Ex parte proceedings

2019 CLD 892 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

S. 33AppealFailure to appear before Bench without sufficient causeEx parte proceedingsAppellants had availed successive adjournments on one pretext or the other, spanning over three years

Bench observed that appellants and respondents had a right to be heard and represented by a counsel but at the same time it could not be permitted to defeat the cause of justice by indefinite procrastination by either party

Appellants and their counsel could not be allowed to regulate the proceedings of Bench by their own choice and whims

Rights of each of the parties were equally protected under the law and none of the parties could be permitted to stifle and prolong the proceedings without any sufficient and just cause

Ample opportunities were provided to the appellant to ensure their representation and argue the appeal, however, they failed to join the proceedings

Appellants were proceeded against ex parte and appeal was dismissed.

2017 CLC 1508 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. IX, R.6Ex parte proceedingsCourt, duty of

When ex parte proceedings are being carried on, the Court has an additional burden and duty cast upon it to ensure that ends of justice are met and interest of the party who has not been able to defend its case for any reason whatsoever, should be protected and must be dealt in accordance with law.

2017 CLCN 129 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XLIII, R. 1, O. IX, Rr. 8, 9 & O. XVII, R. 3Suit dismissed for non-prosecutionApplication for restoration of suitEx parte proceedingsProcedureSuit was fixed for evidence of defendant but plaintiff did not appear and suit was dismissed for non-prosecutionValidityAppeal was competent under O. XLIII, R. 1(c), C.P.C. against an order passed under O. IX, R. 9, C.P.C.

Previous default, if any, was not to be taken into consideration while deciding an application under O. IX, R. 9, C.P.C.

Present suit was not to be dismissed for non-prosecution but proper course was to proceed the matter under O. XVII, R. 3, C.P.C.

Impugned order passed by the Trial Court was without jurisdiction and nullity in law

Suit could have been decided on merits after recording evidence of defendant

If suit was not fixed for hearing but was fixed only for hearing of some interlocutory application or for any other miscellaneous proceedings then Court had no jurisdiction to dismiss the same for non-prosecution

No ex parte order should be passed in early hour of the day but matter should be kept aside and again be called in second part of the day and ex parte order could be passed at the end of the day

Court was to note the exact time of passing ex-pate order in the diary/order sheet

Impugned order was set aside and Trial Court was directed to decide the matter within two months

Appeal was allowed in circumstances.

2016 YLRN 85 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XXXVII, R. 4Suit for recovery of amountEx parte proceedingsSetting aside of ex parte judgment and decreeSpecial circumstances for non-appearance, existence ofDeterminationWithdrawal of power of attorney by counselDuty of court

Plaintiff filed suit for recovery of amount on basis of dishonoured cheque and FIR was also got lodged against defendant for the same

Defendant, while being in jail, appeared in suit through his counsel

Said counsel filed application for withdrawal of his power of attorney, on which Trial Court directed him to furnish certificate in writing to the effect that he had duly intimated defendant about said application for withdrawal

No one, later on, appeared on behalf of defendant, and Trial Court finally decreed the suit ex parte

Defendant filed application under O. XXXVII, R. 4, C.P.C. seeking setting aside of ex parte judgment and decree, which Trial Court dismissed

Validity

Trial Court had already allowed application moved by defendant for his exemption from appearance

Defendant need not to appear in person on each and every date, especially, when he had been represented by his duly constituted attorney or advocate

However, as defendant was confined in jail and his counsel having disassociated himself from proceedings and sought to withdraw his power of attorney, Trial Court was supposed to go to an extra mile and proceed cautiously

Advocate of defendant had not furnished certificate in writing to confirm that he had duly informed defendant about his intention not to represent him in future

No justification existed to initiate ex parte proceedings

Trial Court, having already heard arguments on application for leave to defend, had resorted to ex parte proceedings, which was glaring material irregularity

Trial Court, instead of retracing its steps, had persisted in its illegal orders by dismissing application filed by defendant under O. XXXVII, R. 4, C.P.C.

Defendant had given adequate reasons for his absence in said application

Plaintiff had managed first to commit defendant to prison by lodging FIR under S.489-F, P.P.C., and then maneouvered impugned ex parte judgment and decree

Impugned order was not speaking order, as no valid and cogent reasons had been given for the same

Defendant's application, in circumstances, deserved to be allowed

Trial Court had committed material irregularity in trial of suit, which had vitiated its proceedings, warranting interference under S.115, C.P.C.

Ex parte proceedings being without jurisdiction and any lawful basis, High Court, set aside impugned order of dismissal, remanded case to Trial Court for decision afresh taking up proceedings from date of application filed by defendant's advocate for withdrawal of his power of attorney

Revision petition was allowed in circumstances.

2016 CLC 1922 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. VI, Rr.14 & 15Pleadings, non-signing ofEx parte proceedings

Defendants failed to sign written statement and verification thereunder, therefore, Single Judge of High Court directed to proceed ex-parte against defendants

Plea raised by defendants was that it was merely an irregularity which was curable

Validity

Omission to or mistake to sign pleadings (plaint or written statement) was merely an irregularity and could be cured/rectified subsequently at any stage

Division Bench of High Court directed defendants to sign and verify written statement already on record and set aside the order passed by Single Judge

Intra-court appeal was allowed in circumstances.

2015 SCMR 731 SUPREME-COURT Judicial Precedent

S. 491Guardians and Wards Act (VII of 1890), Ss. 7 & 10Civil Procedure Code (V of 1908), O. IX, R. 13Constitution of Pakistan, Art. 187(1)Custody of minorEx parte proceedingsGuardianship certificate

Power of Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in a case involving custody of minor

Scope

Paternal grandfather of the minor obtained guardianship certificate through ex parte proceedings without disclosing to the court that mother of minor was still alive

Mother of minor, who was unaware of the guardianship certificate, filed a habeas corpus petition before the High Court claiming custody of the minor

Habeas corpus petition was allowed by the High Court despite the existence of guardianship certificate in favour of paternal grandfather on the ground that said certificate had not been obtained in a bona fide manner and, thus, by ignoring the guardianship certificate the High Court ordered transfer of the custody of the minor from the paternal grandfather to the mother

Legality

Mother of minor had not filed any appeal against the order passed by the Guardian Judge nor had any application so far been filed by her before the Guardian Judge seeking recalling of the ex parte order and reconsideration of the matter on its merits

By way of order passed by the High Court a minor had been given in the custody of her real mother and even if there were some questions regarding proper exercise of jurisdiction by the High Court in the matter still the Supreme Court would not like the minor to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody

Under Art. 187(1) of the Constitution, the Supreme Court could issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it

Supreme Court by invoking its jurisdiction under Art. 187(1) of the Constitution in the present case set aside the order passed by the Guardian Judge, and cancelled the Guardianship certificate and directed the Guardian Judge to consider the application for guardianship certificate submitted by the paternal grandfather as a pending application, and to hear all the parties concerned, including the mother of the minor, and then decide the matter of custody afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties

Supreme Court further directed that during the interregnum the custody of the minor shall remain with the mother and the Guardian Judge shall attend to the request, if any, made regarding visitation rights

Petition was disposed of accordingly.

2014 YLR 1840 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.IX, R.11Ex parte proceedingsDuty of court

When a case is being decided ex parte, a duty is cast upon the Court to ensure that no injustice is done to such party due to his absence only.

2013 CLC 1473 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. IX, R. 6Ex parte proceedingsStatements of witnesses recorded ex parteEx parte proceedings were not got cancelled by defendant by making application to courtEffect

Such statements would remain unchallenged and unrebutted.

1981 PLC(CS) 907 LABOUR-APPELLATE-TRIBUNAL-SINDH Judicial Precedent

Domestic enquiry-Ex parte proceedings-Notice of enquiry received by accused after time fixed for enquiry-No evidence or proof to refute such fact and to prove that notice was served well in time-Ex parte inquiry, inquiry report and eventual order, in circumstances, held, invalid for want of proper defence opportunity-Management entitled to hold fresh enquiry-Back benefits subject to result of fresh enquiry

Industrial Relations Ordinance (XXIII of 1969), S. 25-A.

1981 PLC 512 LABOUR-APPELLATE-TRIBUNAL-SINDH Judicial Precedent

Domestic enquiry-Ex parse proceedings-Accused remaining absent due to refusal of Enquiry Officer to be represented by a person not a workman of establishment-Ex parse proceedings, in circumstance, held, not exceptionable and accused subsequently cannot complain for trot being given sufficient defence opportunity.

1981 PLC 145 LABOUR-APPELLATE-TRIBUNAL-SINDH Judicial Precedent

Domestic enquiry-Ex pane proceedings-Workman nominating a person not a workman to assist and represent him in enquiry-Enquiry Officer refusing such request-Worker not participating-Ex parte proceedings by Enquiry Officer, in circumstances, held, justified.

1969 PCRLJ 155 DHAKA-HIGH-COURT Judicial Precedent

Ex parte proceedings

S. 302-Sentence-Murder committed most brutally in heart of bazar in broad day-light Accused showing by conduct to be men of very desperate character Lesser sentence likely to act as encouragement rather than as a deterrent to potential assassins-Death sentences confirmed.

1969 PLD 65 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. IX, r. 6-Ex parte proceedings-Date of hearing falling on holiday-Parties as of right entitled to fresh notice of hearing-Ex parte order passed on next working day to prejudice of absentee party-Illegal.

1962 PLD 70 WEST-PAKISTAN-BOARD-OF-REVENUE Judicial Precedent

Ex parte proceedings -Lambardari case-Collector's order showing that parties were to be summoned for " next " hearing

Parties absent, not having been summoned-Collector deciding case in favour of one candidate without adverting even to material on record in favour of rival candidate- .Disapproved-Revenue Officers to take "special care" to determine that parties have been served.