1. ' QAZI EHSANULLAH QURESHI, C.J.--- This petition for leave to appeal is directed against judgment, dated 8-4-2008 passed by the learned Single Bench Chief Court Northern Areas Gilgit in Civil Revision No,33 of 2007, whereby judgment and decree, dated 16-8-2004 passed by the Civil Judge 1st Class Gilgit in Civil Suit bearing No,156 of 1998 and appeal maintained by Additional District Judge, Gilgit was dismissed.
2. ' Briefly narrated facts of the case as envisaged from the record, are that the respondent instituted a civil suit captioned above in the trial Court for declaration to the effect that the plaintiff/respondent was owner in possession till December, 1997, vide Mutation No,1101, dated 2-4- 2001, regarding disputed Khasra No,720/48 measuring one Kanal. During the process of trial, the case was fixed for filing amended written statement on 10-5-2004, but on the said date neither defendant/petitioner appeared nor submitted amended written statement, so the case was proceeded against ex parte, and the respondent was directed to adduce ex parte evidence. The trial Judge after concluding the ex parte trial decreed the suit on 16-8-2004. Aggrieved from the judgment/decree dated 16-8-2004, the petitioner filed an application on 12-5-2005 before the trial Court under Order IX, rule 13, C.P.C. For setting aside the ex parte decree, who vide his order, dated 19-4-2007, dismissed the same, the petitioner then preferred an appeal before the learned District Judge, but the appeal met the same fate and decree passed was maintained.
3. ' The petitioner not satisfied went in revision petition before the learned Chief Court whereto revision petition was not entertained and dismissed, hence this petition.
4. ' The learned counsel for the petitioner argued that both the lower Courts below have committed material illegality, case was fixed for filing of amended written statement, which does not come within the ambit of hearing, so attracts Article 181 of Limitation Act, wherein time prescribed for the purposes is three years. Thai the learned counsel for the petitioner also argued that petitioner appeared on 19-4-2004 and application under Order IX, rule 13, C.P.C. For setting aside ex parte order was moved on the same date.The learned Court allowed defendant to join the proceedings from the stage, it was guillotined. That the counsel for the petitioner also advanced that no opportunity was provided to prove the stance taken for setting aside the ex parte decree which otherwise required evidence.
5. ' The learned counsel for the petitioner referred following case-laws in this context:-- 2001 CLC page 1977 (Peshawar), 2001 CLC 1976, PLD 1985 Kar. Page 691, PLD 1981 SC page 21, PLD 1986 Pesh. Page 81, PLD 2002 Quetta page 76.
6. ' The learned counsel for the respondent opposed the arguments strenuously put forwarded by the counsel for the petitioner that Article 181 of Limitation Act is not at all applicable in the matter, Article 164 is attracted in the instant case. He further argued that the petition is not maintainable and no sufficient cause has been advanced to consider, whether decree passed could be set aside or not?
7. ' The question of applicability of Article 164 or 181 of Limitation Act is misconceived. The learned trial Judge being conscious of law and facts of the case, has very rightly did not pass ex parte decree on the very first date i,e, 10-5-2004, but proceeded ex parte and thereafter passed the final decree on 16-8-2004, after recording ex parte evidence that the petitioner did not even turn up and made request for rejoining the proceedings till the final decree passed on 16-8-2004. The petitioner cannot take advantage of residuary Article 181 of Limitation Act when decree was not passed on the very first instance, dated 10-5-2004 further added that an application for setting aside ex parte decree, dated 16-8-2004 was challenged through application dated 12-5-2005 i,e, after laps of about 8 months which was hopelessly time-barred.
8. ' Respondent in this respect submitted the following case-laws:--- ' PLD 2002 Lah. Page 190 and 1998 CLC page 283.
9. ' Arguments heard file perused, before reaching to a correct conclusion, lets first examine the relevant laws pertinent in the case in hand.
10. ' Order IX, Rule 9. Civil Procedure Code (V of 1908).
11. ' Quote: Procedure in case of non-attendance of one or more of several defendants.---Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court, shall, at the time of pronouncing judgment, make such order as it think fit with respect to the defendants who do not appear."
12. ' PLD 1981 Lah.
508. Civil Procedure Code (V of 1908).
13. ' Quote. O.IX, R.8---Dismissal of suit for non-appearance of plaintiff---Date fixed not for hearing of suit but for making an order for future progress of case---Order of trial Court dismissing suit for non-appearance of plaintiff on such date---Held, void ab initio, without jurisdiction and a nullity in eye of law.
14. ' The definitions of word "hearing" s interpreted by the superior Courts are reproduced below:--- ' 1987 SCMR 733. Civil Procedure Code (V of 1908).
15. ' Quote. O.IX, R.8---Date of hearing of suit---Non-appearance of plaintiff effect of suit dismissed for non-appearance of plaintiff on date fixed for filing of replication, order set aside on ground that it was not date of hearing of suit at which either evidence was to be taken or arguments heard, or questions relating to determination of suit considered, but was merely for some interlocutory matter to be decided if there was a date fixed in a suit which was not for its hearing, plaintiff could not be penalized for his absence on that date.
16. 1991 MLD 975. Civil Procedure Code (V of 1908).
17. ' Quote.
0. IX, Rr.6, 13 & 115---Ex parte proceedings and ex parte decree---Validity---Ex parte proceedings ordered against defendant not on the date of hearing but on date when written statement was to be filed, would not come within ambit of O.IX, R.6, C.P.C.---Defendant had successfully proved that ex parte decree passed against him was not maintainable, for his absence in the proceedings was not relevant, as the case was not fixed for hearing as contemplated under provision of R.13(1) of O.IX, Civil Procedure Code, 1908----Revisional petition against order of trial Court was accepted and suit was restored to the file of Trial Court for its disposal according to law.
18. 1993 SCMR 1949. Civil Procedure Code (V of 1908).
19. ' Quote.
0. IX, Rr.8 & 9---Dismissal of suit on a day which was not fixed for its hearing---Date was fixed not for hearing of suit but for hearing arguments on the application for temporary injunction filed by appellant---In the absence of appellant (which was the ground for dismissal of suit) all that trial Court could do was to dismiss his application for temporary injunction but could not proceed beyond that and dismiss the suit as well---Trial Court's order in dismissing suit was thus, without jurisdiction and void---Such aspect of the case was noticed neither by the First Appellate Court nor the High Court---Orders of all the Courts below were set aside, suit would be treated as still pending, and disposed of in accordance with law.
20. 1991 MLD 975. Civil Procedure Code (V of 1908).
21. ' Quote. O.IX, R.13---Term hearing of suit---Meaning and scope-- Term "hearing of suit" would imply that stage of trial in civil action when Court had to apply its mind to pleadings of parties for framing of issues in the light of controversies raised therein and not prior to that stage.
22. 1994 CLC 2264. Civil Procedure Code (V of 1908).
23. ' Quote. O.IX, R.13 ^ 115---Setting aside ex parte decree by Appellate Court---Evidence on record clearly indicated that defendant initially had no knowledge of ex parte decree having been passed against him and when he came to know of it he filed application for setting the same aside in accordance with law---Appellate Court was thus, justified to set aside the order of trial Court rejecting application seeking setting aside of ex parte order and in accepting said application and directing Trial Court to decide the suit afresh after providing opportunity to defendant to put in his defence by filing written statement---Substantial justice having been done, no case was made out for interference in exercise of revisional jurisdiction.
24. 1984 CLC 732. Civil Procedure Code (V of 1908).
25. ' Quote.
0. IX, R.13 & 0.XIV, R.1---Ex parte decree, setting aside of---Objection touching validity or legal status of decree outside scope of provisions of O.IX, R.13, held, could not be considered---When an objection alleged in application specifically and decree sought to be set aside on legal grounds or on question of fact in light of provision of 0.XIV, R.1, C.P.C. It is necessary for Court to frame issue on such objection to provide opportunity to claimant to satisfy Court as to how decree was illegal or against facts---Decision on such issue will be subject to condition precedent as contemplated by 0.II, R.13.
26. ' The above law depicts that if defendant does not appear on the date of hearing, the Court may proceed ex parte and pass decree without recording evidence, what I, have noticed the word hearing, is conspicuously indicative which essence of word "hearing", is to be thrashed out as to whether suit was proceeded against ex parte on the date of hearing or on routine date meant for further progress.
27. ' Order VIII, Rule 10, C.P.C.
28. ' Quote. Procedure when party fails to present written statement called for by Court.--- Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
29. 1998 CLC 824. Civil Procedure Code (V of 1908).
30. ' Quote.
0. VIII, R.10---Rationale behind provision of 0.VIII, R.10, C.P.C. Was that defendant should not be deprived of putting forward his summary of defence---Written statement on date fixed by Trial Court for non-submission of same---Right to file written statement was struck off by Court--- Validity---Punitive action for non-filing of written statement should only be taken in very extreme circumstances---Record did not show that last opportunity was given to defendant to file written statement and written reply---Court in previous order had written that only in interest of justice an opportunity was being given to defendant to file his written statement---No warning was given in previous order to defendant that if he did not submit written statement or written reply: Punitive action would be taken against him---Two parallel suits being pending between parties relating to same property, defendant could not be deprived of opportunity of narrating the facts in written statement to enable Court to formulate issues on pleadings of parties---Discretion vested in trial Court to make appropriate order keeping in view of facts and circumstances of each case--- Impugned order being violative of settled proposition of law was set aside---Defendant's written statement already submitted in Trial Court in pursuance of preliminary order of High Court was accepted in circumstances.
31. 1998 CLC 824. Civil Procedure Code (V of 1908).
32. ' Quote.
0. VIII, R.10 & S.115---Order passed at preliminary hearing of revision---Effect---Court at preliminary hearing of revision, while hearing a party, impliedly or indirectly would be safeguarding interests of absentee adverse party, therefore, such Court could not decide subject-matter of any case without affording opportunity of hearing to the other side---Where Court had ordered submission of written statement to Trial Court subject to final outcome of revision, same would be open to fresh hearing on merits without keeping in view written statement by the order of Court.
33. ' The above rule postulates that when the party fails to present written statement within the stipulated time given by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. In this provision word "may" is explicitly used because of the fact that it is not mandatory or punitive to take harsh step, thereby the spirit behind the word "may" is that discretion is with the Presiding Officer taking into consideration the facts and circumstances of the case which also include, to provide opportunity etc. ' PLD 1975 SC 678. Civil Procedure Code (V of 1908).
34. ' Quote. O.XLI, R.17---Words "called on for hearing"---The word "hearing" has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court.
35. ' The expression "called on for hearing' as used in Order XLI, rule 17, C.P.C. Obviously presumes the completion of all earlier steps envisaged by rules 11 to 16 of Order XLI. Unlike the suit there would be no question of filing the written statement or of recording of evidence and therefore, an effective hearing would be one on which arguments were to be heard. This obviously presupposes the service of the parties and therefore, the Court is under an obligation to ascertain in the first instance that the respondent had been served.
36. ' Equity and justice demand that when an applicant takes some plea regarding absence and disappearance, Court is under bounden duty to give complete opportunity to a party so that he may be able to substantiate his plea as to why he failed to appear on a date fixed. In the circumstance of the case applicant must be provided an opportunity to adduce oral or documentary evidence, in order to convince and satisfy the Court as to his stance taken, whether the absence was wilful, intentional or due to unavoidable circumstance, beyond, his control.
37. ' In the wake of above, detailed discussion and deep contemplation. I am clear on the point that the party shall not be ousted mere on technical anomalies, case has to be looked into from every angle within the four corners of law. Strictly in the larger interest of dispensation of justice, to my mind deciding the case simply after hearing the arguments of the parties, is not a legal and justiciable approach, party who takes the stand he must be provided with an opportunity to prove his case through solid evidence. If commonly question cannot be resolved and the Court is unable to settle the case, the solid and cogent material is to be required. In this case the .Record indicates that the application for setting aside the ex parte decree was decided by the trial Court after hearing the argument on both sides, and no opportunity was given to the petitioner to prove, why he remained absent for so long time secondly whether he was really in the down country, if so, why, he left the proceedings unattended for a considerable period, chance has to be given to the parties to convince and satisfy the Court.
38. ' I, therefore, accept this petition set aside the ex parte decree and remand the case back to the trial Court for deciding the application for setting aside a decree after providing the opportunity of evidence to both the parties, subject to payment of cost Rs,2,000 to be received by respondent, the trial Court is also directed to conclude the process of setting aside of ex parte application within a one month from the receipt of record and, if need be, entire case, thereafter be finalized within a six months as it is a petty old case. In the meanwhile office is directed to send the record of the trial Court forthwith after completion. Order announced. File be consigned to record.