which is now condition precedent as the law laid down by the Honourable Supreme Court in the following judgments:-- A Messrs Airport Support Service v. The Airport Manager 1998 SCMR 2268. A Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419. In view of what has been discussed above, this appeal is accepted, impugned judgment and decree dated 22-4-2004 is set aside and the matter is remanded to the trial Court. The parties are directed to appear before the trial Court on 24-3-2005 who is directed to decide the application of the appellant for setting aside order dated 19-6-2002 in the first instance and shall decide the same within two months and then proceed in the matter in accordance with law. The parties and their counsel are directed to cooperate with the trial Court so that the matter may be concluded within the prescribed period. In case any of the party/its counsel fails to cooperate with the trial Court then the trial Court is directed to invoke the penal provisions against the said party. M.B.A./A-391/L Appeal accepted.