1986 PLP 2527 (CLC)

This Revision Application has been preferred against the judgment and decree passed in Civil Appeal No. 407 of 1978 by the VIIith Additional District Judge at Karachi on 13th August, 1978 whereby he dismissed the said appeal and upheld the dismissal of the Suit No. 486 of 1978 by the XXVI Civil Judge IInd Class, Karachi. The facts briefly stated are that the applicant filed the abovementioned suit for recovery of Rs.2,200 as compensation and damages from the respondent /defendant on the plea that he handed over his clothes (suit) to the respondent for dry‑cleaning and darning under Receipt No. 7212, dated 1‑2‑1975 but the same was not delivered back to him on the due date on the plea that it was not traceable. According to the applicant he was put off on false promises all the time and ultimately finding that no result was forthcoming after serving legal notice, dated 18th January, 1978 the abovementioned case was filed for recovery of Rs.1,200 as cost of the suit and Rs.1,000 as damages for mental torture, pain, sufferings and loss of professional time.

2. The respondent /defendant after service of the summons made appearance and opportunity was given to him to file written statement. After a number of adjournments on 23‑11‑1978, which was the date fixed for filing of written statement as the respondent /defendant and his Advocate chose to remain absent, the trial Court in the circumstances "struck off" the defence and fixed the case on 31‑7‑1978. for judgment. On the date so fixed as the judgment was not ready the case was put off to 13‑8‑1978 on which date the suit was dismissed for the reason that the applicant/ plaintiff had not produced the receipt against which his clothes (suit) were delivered to the respondent for cleaning and darning, though in the plaint the plaintiff had relied upon the said document.. The learned trial Court observed that in the circumstances it could reasonably be said that the plaintiff had failed to prove his case in the absence of any documentary evidence.

3. Aggrieved by the dismissal of the suit, the appellant /plaintiff filed Civil Appeal No. 407 of 1978, which came up for hearing before the learned VIIIth Additional District Judge at Karachi. The learned lower Appellate Court agreed with the reasoning of the trial Court and the conclusion reached by it and holding that applicant had failed to produce the receipt on which he had based his claim dismissed the appeal by judgment passed on 17th October, 1985.

4. Against the above judgments and decrees passed by the two Courts below this application has been filed under section 115, C . P. C . by the applicant.

5. The learned Advocates who appeared for the parties raised various contentions as to the merits of the case and the scope of the jurisdiction of this Court while exercising jurisdiction in view of the provisions of section 115, C.P.C. The applicant's Advocate contended that as against the statement made in the plaint verified under oath and there being nothing in rebuttal his suit ought to have been decreed. Learned counsel for the applicant (plaintiff) also submitted that both the Courts committed serious irregularity in misreading the plaint inasmuch as the counter foil/receipt on which the reliance was placed by the plaintiff had been delivered to the respondent on the due date when his clothes were to be returned to him and the same was now in possession of the defendant and thus it could not have been produced by the plaintiff. It was argued that in the plaint the number and date of the counter‑foil/receipt had been expressly mentioned. According to the learned counsel the original as well as the counter‑foil both are in possession of the defendant who did not refute the facts stated in the plaint. He further submitted that in acknowledgment of the receipt of the counter‑foil (receipt) the defendant's representative had delivered a token to the plaintiff which is still in possession of the plaintiff. Learned counsel before me in the Court produced and showed the same during his arguments. On the other hand Mr. Munawar Abbas, the learned counsel for the respondent submitted that the two Courts below have given concurrent findings to the effect that the plaintiff had failed to prove his claim and that such findings cannot be interfered with in exercise of the revisional jurisdiction of this Court. A number of cases by both the counsel were cited but I find that it is a fit case where the suit should 'be remanded for reasons discussed below and while doing so I do not find it necessary to refer to the cases cited at the bar or to discuss the merits of the case.

6. A perusal of the record revealed that on service of summons upon him, the respondent /defendant appeared in the Court on 15th April, 1978 and made an application for adjournment, which was granted. The case was put up on 15th May, 1978 on which date as the respondent/ defendant remained absent and written statement was also not filed the case was put off to 30th May, 1978 for orders. On the last mentioned date as none appeared when the case was called out and the Presiding Officer was busy some other cases the case was adjourned for the same purpose to 23rd July, 1978. On the date so fixed the case was finally called out at 2.00 p.m. but as none was found present, the Court passed the following order:‑ "It is 2.00 p.m. Case is fixed fir filing of written statement by the defendant. Defendant and his Advocate called absent. No intimation received on his behalf. 1, therefore, struck off his defence. put up on 31‑7‑1978 for judgment." (The underlines are by me). Pursuant to this order the trial Court passed the judgment and decree on 13‑8‑1978 and the suit was dismissed. It appears to me that the learned trial Court had committed serious error of law in failure to appreciate that the dates fixed in the case as noted above were for filing of written statement and thus on the failure of the respondent /defendant to appear and file his written statement on 15th May, 1978 or 23rd July, 1978 the suit could not have been proceeded with and reserved for judgment for the reason that these dates fixed by the Court, were not dates of hearings. Both the counsel conceded that the procedure adopted by the trial Court was as contemplated by Order IX, Rule 6(1)(a), C.P.C. Reference to this provision would show that action could be taken and the suit could proceed ex parte but the essential condition to enable the trial Court to adopt this procedure was that the suit ought to have been called on the date fixed for hearing. The relevant provisions relied upon by the learned counsel for the sake of convenience is reproduced below:‑ "Order IX, Rule 6(1).‑‑ Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑‑(a) if it is proved that the summons was duly served the Court may proceed ex parte. and pass decree without recording evidence." (The underlined has been made by me) A reading of the provision of law under which the trial Court appears to have proceeded would show that resort to it could be taken only on the date when the suit is called on for hearing. As the dates (15th May, 1978 and 23rd July, 1978) fixed before the trial Court were for filing of written statement the same cannot be deemed to be dates fixed for hearing of the suit. Reference if needed be made to the law laid down in the case of Manager Jammu and Kashmir Estate Property v. Khuda Yar and another P L D 1975 S C 678 at page 699 wherein the Honourable Supreme Court cited with approval the case of Rahisr Bux and another v. Gul Muhammad and others P L D 1976 Lah.

746. In the last‑ mentioned case 30th September. 1963 was fixed for filing of the written statement by defendants but owing to a mistake on the part of the Reader the case was taken up on 26th July, 1963 and was dismissed for non‑appearance of the palintff. The learned High Court set aside the order of dismissal of the suit as it was not a date fixed for hearing of the suit but for filing of the written statement and as such the suit could not have dismissed for non‑appearance of the plaintiff.

7. Both the learned Courts below omitted to take into consideration the law referred to above. They failed to appreciate that the dates fixed for filing of written statement not being the dates fixed for hearing of the suit, the case ought not to have been closed and reserved for judgment without giving opportunity to the plaintiff /applicant oil being heard and produce evidence (if any) in support of his claim. In. the case reported as Altafur Rehman v. Bostan 1968 S C M R 13501 principle has been laid down that even concurrent findings of the Courts below which are based on no evidence and if found suffering from material irregularity, may be interfered with in exercise of revisional powers under section 115, C . P . C .

8. In the circumstances discussed above it is obvious that the trial Court, acted without jurisdiction in proceeding with the suit, closing the side of plaintiff on the date not fixed for hearing and reserving suit for announcement of the judgment. The procedure followed by the trial Court was not warranted by the law and suffered from serious illegality and material irregularity which prevented the plaintiff /applicant from opportunity to prove his case. This obviously resulted in miscarriage of justice. The learned lower Appellate Court also failed to take notice of this Illegality and its judgment, therefore, also cannot be sustained.

9. For the afore discussed reasons the judgments and decrees passed by the two Courts below suffering as they are with serious illegality and material irregularity resulting in miscarriage of justice are set aside. Consequently the suit is remanded to the District Judge, Karachi (South) with the direction that the suit shall be forwarded by him to the civil Court of competent jurisdiction for trial and disposal according to law. Since the matter is being remanded the trial Court shall proceed with the suit from the same stage as it was fixed on 23rd July, 1978 i.e. for filing of the written statement. The defendant/ respondent shall be at liberty to file its written statement within such time as the trial Court may grant after appearance of the parties taking into consideration the delay which has already taken place. In the circumstances of the case the parties are left to bear their own costs. H . B . T . Order accordingly.