1. ' This revision petition, under section 115, C.P.C. Is directed against the judgment and decree dated 8-12-1996 passed by the learned Additional District Judge, Kasur, whereby the appeal of petitioners and pro forma respondents Nos.6 and 7 against the judgment and decree dated 23-7-1995 of the Civil Judge, Chunian decreeing the suit of respondents Nos.1 to 5/plaintiffs, under Order X, rule 4, C.P.C., due to the absence of the petitioners and respondents Nos.6 and 7/defendants, at the time when their better statement was directed to be recorded, was dismissed leaving the parties to bear their own costs.
2. The relevant facts are that deceased plaintiff Muhammad Shafi, the predecessorin-interest of respondents Nos.1 to 5, instituted a suit for declaration and permanent injunction on 14-3-1995, in the Civil Court at Chunian, District Kasur, against the petitioners and pro forma respondents Nos.6 and 7/defendants Nos.4 and 5. The latter two were shown as minors and were impleaded through their mother Mst. Salma Bibi, who was herself a party as defendant No,3 (now petitioner No,3) and in para.1 of the plaint also, it was explained that defendants Nos.4 and 5 were minors, that they were under the custody and supervision of their mother Mst. Salma Bibi and they were, therefore, being sued against, through their real mother as their guardian.
2. ' It was alleged in the plaint that out of his ownership in Mauza Talwandi, he (plaintiff) sold land measuring 8 Marlas to the defendants/petitioners Nos.1 and 2 and Mushtaq Ahmad predecessor- in-interest of petitioner No,3 and pro forma respondents Nos.6 and 7, vide registered sale-deed dated 14-5-1980 but the sale-deed was registered for 18 Marlas of the plaintiff's land and the additional 10 Marlas were entered in the sale-deed due to the collusion of the defendants Nos.1 and 2 and one Muhammad Hayat, with the staff of Sub-Registrar and the petition writer, as a result of fraud, forgery and conspiracy. The plaintiff further alleged that he came to know of the fraud in September, 1994, when the defendants instituted a suit for possession against the son of the plaintiff. The plaintiff, therefore asked for a declaration that the registered sale-deed dated 14-5- 1980 detailed in the plaint and the consequential Revenue Mutation No, 1533 dated 19-7-1980, being based on fraud, forgery, conspiracy and without consideration, were ineffective as against the rights of the plaintiff and were liable to be cancelled and it was further prayed that the defendants be permanently restrained from asserting their ownership over the suit-land on the basis of the aforesaid documents and from interfering in the plaintiff's possession.
3. ' The defendants contested the suit through a written statement.
4. ' The learned trial Court on 25-6-1995, at the time of the decision on stay application, - fixed the hearing for 2-7-1995 for recording better statements of parties. On 2-7-1995 the parties were not personally present and the hearing was postponed to 9-7-1995. On this date the plaintiff was present with counsel. Defendants' counsel was also present but the defendants were not personally present and for this reason the hearing was adjourned to 16-7-1995 and on this date the plaintiff was personally present, the defendants were absent and request for adjournment was made by the defendants' counsel. The learned trial Court adjourned the hearing as a last chance, to 23-7-1995 with costs of Rs,50. On 23-7-1995 counsel for the parties were present. Plaintiff was personally present and due to the absence of the defendants, the right of the defendants to produce defence was closed and due to their absence for recording their better statements, the plaintiff's suit was decreed as prayed for.
5. ' It may be mentioned here that the result of the decree is that sale-deed in dispute and the consequential revenue mutation, in their entirety, .Stand cancelled and nullified, although the plaintiff challenged their validity and correctness only to the extent of additional area measuring 10 Marlas and had accepted their validity and correctness to the extent of 8 Marlas.
6. ' The appeal of petitioners and pro forma respondents Nos.6 and 7 (minors), as mentioned above, was dismissed by the learned Additional District Judge, Kasur on 8-12-1996. The learned Appellate Court held that a fair opportunity was given to the appellants/petitioners to appear for recording their better statements and their absence appeared to be intentional and the decree passed by the learned trial Court did not deserve any interference by the Appellate Court.
7. ' I have heard the learned counsel for the parties and have also seen the record.
8. ' It is submitted by the learned counsel for the petitioners that the law favours decision on merits, that the absence of defendants on 23-7-1995 was sufficiently explained in the appeal, it was explained that they were absent due to sudden death of their close relative namely Sultan son of Qadir Bakhsh and also because the defendant/petitioner Muhammad Iqbal, suddenly became sick on 22-7-1995 and death register entry of death of Sultan son of Qadir Bakhsh and the medical certificate of the illness of Muhammad Iqbal were attached to the grounds of appeal but the learned Appellate Court did not consider this aspect of the case at all and dismissed the appeal without considering of the grounds raised before it, that the judgments and decrees passed by the Courts below are mechanical in nature, they were passed without application of mind, the suit was hopelessly barred by time, the sale-deed executed and registered on 14-5-1980 and the Revenue Mutation No,1533 attested on 19-7-1980 could not have been cancelled and set at naught in a suit instituted, almost 15 years thereafter, on 14-3-1995, by the vendor himself, particularly when the vendor/plaintiff admitted the execution and registration of the sale-deed and such a long delay was not explained by the plaintiff, that under section 3 of the Limitation Act, it was the duty of the Court itself to consider this issue even if not raised by the defendants, that under Order XXXII, C.P.C.
9. The Court has to look after the interest of the minors as guardian and under rule 3 of the said Order, the Court ought to have appointed their guardian, on its own, at plaintiff's expense, the plaintiff did not bother to move a formal application for the appointment of guardian ad litem of the minor defendants, that the case was fixed for 2-7-1995, 9-7-1995, 16-7-1995 and lastly for 23-7-1995 for recording the better statements of the parties and the statement of the plaintiff was to be recorded prior to the recording of the statement of the defendants, whereas, no such statement was recorded and the defendants could not have been penalized for their absence on the relevant date i.e, 23-7-1995 because the plaintiff by then, had not fulfilled his obligation of getting his better statement recorded. In the last but not in the least, it has been argued that under rule 4 of Order X, C.P.C., the personal appearance of a party becomes mandatory and the Court becomes empowered to pronounce judgment against the defaulting party due to its absence, only if the counsel for the party refuses or is unable to answer any material question relating to the suit, which the Court is of opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person, whereas in the present case there is no finding of the learned trial Court that the petitioners/defendants' counsel is unable to answer or has refused to answer any material question relating to the suit especially when defendants' counsel was present throughout including the last date of hearing and the condition precedent for a penal action of pronouncement of judgment under rule 4(2) of Order X, C.P.C., of the inability of the counsel to answer a question, having not been fulfilled, the aforesaid penal provision is not attracted to the facts of the present case. It has further been argued that learned trial Court did not frame any issue and did not record any evidence and a decree purporting to have been passed under rule 4(2) of Order X, C.P.C. Without recording any evidence, cannot be considered a judgment under rule 4(2) of Order XX, C.P.C. As it would lack ingredients of judgment within the meaning of rule 4(2) of Order XX, C.P.C. Reliance in this regard is placed on Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan 2000 UC 237. The learned counsel representing pro forma respondents Nos.6 and 7 has adopted the arguments of the learned counsel for the petitioners.
10. ' The learned counsel. Representing respondents Nos.1 to 5, while opposing this petition has submitted that the objection that the minors were not properly sued through a proper guardian i.e, their real mother, is not valid, as the appeal was also< filed by them through their mother, without any objection from any side, that the issues of limitation and of inapplicability of rule 4(2) of Order X, C.P.C. Are being raised for the first time in this Court and. That the judgments and decrees passed by the Courts below do not suffer from any illegality or irregularity to warrant interference by this Court in the exercise of its revisional jurisdiction.
11. ' Avoiding repetition, it is held that the learned trial Court acted illegally id pronouncing the judgment against the defendants under rule 4(2) of Order X, C.P.C., merely because of the absence of the defendants on a date specified for recording better statement of both the parties and not for recording better statement of the defendants alone. The condition precedent for pronouncing the judgment forthwith under the aforesaid rule 4(2) against the defaulting party is the fulfilment of conditions laid down in rule 4(1), which lays down that where any party is represented by Lawyer/Advocate and such Lawyer/Advocate refuses or is unable to answer any material question relating to the suit, which the Court is of the opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the Snit to a future day and direct that such party shall appear in person on such day. In the present case the counsel/Advocate of the defendants was present throughout, including on the last date of hearing i.e, 23-7-1995, when the judgment was pronounced and the plaintiff's suit was decreed but the learned trial Court did not pose any query/question to the learned counsel and there is no finding by the learned trial Court that the defendants' counsel had refused or, was unable to answer any material question relating to the suit, as referred above. In the absence of such a finding, the learned trial Court could not have pronounced the judgment. The record shows that no material' question was 'put to the defendants' counsel. In Sardar All Khan Syal V. District Judge/Election Tribunal ZiIla Council, Jhang and 2 others PLD 1982 Lahore 63, it was held that an order/judgment under the aforesaid provision could be passed only if the Courts find that the material relating to The suit that has to be answered by such party or his pleader/advocate. The above provision was also considered in Sadeshwar Narain v. Qadir Bakhsh and others AIR 1918 Oudh 429, a Division. Bench of Oudh High Court held that before a legal order could be passed against a party directing him to appear under the provisions of rule 4 of Order X, C.P.C., it is necessary that the Court should find, in the first place, that there are material questions relating to the suit, which must be answered either by such party or by his pleader, and when such party has a pleader, it is only when the pleader is unable or refuses to answer those questions that the Court may direct the party to appear in person to answer. Similarly, in Sodhi Sadhu Singh & Sons and others v. Dal Chand Tulsi Ram and another AIR 1933 Lahore 922, a Division Bench of this Court held that even through it was incumbent on the Judge to put such questions before taking action under Order X, rule 4(2), C.P.C., still the action was proper because despite several opportunities; neither the party appeared nor its pleader or agent undertook to answer all the questions. In Sardar Ahmad Sial's case (supra), the Division Bench of this Court further held that the Court is bound to hold that the party failed to appear without lawful excuse, whereas in the present case no such finding has been given by the learned trial Court. Furthermore, the better statement of the defendants was to be recorded, in routine, only after recording the better statement of the plaintiff because both the parties had been erected to appear personally but the plaintiff's statement was not recorded although he was present alongwith his counsel.
12. In view of the above mentioned, the revision petition is accepted, the judgments and decrees passed by the Courts below are set aside, the order of closure of right to produce defence is also set aside and the case is remanded back to the learned trial Court with an observation that the plaintiff's suit shall be deemed to be pending and shall proceed further, from the stage when it was decided by the learned trial Court, for fresh decision, on merits, in accordance with law. There is, however, no order as to the costs.