1. MEHTA KAILASH NATH KOHLI, J.--- Facts of the case, in brief, are that respondent No.1 filed a suit for declaration, damages and recovery of Rs.20,37,635 against appellants and respondent No.5, in the Court of Senior Civil Judge, Jaffarabad at Dera Allah Yar bearing First Class Suit No. 15 of 1998 dated 4th May, 1998. It was stated in the plaint that in the elections 1996-97, respondent No.1 had filed his nomination papers to contest election against the seat of PB-21 Jaffarabad-II (Baluchistan Provincial Assembly). It was further stated that according to Elections Rules, before filing of nomination papers and scrutiny thereof, a candidate had to clear all the outstanding loans being obtained from any Bank, Financial Institution, Cooperative Society or any Corporate Body or other liabilities of the . Government or that of any semi-Government Corporation, including the utility bills etc. Lists from each of above said authorities/departments, issued in respect of outstanding dues against contesting candidates, were produced before Returning Officer, P13-21, Jaffarabad-II. It was the case of respondent No.1/ plaintiff that respondent/defendant No.3 had issued some false, wrong and fabricated electricity bills, wherein; an amount of Rs. 10,37,635 was shown outstanding against respondent No.1, details whereof, are reproduced as under:--
(i) Bill dated 22-12-1996, issued by the Superintendent Sub-Office, WAPDA, Operation, Dera Allahyar for Rs.2,51,519;
(ii) Bill dated 22-12-1996, issued by the Superintendent Office, WAPDA, Operation (E) Dera Allahyar Rs.2,13,320; (i.e) Bill dated Nil, with due date for payment on 28-12-1996, issued by Sub-Division Operation (E)
2. WAPDA Dera Murad Jamali, Rs. 5,10,452;
(iv) Bill dated 24-11-1996, of Sub-Division Usta Muhammad (City Feeder) Rs.62,344.
3. Total Rs. 10,37,635.
4. It is the stand of respondent No.1 that he had no such electricity connections, for which the above said bills were shown outstanding against him, as he is not in possession of any such premises, mentioned in the bills, as well as, no meter number was mentioned and also most of the relevant columns of bill, were blank. Respondent No.1 in order to get his nomination papers accepted, was compelled to deposit the abovesaid undue amount in National Bank of Pakistan, which he was not liable to pay in respect of electricity charges. It was claimed in the suit that respondent No.1 was unaware of alleged dues of WAPDA, because he had never received such bills from concerned authorities, and; the same were manipulated at the instance of his political rivals. Following relief was sought by respondent No. 1:-- "That the plaintiff therefore, prays for judgment and decree in his favour and against the defendant as under:--
(1) This Honourable Court may be pleased to declare that the action of defendants Nos.1 to 4 to supply the false, fabricated and manipulated outstanding electricity charges bills against the plaintiff as stated above was illegal, unlawful without jurisdiction actuated by malice and mala fides and was not binding upon the plaintiff and the plaintiff is entitled to recover the said amount with damages to the tune of Rs.20,37,635;
(2) To grant a decree for the sum of Rs.20,37,635 in favour of the plaintiff against the defendants Nos.1 to 4 payable jointly and severally by defendants Nos. 1 to 4 to the plaintiff;
(3) To grant costs of the suit along with any other relief deemed fit and proper to meet with the ends of justice."
5. Written statement was filed on behalf of appellants /defendants Nos.1 to 4, whereby, claim of respondent No.1 was repudiated by raising legal objections i.e. (i) suit is bad for non-joinder and mis-joinder of necessary party; (ii) suit is not maintainable under Order VII, Rule 11, C.P.C., as no cause of action had accrued to the respondent No.1 for initiating present proceedings; (i.e) the respondent No.1 has concocted a frivolous story and has not approached the Court with clean hands by concealing the material facts; (iv) suit is barred by time and is not maintainable under section 42 of the Specific Relief Act, as no lawful rights of respondent No.1 have been infringed by the appellants/ defendants Nos.1 to 4. On merits, suit was contested, wherein; it was stated that case of respondent No.1 was covered within the ambit of defaulter of WAPDA, on account of which, his nomination papers were liable to be rejected, as such, he approached appellant No.3 and after obtaining duplicate bills, same were deposited, therefore, no question of fabrication or false bills arises, as authenticity of said bills were not challenged before any forum. It was further stated that respondent No.1 was liable to deposit the above said bills, and deposit thereof, does not amount to damage his reputation.
6. Out of pleadings of parties, learned trial Court framed following issues:-- "Issues
(1) Whether the suit is not maintainable in view of P. L. O. (i, ii) and (vi to ix) of the written statement?
(2) Whether the defendants have issued false bills to the plaintiff?
(3) Whether the plaintiff approached the defendants for correction or verification of the said bills'?
(4) Whether the plaintiff had ever applied for electricity connection for the premises shown, in the bills?
(5) Whether the plaintiff was given such connection, if so, since when, and under what meters Nos.?
(6) Whether the plaintiff is entitled to any damages'?
(7) Whether the plaintiff is entitled to relief prayed for?
(8) What should the decree be?"
7. After assessm ent of evidence, learned trial Court vide judgment and decree dated 24th September, 1999, suit was decreed ex parte in favour of respondent No.1. Against aforementioned judgment and decree, appellants filed application under Order IX, rule 13, C.P.C., which along with application under section 5 of Limitation Act were allowed at the cost of Rs.300 vide order dated 3rd December, 1999, but the appellant had failed to pay cost, thus; vide judgment and decree dated 18th January, 2000, learned trial Court had decreed the suit in favour of respondent No.1.
8. Record shows that respondent No.1/decree-hodler filed application for execution of decree on 2nd January, 2003 and the learned trial Court vide order dated 21st November, 2003, set aside judgment and decree dated 18th January, 2000 with direction that the suit be re-registered and proceedings be made in accordance with law from the stage of ex parte decree. Against aforementioned order, Revision petition was filed before this Court, and vide order, dated 1st April, 2004, impugned order was set aside and the matter was remanded to trial Court for passing fresh order after providing opportunity of hearing to respective parties. The learned Senior Civil Judge, Dera Allah Yar i.e. Trial Court after appraisal of evidence, vide order, dated 28th May, 2004, rejected the application under Order IX, rule 13, C.P.C. Along with application under section 5 of the Limitation Act. Against the aforementioned order, present appeal has been filed.
9. We have heard Messrs Chaudhry Mumtaz Yousaf learned Standing Counsel and Mr. Javed Iqbal, Advocate for appellants, while Mr. Abdul Ghani Mithal learned counsel appeared for respondent No.1, as well as Mr. Abdul Raheem Mengal, learned Assistant Advocate-General, appeared on behalf of respondent No.2.
10. It has been contended by learned Standing Counsel that the initial order/decree passed by the trial Court is not a speaking judgment and has not resolved the controversy, thus; impugned order/decree was void and the limitation could be condoned and should not be considered a hurdle in setting aside the order. He has further contended that application was filed under section 5 of the Limitation Act, wherein; question was raised that it was a void order and period of delay in filing the application, has to be condoned. It was further canvassed that period for filing the application is covered within the purview of section 181 of Limitation Act, and thus; period of limitation is three years and there is no delay in filing the application.
11. On the other hand, learned counsel for respondents have supported the judgment passed by the trial Court and was of the view that a time-barred application was filed and could not have been entertained.
12. "18-1-2000. Attorney for the plaintiff along with his counsel Mr. Abdul Ghani Mithal, Advocate present. Nobody is present from the side of defendants.
13. From the perusal of the record it is revealed that defendants' application under Order IX, rule 13, C.P.C. And application under section 5 of Limitation Act were allowed at a cost of Rs.300 on 3-12- 1999 and set aside, but up till now the defendants have failed to pay cost imposed on them, and today too the defendants have failed to appear in the Court. Therefore, since ex parte proof on affidavit from the side of plaintiff is already available on record. As such under Order IX of C.P.C. The suit of the plaintiff is again ex parte decreed in favour of the plaintiff and against the defendants.
14. Decree-sheet be drawn.
15. However, parties are left to bear their own costs."
16. On perusal of above order, it reveals that respondent No.1 had produced evidence and it was incumbent upon the trial Court i.e. Senior Civil Judge, Jaffarabad at Dera Allah Yar to have adjudicated upon the matter and decided the same in accordance with the provisions of law. The said order, which is a basic order, offends the provision of A Order XX, rule 5 of the Civil Procedure Code and the Court below has decreed the suit without examining the merits and demerits of the case, and; cannot be termed as valid, legal and proper order, even; the ex parte order/judgment is required to be a speaking order/judgment, even passed under Order IX, rule 6 of the Civil Procedure Code. We are supported by the view expressed by their Lordships in case Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89. Relevant observations of their Lordships while interpreting Order IX, rule 6, C.P.C. Are reproduced hereinbelow:-- "The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads:-- "---the Court may proceed ex parte and pass decree without recording evidence...."
17. This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes of the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially. In the instant, case, however, the suit was decreed against the said respondents merely because their defence was struck of, therefore, on this ground also the suit was illegally decreed against the said respondents."
18. Following the above dictum of law, we are of the considered opinion that the initial order has been made without following the provisions of law and has not decided the controversy in dispute.
19. The next question, raised by learned counsel for respondents that the application was filed with considerable delay, and thus; the same was not maintainable in law. The Honourable Supreme Court in the cases of void orders, have delivered numerous judgments, wherein; it has been held that if the initial order is void and against the mandatory provisions of law, limitation would not run in the way of Court in deciding the B same. In the case in hand, it has already been observed by us that the initial order has not been legally and properly made, as such, delay in filing the application would not technically non-suit the appellants merely on this count. We are fortified with the view expressed by their Lordships in the case of Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84. Relevant observations are reproduced hereinbelow:-- " 13 Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellants for getting justice and in such-like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under consideration."
20. Their Lordships in another case titled Ashiq Hussain Shah v. Province of Punjab through Collector District Attock and 6 others 2003 SCM R 1840, are of the view that in such-like cases, a party should not be non-suited on technical ground. It is correct that the WAPDA authorities had not properly watched the interest of their employer and had failed to appear before the Court of law, till filing of execution proceedings and; did not bother about the progress of the case. There might be some official, in league with respondent No.1. Relevant observations in the aforementioned case, are reproduced as under:-- "4 The manner in which the matter was pursued by the subordinate officials would show that they did not properly watch the Government interest and the possibility of their being in league with the petitioner being not ruled out, we are not in favour of non-suiting the respondents on technical grounds and would prefer that the rights of parties should be determined in the property on merits, therefore, notwithstanding the disposal of appeal on merits without dealing with the question of limitation in express words, it would be deemed that there was implied condonation of delay."
21. Appeal is accordingly allowed with no order to costs.