CH. IJAZ AHMAD, J. - The brief facts giving rise to this revision petition are that the petitioner filed Reference before the Civil Court under Section 18 of the Land Acquisition Act on 10.9.1998 against the Award dated 21 5.1998 in the Court of learned Senior Civil Judge. The learned Senior Civil Judge issued summons to the respondents for 5 10 1998 respondents did not appear on 5.10.1998. The learned Senior Civil Judge passed the ex parte order against the respondents and adjourned the case for 17 10.1998. The respondents being aggrieved by the order dated 5 10.1998, filed application under Order 9, Rule 7, C.P.C, read with Section 151, C.P.C, for setting aside ex parte order alongwith affidavit of Muhammad Safdar s/o Muhammad Ishaque. The petitioner also filed an application under Order 19, Rules 1 & 2, C.P.C, to allow the petitionter to cross-examine the deponent (Muhammad Safdar). The learned Senior Civil Judge accepted the application of respondents and dismissed the application of the petitioner by consolidated order dated 6.2.1999. The petitioner being aggrieved by the aforesaid order, file review petition before the learned Senior Civil Judge, which was also dismissed by the learned Senior Civil Judge vide order dated 30.6.1999; hence the present revision petition.
2. The learned counsel for the petitioner stated that learned Senior Civil Judge erred in law to dismiss the application of petitioner and the petitioner is well within his right to cross-examine the deponent as the principle laid down in (PLD 1989 Karachi 71) and (PLD .1964 SC 236). He further stated that affidavit cannot be considered as genuine document as the learned Trial Court refused to allow the petitioner to cross-examine the deponent. He relied upon the following judgments:- (PLD 1959 Karachi 423) and (PLD 1957 Karachi 844). He further stated that contents of affidavit clearly reveal that affidavit is vague and did not mention a single word by the deponent regarding the source of information. The Trial Court should have granted opportunity to the petitioner to cross-examine the deponent. He relied upon (1991, CLC 694).
3. Learned counsel for respondents stated that revision petition is not maintainable as the law laid down by the Hon'ble Supreme Court in (1974 SCMR 532) as the petitioner has filed revision petition, against the interim order; that Trial Court rightly dismissed the application of the petitioner as the petitioner failed to file counter-affidavit and the petitioner is not entitled to cross-examine the deponent without .Filing counter-affidavit. He relied upon (PLD 177 SC 182); (1986 CLC 1408). He further urged that reference is defective as the petitioner only impleaded Sharif Trust through its trustee with no particular and specific address of the respondent No. 1/defendant was given the reference, therefore, proper service was not effected. He relied upon (1992 CLC 748).
In rebuttal, petitioner's counsel stated that it is not necessary for the petitioner to file counter- affidavit as is envisaged by Order 19, Rules 1 & 2, C.P.C.; alongwith he did not file any affidavit alongwith his application yet his application was verified on oath. The deponent is not a defendant in the reference. Therefore, the learned Trial Court erred in law to refuse the petitioner to cross- examine the deponent.
4. I have give my anxious consideration to the contention of the learned counsel for the parties and perused the record myself, It is admitted fact that ex parte order was passed on the first date of hearing by the leamed Senior Civil Judge on 5.10.1998 which was subsequently set aside vide order dated 6.2.1999. Petitioner filed an application under Order 19, Rules 1 and 2, C.P.C, to allow him to cross-examine Muhammad Safdar whose affidavit has been filed by the respondent alongwith his application for setting aside ex parte order. The same was dismissed by the teamed Senior Civil Judge vide his order dated 6.2.1999. It is settled proposition of law under Rule 7 of Order 9, C.P.C, if the defendant appears on the date to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he committed default in appearance on the first or some other hearing. The entire scheme of the code is that persons should be given a proper and full hearing to defend themselves and it nowhere says that the parties are to be deprived of their right of hearing and representation before the Court unless of course the penalties provided in the Code are attracted. The provisions of Order IX, Rule 6, are not of that nature and it can be safely said that to tum the provisions of Order IX, Rule 6, into penal provisions will result in great hardship on the defendant and will not be in accord with the provisions on the subject as the principle laid down by this Court in Ghulam Muhammad's case (PLD 1964 Lahore 782). It is also settled proposition of law that defendant by making default in appearance does not become a dead person for the purpose of the case and that he can join and participate in the proceedings onward from the stage at which the default took place. I am fortified by the following judgments:-- AIR 1955 SC 425 (Sangram Sing's case)
PLD 1970 Lahore 428 (Habib Ismail's case)
Section 53 of the Land Acquisition Act cannot be stretched to the extent to make all the provisions of the C.P.C, applicable to the proceedings under the Land Acquisition Act. The Trial Court has exercised discretion with cogent reasons that application of the respondent under Order 9, Rule 7, C.P.C, should be allowed so as to adjudicate the matter on merits. The Hon'ble Supreme Court has laid down a principle after the addition of Article 2-A of the Constitution that cases must be decided on merits instead of technicalities in Sher Muhammad's case (PLD 1989 SC 532) and the relevant observations is as follows:- "A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather then to defeat it."
Subsequently the aforesaid judgment was also considered in Mst. Sardaran's case (1993 SCMR 363) and followed the same principle. I am also fortified by the following judgments:- 1999 MLD 2146 (Alim Din's case)
1999 MLD 2202 (Adam Jee Company Ltd. Case ).
Learned counsel for the petitioner failed, to point out any irregularity committee! By the Trial Court.
The judgments cited by the learned counsel of the petitioner are distinguished on facts and law; firstly Article 2-A was not considered in the cited judgments; secondly the Supreme Court has departed from the previous practice and instead that cases must be decided on merits; thirdly as mentioned above all the provisions of the C.P.C, are not applicable in stricto-senso in the proceedings under the Land Acquisition Act fourthly no particular and specific address of the respondent was given in the reference. Even otherwise, the revision petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in Mst. Ummat-ur- Rasool's case (1974 SCMR 532).
5. In view of what has been discussed above, the revision petition has no merit and the same is dismissed.