' KHALIL-UR-REHMAN RAMDAY, J.---- This appeal through leave of this Court is directed against a judgment of the Peshawar High Court dated 22-1-1999 passed in C.R. No,466 of 1999.
2. One Dil Baz Khan came to be accused of the commission of a murder. His availability could not be secured despite issuance of a proclamation under section 87 of the Cr.P.C. As a result whereof his property was attached under section 88 of the said Code which property in due course came to be at the disposal of the Provincial Government liable to be sold by the said Government. It was in these circumstances that the suit property was put to auction to be held by the Assistant Commissioner. Shabbir Hussain respondent claimed to have offered the highest bid for the said property and even deposited one fourth of the said amount of bid but the Assistant Commissioner refused to confirm' the said sale in favour of the said Shabbir Hussain, inter alia, on the ground that even the highest bid by the respondent was not reasonable and adequate and he consequently ordered re-auction of the said property.
3. Shabbir Hussain respondent then filed a suit in the Court of the learned Senior Civil Judge at Kohat seeking a declaration that on account of the bid made by him on 30-8-1986, he had become the owner of the suit property and consequently, seeking a direction to the Provincial Government and the Assistant Commissioner of Hungo not to re-auction the said property. On being summoned, the defendants in the said suit Le., the appellants before us filed a written statement on 12-10-1986 but on account of the absence of the defendants/their representatives before the trial Court on 29-7-1987, the said suit was decreed ex parte. On the same day i,e, 29-7- 1987, an application was submitted on behalf of the defendants at about 11.00 a.m. For setting aside of the said ex parte decree for the reasons stated therein but this application was also 'dismissed in default on 14-11-1987 when none had appeared on behalf of the applicants to pursue the same. A further application was then submitted by the present appellants on 3-12-1987 praying for restoration of the above mentioned application dismissed in default on 14-11-1987 and also praying for setting aside of the ex parte decree mentioned above. During the pendency of this application, another application was submitted on 13-4-1988 praying for permission to amend the application dated 3-12-1987 to enable the present appellants to confine their prayer in the application dated 3-12-1987 only to the restoration of the application dated 29-7-1987. A learned Civil Judge at Kohat, through his order dated 16-1-1989 dismissed the said application which led the present appellants to the learned District Judge with an Appeal bearing No,133/13 of 1989 which was allowed through a judgment dated 30-5-1994 whereby the application for setting aside the ex parte decree was allowed on payment of Rs,5,000 as costs which costs were directed to be paid by Taj Muhammad A.D.K. Who stood deputed by the defendants to pursue the said case and through which judgment, a desire had been expressed by the learned District Judge of Kohat to initiate departmental proceedings against the said Taj Muhammad on account of his misconduct in the matter of pursuing of the suit in question. This appellate judgment was impugned before the Peshawar High Court through C.R. No,466 of 1994 which was allowed through a judgment dated 22-1-1989 whereby the above mentioned appellate judgment of the learned District Judge was set aside and whereby the observations made by the learned District Judge about Taj Muhammad A.D.K. Were also expunged. This revisional judgment of the learned High Court was questioned before this Court through C.P. No,199-P of 2000 which petition was allowed on 8-8-2000.
4. Hence this appeal.
5. The learned counsel for the appellants argued:--
(a) that the plaint filed by the present respondent did not disclose a cause of action i,e, did not disclose any right which could have got vested in the highest bidder to claim ownership of the property especially when it stood clearly stipulated that any bid could be refused without even assigning a reason and the said plaint was, therefore, deserved to be rejected under Order VII Rule 11 of the C.P.C;
(b) that since the defendants had appeared before the trial Court and had even filed their written statement, therefore, no ex parte decree could be passed against the defendants in the absence of any evidence led by the plaintiff which could justify the passing of such a decree in view of the law laid down by this Court in Kamran Co. And others versus Messrs Modern Motors and another (PLD 1990 SC 713);
(c) that in the circumstances, the act of the trial Court in passing an ex parte decree without examining the question whether the plaint disclosed a cause of action and whether a decree could validly be passed in pursuance of the plaint filed by the plaintiff, could not be sustained;
(d) that the discretion exercised by the learned District Judge in granting relief to the appellants was not an illegal exercise of the jurisdiction vesting in the said appellate Court and, therefore, not liable to be set aside under section 115 of the C.P.C;
(e) that a sufficient cause had been shown by the defendants for setting aside of the ex parte decree and thus justice demanded a decision of the lis on its merits; and finally
(f) that a collusive act of a representative of the Government could not be permitted to cause losses to public property and public interest and it was always the obligation of the Courts of law to protect public interest and public property and that in the -present case, the learned High Court had omitted to consider the said aspect of the matter.
' Reliance was placed by the learned counsel for the appellants in the said connection on the following judgments:--
(i) Irtiqa Rasool Hashmi v. Water and Power Development Authority and another (1980 SCMR 722);
(ii) Messrs Lahore Art Press through its Proprietor, Muhammad Mohsin and another v. National Bank of Pakistan, Anarkali Branch, Lahore (PLD 1990 Lahore 300),
(iii) Kamran Co. And others v. Messrs Modern Motors and another (PLD 1990 SC 713);
(iv) Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365);
(v) Water and Power Development Authority v. Zahoor. Ahmad (1994 SCMR 960);
(vi) Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others (1995 SCMR 1655);
(vii) Syeda Tahira Begum and another v. Syed Akram Ali and another (2003 SCMR 29); (viii)Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83);
(ix) Riaz Hussain and others v. Muhammad Akbar and others (2003 SCMR 181);
(x) Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR '1121-)
(xi) Jameela Pir Bukhsh and others v. Appellate Authority and others (2003 SCMR 1524), and
(xii) Nasir Hamid Qureshi v. Mst. Abbasi Begum and others (2003 SCMR 1553).
6. When confronted with the law declared by this Court through the above noticed judgment in Kamran Company's case, the learned counsel for the respondent could not defend the impugned judgment of B the learned High Court and conceded that the ex parte decree dated 29-7-1987 be set aside and the matter be remanded back to the trial Court for a decision on the merits of the suit, in accordance with law.
7. Following the procedure adopted by this Court in Province of Punjab through Secretary Education and another v. Mufti Abdul Ghani PLD 1985 SC 1, we had a mind to consider and decide the question whether the plaint filed by the present respondent was liable to be rejected under Order VII, Rule 11 of the C.P.0 for which purpose we had even issued notice to the respondent but in view of the respondent's offer not to defend the ex parte decree in question and his request to send the case back to the trial Court for a decision on merits, we have considered it advisable to exercise restraint and to leave the said issue to be decided by the learned trial Judge in due course.
8. In view of the statement of the learned counsel for the respondent and also in view of the merits of the case, Civil Appeal No,906 of 2000 is allowed as a result whereof the impugned judgment of the Peshawar High Court dated 22-11-1999 passed in Civil Revision No,466 of 1994 is set aside. As a further consequence thereof, the ex parte decree passed by the learned trial Judge on 29-7-1987 is set aside by allowing the applications filed in the said connection and the case is remanded back to the trial Court for decision of the' same in accordance with law from the stage of the filing of the written statement. The question of liability of the plaint to be rejected under Order VII, Rule 11 of the C.P.0 would also be raised and decided by the learned trial Judge.
9. 'There shall, however, be no order as to costs.
10. But before parting with this judgment, we would like to add a word of caution for the learned Courts in the matter of passing ex parte decrees as also in the matter of dealing with public interest and public property.
11. The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the learned Judicial Officers should not adopt the said course of action with their eyes completely shut to,the factual and legal aspect involved in the matter e.g. If a suit is filed Reeking a decree to export Heroin from Pakistan and supposing none comes forward, for whatever reasons, to defend the said suit, then could it be legal or permissible for a Court to pass a decree granting a relief which was absolutely illegal and unlawful?
12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Governmental agency.
13. Send a copy of this judgment to the learned District Judge at Kohat for onward transmission to the learned trial Judge for his information and guidance.