1. ' MUZAFFAR ALI, J.--- This case has been remitted back to me by the august Supreme Appellant Court, Northern Area Gilgit, after setting aside judgment dated 14-11-2007 passed by me with the direction to give de nove judgment in the case with reasons, treating the 2nd appeal, as revision.
2. ' The facts of the case are as such that the Civil Suit No,73 of 2002 was instituted on 23-1-2002 in the Court of Civil Judge, 1st Class, Astore and on 23-4-2003, the suit was transferred to the Court of Civil Judge, Chillas by the Additional District Judge, Diamer. The parties to the suit appeared before the learned Civil Judge, Chillas and the suit was fixed on 10-6-2004 for plaintiff's evidence. On 10-6- 2004 the defendant remained absent from the Court but a counsel named in the order sheet as Mir Muhammad, stated at bar that he has been engaged by defendant and, he would submit his Wakalat Nama on the next date and the request of the named counsel was allowed by the Court.
3. The plaintiffs also failed to produce their witnesses, but they submitted an application under section 151, C.P.C. With the prayer to file list of witnesses. The application was refused and the case was again fixed for plaintiff's evidence on 9-8-2004 and on 9-8-2004, the defendant was proceeded ex parte and statements of P.Ws. Were recorded by depriving the defendant from his right to cross-examine the P.Ws. As he was absent and proceeded ex parte.
4. ' On 24-8-2004, when the suit was fixed for consideration, the defendant appeared before the Court and submitted an application for setting aside ex parte proceedings dated 9-8-2004 against him. The case was fixed on 11-9-2004 for replication to the application and the plaintiffs submitted their replication against the application on the fixed date and the case was adjourned for arguments on the application on 30-10-2004 but the arguments on the application could not be heard on the appointed date as the record of the case was called by this Court in connection with transfer application. This Court refused the transfer application and the parties were directed to attend the Court of Civil Judge Chillas again on 5-3-2005. The defendant failed to attend the Civil Court, Chillas on the above date and he was once again proceeded ex parte without disposing the application dated 24-8-2004 for setting aside the ex parte proceedings dated 9-8- 2004. The ex parte proceedings dated 5-3-2005 followed the decree dated 23-6-2005.
5. ' The decree dated 23-6-2005 was challenged before learned Additional District Judge, Astore directly and the learned Additional District Judge took cognizance of the same without it being assigned to him under section 4(2) of the Civil Courts Ordinance 1962 (hereinafter called Ordinance) and dismissed the appeal on the point of limitation. The order passed by the learned Additional District Judge was impugned before me and I without going into merits deeply. Passed the order dated 14-11-2007 and remanded the case to the trial Court by setting aside thp impugned orders passed by both the learned lower Courts. The order dated 14-11-2007 was assailed before august Supreme Appellate Court Northern Areas and honourable the Judges of the Supreme Appellate Court being dissatisfied with the order, remitted the case back to me With the direction to pass de novo judgment on the subject with cogent reasons as required by law to follow by a Judge. At this juncture, I without suffering from egotism concede, that the august Supreme Court has very rightly pointed out my slackness. So I as per direction of the august Supreme Appellate Court converted the 2nd appeal into revision and heard the learned counsel for the parties and reached to the conclusion as under:--- ' On going through the record and the relevant laws with the assistance of both the counsel, I feel that both the impugned judgments required to be examined in the light of Order IX, rule 6(1)(a), C.P.C.
6. Order IX, rule 6(1)(a). "When summons duly served.---If it is proved that the summons was duly served the Court may proceed ex parte [and pass decree without recording evidence]; ' This provision of law empowers Court to proceed a defendant ex parte, if he does not appear before the Court when the suit is called on for hearing and if summons has duly been served, the Court may proceed ex parte and pass decree without recording evidence. In this provision the words "the suit is called for hearing" are having very legal importance and the higher judiciary as well as the august Supreme Court of Pakistan has interpreted the word "hearing" as means (a) a date fixed for hearing of final arguments on the subject-matter (b) a date fixed for evidence (c) a date fixed for framing of issues by the Court. While a date fixed for hearing of interlocutory matters is not a date of hearing of the case, for instance a date fixed for hearing of an application submitted to meet a situation arisen during pendency of the suit, is not a date which comes within the ambit of "date of hearing" of the suit and if any party to the suit does not appear on such date before the Court, then the Court can dispose of the application by deciding the interlocutory issues arisen therein and the suit itself cannot be disposed of. In holding the above view, I have been supported by case-law as under:---
(1) 1987 SCMR page 733, (2) PLD 1975 SC page 678, (3) PLD 1973 Lah. Page 659, (4) 1993 SCMR page 1949, (5) 1992 SCMR page 707, (6) PLD 1991 SC page 1104, (7) PLD 1990 SC page 285, (8) 1997 CLC page 1080 and (9) PLD 1993 Lah. Page 564.
7. ' Keeping the above discussion in view, I perused the record of the case and visited the order sheets maintained by the trial Court thereby, the suit was proceeded ex parte on 9-8-2004 against the defendant for his absence from the Court on the said date and statements of P.Ws. Were recorded as the date fixed for, and the suit was fixed for consideration on 24-8-2004. The defendant appeared before the Court on 24-8-2004 and submitted an application for setting aside the proceedings dated 9-8-2004 taken against him and the date was adjourned for replication to the application and after receiving the replication, issue under application was fixed for arguments on 30-10-2004, but before the arguments on the application were heard, the record was called to meet a transfer application by this Court and the case was remitted back to the Civil Court by this Court fixing the date as 5-3-2005 to appear the parties before the trial Court. On 5-3-2005, the defendant failed to appear before the trial Court on the appointed date and the trial Court once again proceeded the defendant ex parte and the suit was fixed for consideration which followed the judgment dated 23-6-2005 instead of dealing the previous application submitted by the defendant for setting aside the ex parte proceedings dated 9-8-2004 against him as the same was subjudice to dispose of prior to record was called by this Court, hence the above date on which the defendant was proceeded second time was not a date of hearing.
8. Since, the date, on which the defendant was proceeded ex parte was not a date fixed for hearing of the suit but was supposed to be fixed to deal the interlocutory matter under the application dated 24-8-2004 and also the date was not fixed by the trial Court but was fixed by this Court directing the parties to attend the trial Court as such the ex parte proceedings on the date were without jurisdiction and null and void ab initio. I am supported in holding the view by the case laws (1) PLD 1964 SC 97, (2) PLD 1973 Lah. Page 659, (3) PLD 1981 SC page 21, (4) 1991 MLD 63, (5) 1990 CLC 1473,
(6) PLD 1986 Quetta 121, (7) 1986 CLC 1320, (8) PLD 1981 Lah. 508 and (9) 1971 Lah.
9. 746.
10. The judgment dated 23-6-2005 though has been passed on merits, discussing the evidence adduced by the plaintiffs but the same follows the ex parte proceedings against the defendant and the ex parte proceedings having no legal effects, as the date was not for hearing of the as such no limitation will run against it and it can be set aside under section 151, C.P.C. And once the section 151 is taken into cognizance then Article 181 of the Limitation Act governs the issue which provides 3 years of limitation period. The learned 1st Appellate Court has also erred in law by ignoring this crucial legal aspect of the case, hence the order dated 17-5-2007 has no legal effect and also without jurisdiction under the Ordinance as the Appeal No,CA5 of 2005 has been taken cognizance of, without being the same entrusted to the learned Additional District Judge by the District Judge concerned. On the above point of law, I have been assisted by the case-law cited as
(1) 1992 SCMR 707, (2) 1987 SCMR 733, (3) PLD 1975 SC 678, (4) 1997 CLC 1080, (5) 1993 CLC 926, (6)
11. 1990 CLC 1473, (7) 1988 MLD 69, (8) PLD 1976 Pesh. 108, (9) 1973 SCMR 103, (10) PLD 1964 SC 97, (11)1986 CLC 1320, (12) 1986 CLC 2507, (13) PLD 1986 Quetta 121, (14) 1985 CLC 471, (15) 1983 CLC 1238,
(16) PLJ 1982 Lah. 261, (17) PLD 1981 Lah. 508, (18) PLD 1971 Lah. 746, (19) PLD 1970 Lah. 412, (20) PLD 1967 Lah. 151, (21) PLD 1964 B.J. 58, (22) 1993 SCMR 1949, (23) PLD 1977 SC 599, (24) 1973 SCMR 103 and (25) PLD 1971 Quetta 77.
12. ' The above discussion, after going through the relevant case-law made by the august Supreme Court of Pakistan and High Courts, has persuaded me to hold that both the impugned orders are without jurisdiction, void and having no legal effect as such it is least important to go into the point that either the defendant has shown sufficient or good cause for his absence from the Court on the appointed date or not, as this point would be important when the appointed date was proved to be the date of hearing of the suit.
13. ' Consequent upon the above discussion, both the impugned orders/decree passed by the learned trial Court as well as the learned Additional District Judge are set aside and the case is remanded to the trial Court to hear the application dated 24-8-2004 filed by the defendant for setting aside ex parte proceedings dated 9-8-2004 against him and to dispose the same on merits then to move towards the suit. The trial Court is also directed to expedite the trial keeping in view the delay caused in the matter. The defendant is also penalized to pay cost of Rs,10,000 for his irresponsible attitude in the case, parties to appear before the trial Court on----------