' Mst. Anwar Sultana and others, respondents/plaintiffs filed a suit against the petitioners/defendants for the recovery of Rs,40,000 in the Court of Senior Civil Judge, Karak. The suit was contested by the defendants by filing written statement, however, during the course of proceedings the defendants absented from the Court, as a result of which they were proceeded ex parte and after recording ex parte evidence and hearing ex parte arguments, the learned trial Court passed an ex parte decree in favour of the respondents as against the defendants with special cost of Rs,2,000 as per section 35-A, C.P.C. Vide judgment and decree dated 12-4-2002.
Feeling aggrieved of the said judgment and decree, the defendants moved an application on 11-5- 2002 for setting aside the ex parte decree which was contested by the respondents by filing written reply. After hearing arguments of the learned counsel for the parties, the said application was allowed, the ex parte decree dated 12-4-2002 was set aside and the suit was restored to its, original number on payment of cost of Rs,2,000 to the judgment-debtors vide judgment/order dated 5-11-2002 and the case was fixed for recording the plaintiffs' evidence on 10-12-2002 on which date the learned counsel for the defendants requested for time to make payment of the amount of cost imposed upon them as he had failed to contact his client. Time was granted and the case was adjourned to 14-1-2003. On the said date, neither the defendants were in attendance nor they had paid the amount of cost, therefore, finding no other alternative, the learned trial Court granted a decree in favour of the plaintiffs as against the defendants vide judgment and decree, dated 14-1-2003. The defendants again moved an application on 8-2-2003 for setting aside, the said decree which was dismissed being not maintainable vide judgment/order, dated 20-3-2003.
Being dis-satisfied with the said judgment, the defendants filed Civil Appeal No,68/13 of 2003 in the Court of learned Additional District Judge-I, Karak. Which too was dismissed vide judgment/order dated 15-10-2003. Being not contented with the judgment/orders passed by the Courts below the petitioners have filed the revision petition in hand.
2. Mr. Ijaz Anwar, the learned counsel representing the petitioners, argued that the decree passed against the petitioners/defendants on 14-1-2003 was an ex parte decree, hence the application for its setting aside was maintainable.
3. It was also argued that the learned trial Court had the jurisdiction under section 149, C.P.C. To enhance the time for payment of costs but it failed to exercise jurisdiction in refusing to allow further time to the petitioners to deposit/pay the costs.
4. It was further argued that the appeal filed by the petitioners in the Court of learned Additional District Judge was found within time as the time spent in obtaining certified copies was to be excluded for the purposes of computing the period of limitation which was not done in the instant case.
5. Mst. Anwar Sultana respondent No,1 though was present in Court but showed her inability to engage a counsel due to poor financial condition and requested the Court to examine the record itself and decide the case on merits.
6. I have heard the learned counsel for the petitioners at length and gone through the record of the case.
7. Perusal of the judgment and decree passed by the learned Additional District Judge-I shows that the appeal filed by the petitioners was dismissed on the ground of being barred by time. Neither the merits of appeal were dilated upon nor the record of the case was properly perused. The admitted position in this case is that an ex parte decree was passed by the learned trial Court against the petitioners/defendants on 12-4-2002 and on their application the same was set aside on payment of Rs,2,000 vide judgment and decree, dated 5-11-2002 and case was fixed for recording the plaintiffs' evidence for 10-12-2002 on which date the learned counsel for the petitioners/ defendants requested for time to make payment of the amount of cost as he had not contacted his client. Final opportunity was granted to the defendants and the case was posted for the plaintiffs' evidence for 3-1-2003. This date i,e, 3-1-2003 was adjourned due to note of the Reader as the learned Presiding Officer of the trial Court was on leave on the said date. The case was, however, posted for 14-1-2003 on which date a decree was passed against the petitioners/defendants. Having come to know about the said decree, the petitioners/defendants filed an application for setting aside the same on 8.2-2003 but the application was dismissed vide judgment/order, dated 20-3-2003. The appeal before the learned Additional District Judge was filed on 3-5-2003. It is worth-mentioning that after the dismissal of application for setting aside the ex parte decree on 20-3-2003, the etitioners/defendants applied for the grant of certified copies on 21-3-2003 which were supplied to them on 4-4-2003 and the appeal, as mentioned above, was filed on 3-5-2003 which was quite within time. The learned Appellate Court has in fact erred in not computing the time spent by the petitioners for obtaining the certified copies of the impugned judgment/order passed by the learned trial Court. Had the said period been counted, the learned appellate Court would have definitely reached to the conclusion that the Appeal before it was within time.
8. Another important factor which has not been noticed by the learned Appellate Court is that 14-1- 2003 was not the "date of hearing" because the case had been adjourned from 10-12-2002 to 3-1- 2003 on which date the learned Presiding Officer was on leave and the Reader of the Court had fixed 14-1-2003 in the case. The question that arises here is as to whether the date adjourned on the note of Reader of the Court could be considered as the "date of hearing". Answer to this question is that the date of hearing which was adjourned by the Reader or Moharrir of the Court was not the "date of hearing". This was held in Muhammad Swaleh and another v. Messrs united Grain and Fodder Agencies PLD 1964 SC 97, Nosheri Khan v. Said Ahmad 1983 SCM R 1092 and Asimullah Khan and another v. Ihsanullah Khan and another PLD 2004 Pesh.
38. Keeping in view the dictum laid down in the above-cited judgments it can be safely said that 14-1-2003 was not the "date of hearing", therefore, penal action could not be taken without any notice to the petitioners on the said date. The learned Appellate Court has failed to appreciate the law laid down by the superior Courts in this regard. Thus, it has committed material irregularity.
9. I, therefore, allow the revision petition in hand, set aside the impugned judgment and decree, dated 15-10-2003 passed by the learned Appellate Court and remand the case back to the said Court with directions to decide the appeal on merits strictly in accordance with law within a period of three months positively. Parties are directed to appear before the learned Additional District Judge-I, Karak on 7-12-2004 and the office is directed to remit the record of the case to the concerned Court positively before the date fixed. accordingly.