Government of NWFP through Secretary Irrigation and Power Department, Peshawar sued the defendants-responde ;its for recovery of a huge amount of Rs, 3,71,79,137/- through its plaint dated 1.1.1998, where Defendant-Respondent No, 2 M/s. East West Insurance Company entered contest while Defendant-Respondent No, 1, M/s. Hussain-Marn Company was proceeded against ex-parte and learned trial Court after framing of issues directed the parties to produce their respective evidence.
2. It was in compliance of the said directions when on 30.10.2004 examination-in-chief of P.W.1 was recorded and case was adjourned for cross-examination of the said PW due to the request of the counsel for Respondent No, 2 and non-availability of certain record. The case thereafter was adjourned a number of times and on 12.1.2005 when the plaintiffs-petitioners sought adjournment, a 'warning under Order XXVII, Rule 3 CPC was issued to the said plaintiff and case adjourned to 17.1.2005,'on which date as. per order sheet, the defendant-respondent absented and accordingly proceeded against ex parte.
3.Without caring for the non-availability of any evidence on the file and the suit pertaining to recovery of huge amount of over rupees 37 million, the learned trial Court straightaway fixed the case for ex parte arguments and order on 28.10.2005, on which date she passed ex parte decree in favour of plaintiff-petitioner and against the defendants-respondents, which is reproduced herein:-- "Counsel for the plaintiff present. Representative of the plaintiff present. Suit for recovery of 3,71,79,137/- instituted. Defendant were summoned. Defendant No, 2 appeared before the Court contested the suit by submitting written statements while Defendant No, 1 placed ex parte. During the proceeding Defendant No, 2 may absent and placed ex parte on 17.1.05. Plaintiff proved his case though his evidence ex parte arguments heard. There is nothing in rebuttal so ex parte decree is here by granted. No orders as to costs. Fill be consigned to record room after its necessary completion.
Sd/- Shabana Mahsood Civil Judge, Peshawar."
4. It was on 5.12.2005 that Defendant-Respondent No, 2 moved an application for setting aside the ex parte decree and order dated 28.10.2005, which was contested by plaintiff-petitioner through ,replay dated 19.10.2006, whereafter the learned trial Court through the impugned order 15.5.2007 accepted the application dated 5.12.2005 through the following concluding para of her order:-- "On 28.1.2005 ex parte decree was passed. An execution of decree was filed on 19.10.2006 whereas setting aside ex parte decree application was filed on 5.12.2005. No, doubt application has delayed in filing of setting aside ex parte decree but there are plethora of judgment of superior Courts that full opportunities should be given to parties and technicalities should be avoided for the ends of justice. Moreover, the conducts of applicant from the file clearly reflects that applicant was vigilantly pursuing the case and as such cannot be punished for one absence and retard his rights.
Hence, application is accepted with cost of Rs,2,000/-. File to come up for evidence of plaintiff on 19.6.2007.
Sd/- (Sumbal Naseer)
CJ/JFC-VIII, Peshawar."
5. The plaintiff-petitioner being aggrieved of the setting aside of the ex parte decree has questioned the same through this revision petitioner.
6. Mr. Zahid Yousaf, learned A.A.G. argued that the application for setting aside ex parte decree dated 28.1.2005 was filed on 5.12.2005 and was thus beyond the prescribed period of limitation under Article 164 of the Limitation Act. It was further contended that defendants-respondents had purposely absented from the proceedings in the suit and thus entitled to no leniency. To support his contention, he placed reliance on law laid down by Hon'ble Supreme Court of Pakistan and reported as 2005 SCM R 609, and 2006 SCM R, 631 and contended that in the absence of application under Section 5 of Limitation Act, the defendant-respondent was not entitled to the acceptance of the application.
7. As against that Mr. Mushtaq Khan, Advocate representing Defendant-Respondent No, 2 argued that the trial Court had passed a well reasoned order, which was in the interest of safe administration of justice because earlier the said Court had without recording any evidence and/or referring to a single document passed a decree of huge amount of over 37 million rupees in favour of the plaintiff-petitioner and against the defendants-respondents which decree was not at all maintainable and thus the trial Court has rightly allowed the application and set aside the ex parte decree. No doubt, the Hon'ble Supreme Court of Pakistan in the case of Honda Atlas Cars (Pakistan Ltd.) Vs. Honda Sarhad (Pvt.) Ltd. and others (2005 SCM R 609) and Shahid Pervez alias Shahid Hamid Vs. Muhammad Ahmad Amin (2006 SCM R 63), settled the law that an application for setting aside an ex parte decree has to be filed within thirty days as pre; -ided under Article 164 of the Limitation Act and not under Article 181 as had been earlier held in the case of M/s. Rehman Weaving Factory (Rgd). Vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21), which article of the Limitation Act provides three years period of limitation.
8. The application of the Defendant-Respondent No, 2 being not supported by any application u/S. 5, Limitation Act did not deserve to have been given a favourable consideration but in the cases aforestated where the Hon'ble Supreme Court Settled the law, ex parte evidence had been recorded by the Court seized of the suits and thereafter on appraisal thereof passed ex parte decrees against the defendant.
9. The instant is a case where inspite of complicated questions of facts being involved and in the absence of evidence, the trial Court being ignorant of the settled law on the subject proceeded to pass an ex parte decree against the defendants-respondents and in favour of the plaintiffs- petitioners, which ex parte judgment has been reproduced in the earlier part of this judgment. The same can hardly be termed to be a legal verdict. The Hon'ble Supreme Court of Pakistan in the case of Kamran Co and other Vs. M/s. Motors and another (PLD 1990 SC 713), held that in the absence of evidence a decree could not be passed and that if was incumbent upon the trial Court, particularly when the defendants in the written statement categorically denies the liability and when issues had been framed by the trial Court, to record evidence and then decide the case on merits. The same view was reiterated by the said Hon'ble Court in the judgment reported as PLD 2005 SC 337 (Provincial Government through Collector Kohat and another Vs. Shabir Hussain, where it was held as under:-- "(a) Civil Procedure Code (V of 1908)--- O. IX, Rr. 11 & 13---Ex parte decree after filing of written statement by defendant, but in absence of any evidence led by plaintiff---Not justified---Such decree was set aside and suit was remanded to Trial Court for its decision on merits and in accordance with law. Kamran Co. and others Vs. Messrs Modern Motors and another PLD 1990 SC 713 fol.
(b) Civil Procedure Code (V of 1908)-- ----0. IX, R. 11---Suit involving matter relating to public interest and public property--Ex parte decree, passing of---Duty of Court not to shut its eyes to legal and factual aspects involved in suit but to protect public interest and public property being its final custodian--Principles highlighted. The Courts of law must always keep in mind that even where the law ermitted assin of an ex arte decree the Judicial Officers should not adopt the said course of action with their eyes completely shut to the factual and legal aspects involved in the matter e.g. if a suit is filed seeking 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? Likewise, Judicial Officers are required to exercise cauti9n when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. Courts have never (sic) in favour of giving of preferential treatment to the Government Departments or agencies but Courts 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 Government agency.
(The underlining is mine)"
10. The instant was a case where while passing the ex parte judgment and decree on 28.1.2005, the learned trial Court had totally shut its eyes and probably had not even looked to the contents of the plaint otherwise decree for such a huge amount would not have been passed in the presence of a very bulky record and that too without any proof, as evidence had yet to be recorded.
11. The trial Court has in its order impugned herein also taken notice of the fact that in view of the law settled by the superior Courts to give full opportunities to the parties and avoid technicalities for doing complete justice and also that the conduct of the Defendant-Respondent No, 2, as apparent from the record of the case was that of a vigilant party.
The order passed by the trial Court on 15.5.2007 and impugned in this revision, which has undone its earlier illegality is thus maintained but the costs imposed upon the Defended-Responded No, 2 in the sum of Rs, 2,000/- appears to be too meager an amount and thus, I enhance the said costs from rupees two thousand to rupees thirsty thousand, to be deposited by the Defendant- Responded No, 2 in the trial Court or in the account of the Provincial Government. Since the suit had been filed in January, 1998, therefore the trial Court is directed to conclude the trial as early as possible but not later than one year from the date of passing of this order.