SYED SAJJAD HASSAN SHAH, J.---By way of this single judgment, I intend to dispose of the instant revision petition and C.R. No.426 of 2010 as both the petitions are the outcome of one and the same judgment.
2. Faridullah Khan, the petitioner, challenged the judgment and decree dated 19-10-2010 passed by learned District Judge, Tank, whereby the appeal of the petitioner filed against the judgment and decree dated 12-5-2010 of learned Civil Judge-I, Tank was dismissed.
3. Briefly stated the facts are that the respondent-plaintiff (hereinafter to be referred as respondent) filed a suit for recovery of damages to the tune of Rs.24,000 in respect of malicious prosecution initiated . On the basis of a complaint under sections 3/4 of Illegal Dispossession Act, 2005 by the' petitioner-defendant (hereinafter to be referred as petitioner), wherein the respondent was acquitted on 15-5-2008.
4. The petitioner contested the suit by filing his written statement and being cardiac patient, could not manage regular attendance, as such, ex parte decree was passed against the petitioner.
Thereafter, he moved an application for setting aside the ex parte decree. Keeping in view the chequered history of the case, it was turned down. Feeling aggrieved, the petitioner filed appeals which met the same fate, hence, the present revision petitions.
5. I have considered the arguments of .Learned counsel for the parties and carefully perused the record.
6. A perusal of the record reveals that on 16-12-2009 the petitioner filed his written statement and the proceedings in the case were adjourned for framing of issues on 11-1-2010. On the adjourned date, after framing of issues, the learned trial Court posted the case for filing the list of witnesses and for recording evidence of respondent on 27-1-2010. On the adjourned date of hearing, the summoned witnesses did riot attend the Court, therefore, the matter was adjourned to. 22-2-2010 for evidence of respondent. On the adjourned date, the counsel for petitioner was in attendance whereas the notices were not served, thus, the case was adjourned to 16-3-2010. On this date of hearing, the summoned witnesses were not in attendance and none was present on behalf of Petitioner, as such, he was placed ex parte and fresh summons were issued for procuring the attendance of witnesses for 6-4-2010. On the date fixed, no witness attended the Court, therefore, the case was posted to 17-4-2010, on which date statement of Record Keeper. Was recorded and the proceedings were adjourned to 28-4-2010 for recording evidence of the respondent. On the said date of hearing, ex parte evidence of the respondent was recorded by the learned trial Court and the matter was adjourned to 12-5-2010 for ex parte arguments, whereafter, the learned trial Court on 12-5-2010 passed the impugned ex parte decree against the petitioner in favour of the respondent.
7. In view of above background of the case, no doubt the learned trial Court put efforts to procure the attendance of witnesses, however, order passed on 11-1-2010 for attendance of the witnesses but till 6-4-2010 no witness appeared before the Court and consequently no further proceedings could be carried out. It is also important to note that no witness was present on the date when the petitioner was proceeded ex parte, thus, the delay has not been caused on account of absence of petitioner and his counsel as well. If at all the petitioner's counsel was not in attendance, the learned trial Court could have procured the attendance of counsel for the petitioner. The learned trial Court while passing the ex parte judgment and decree has failed to comply with the provisions contained in Order XX, Rule 5, C.P.C, as issues had already been framed and the entire evidence of the respondent was recorded but neither any reasoning nor finding has been given in support of its decision. For the sake of convenience, the provisions contained under Order XX, Rule 5, C.P.C. Are reproduced as under:- "0-XX, Rule 5... Court to state its decision on each issue.---In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons, therefor, upon each separate issues, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
8. Without having complied with the requirements envisaged under Rule 5 (supra), the judgment and decree would not be deemed to have been passed in accordance with law. The wisdom lying behind the above provision of law is that the Court must finally and conclusively decide all the questions involved in the suit on its merits. The findings must not be ambiguous or requiring further adjudication, leaving the matter in vacuum. When the issues were framed, it was incumbent for the Court to decide the same in the light of available record but findings must be recorded on each and every issue. It is nowhere provided under Rule 5 C.P.C. That in case of ex parte proceedings, the prerequisites enumerated under the said Rule would not be applicable. Besides, it is not out of place to refer. The provision contained in subsection (2) of section 2, C.P.C, wherein the term decree has been defined as under:-- "The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final."
9. The mere fact that decision made of a matter summarily would not be considered as conclusive determination because adjudication purports only to be the conclusive of its character, which must have to be determined with reference to its true nature. There is no distinction laid down in between the determination made ex parte or in presence of the parties. The order and decree made as prescribed in the C.P.C, both must be formally expressed and be precise and in deliberate language, amenable to the execution proceedings. If the order or decree made otherwise, rather in slipshod and cursory manner, it would not be E considered, as the provisions contained in law have sufficiently been complied with. It also surely facilitates the appellate Court to determine conclusively and finally the dispute between the parties, in absence whereof no determination can be made without there being any finding in detail and made extensively in the light of the material available on the file. Certain important features embodied in section 2(2), C.P.C. Are as under:-- "Formal expression, adjudication and conclusive determination.
10. It is essential for a decree that there must be a formal expression of the adjudication because same is to be executed not the judgment, therefore, the decree must contain the formal expression, which is to be precise, deliberate and couched in legal terminology. So, without its formal expression, it cannot be operated as a decree. In any case where it is preliminary or final, the characteristic of both of them are one and the same.
11. Now it would be pertinent to examine the afore-stated formal expression at the touchstone of the intent and purpose used in definition of decree. Since the formal expression is not defined in the Code, however, it is imperative to resort its dictionary meanings. According to Black's Law Dictionary, 8th Edition, the word "formal" means (1) pertaining to or following established procedural-rules, customs, and practices, (2) Ceremonial---formality, n. Whereas, word "expressed" means declared in direct terms; stated in words, not left to interference or implication.
Similarly, according to Concise Oxford English Dictionary, the meaning of word "formal" is given as
(1) done in accordance with rules of convention or etiquette, having a conventionally recognized form, structure, or set of rules: he had little formal education. Or denoting a style of writing of public speaking characterized by more elaborate grammatical structures and more conservative and technical vocabulary. (2) officially recognized: a formal complaint. (3) of or concerned with outward form rather than content. Having a form or appearance but no true function: the committee stage would be purely formal. Relating to linguistic or logical form as opposed to function or meaning. Likewise, the word "expression" denotes (1) the action of expressing something. (2) a look on someone's face that conveys a particular emotion. (3) a word or phrase expressing an idea.
12. The other words used in the definition of decree is "adjudication", which denotes according to the Black's Law Dictionary, 8th Edition, (1) the legal process of resolving a dispute; the process of judicially deciding a case. (2) Judgment. Whereas, in Concise Oxford English Dictionary, the meaning of adjudication is given as "make a formal judgment on a disputed matter-act as a judge in a competition. Likewise, the word "conclusive" means according to above quoted dictionary, is "Authoritative; decisive; convincing . Whereas, in the latter dictionary means (of evidence or argument). Decisive or convincing. Similarly, "determination" which is defined in former dictionary as: "A final decision by a Court or Administrative < Agency the Court's determination of the issue, whereas, the meanings is given in the latter dictionary.
13. Now it is vividly clear that the spirit lying behind the definition ibid is that there must be the determination of issues or disputes between the parties in clear terms and the reader must come to the conclusion that this is a true judicial determination of the matter in controversy and the same must be distinguishable from the decision made by the Court findings on the administrative side. It should convey the formal expression of adjudication to its reader because it is not a judgment put to the execution but it is the decree which is always executed. Moreover, appeal lies against an order, judgment and decree and while deciding the appeal, the appellate Court must have some material before it to enable itself either to confirm those findings as are made in accordance with law or if found that the same are not in consonance with the mandate of law to be declared as illegal and unlawful but if at all the question raised that there 4, no findings worth the name rendered by the trial Court, how the, appellate Court would be able to determine the same as required under section 2(2), C.P.C.
14. The judgment always denotes a judicial decision made by a Court or Judge, where the adjudication seems to be made in all the matters, in controversy which would result in final disposal of the suit. The necessary ingredients of a judgment are given as there should be a statement of grounds for decision. In this regard, reference may be made to Order XX, Rule 4, C.P.C, which reads as follows:-- "0.XX, R.4. Judgments of Small Cause Courts.---(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
Judgments of other Courts---(2) Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
15. The definition of a decree as given in section 2(2), C.P.C. Does not exclude an ex parte decree nor does it make reference that the decree against minor or a decree which is ab initio void would not be decree. In case titled Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) it was held that: "Where the rights of the parties have judicially determined in terms of law enforced at the time of adjudication, the finality of such judgment would not be effected merely because the law on the basis of which that decision was reckoned has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of aforesaid judgment."
It is settled principle that the finality is always attached to the judgment which has judicially determined the rights of the parties. In the instant case, the learned trial Court while passing the ex parte decree decided in the following manner:-- "Plaintiff through attorney present.
Arguments heard record perused.
Through this ex parte order I intend to dispose of a suit filed by plaintiff for recovery of Rs.24,000 from defendant fully described in the heading of the plaint. The defendant was summoned through court process but he did not turn up despite service hence were proceeded against ex parte vide order sheet No.25 dated 16-3-2010. The case was fixed for ex parte evidence upon which plaintiff produced 05 witnesses in support of his respective contentions.
After the completion of ex parte evidence, learned counsel for the plaintiff addressed arguments before the court.
Perusal of the ex parte evidence produced by the plaintiff coupled with arguments of learned counsel shows that there exists a prima facie case. There is nothing in rebuttal to contradict the claim of the plaintiff. Therefore, ex parte decree is granted to the plaintiff as prayed for. No order as to costs."
The above referred mode and manner of determination of rights of the litigants is not supported by any law. Reliance placed on a case titled Bahadur Khan v.. Muhammad Yousaf and another (1992 SCM R 2117) wherein it was held that:-- "The learned counsel for the appellant argued that the decree passed on 18-7-1985 was ex parte and not equated with a decree passed in favour of the pre-emptor after contest by the vendees/defendants. There can be no difference between a decree passed after contest and a decree passed ex parte as both are decrees as defined in subsection (2) of section 2 of C. P. C.
And are executable."
16. There is no distinction laid down between the judgment passed N on contest between the parties or ex parte. In such circumstances, it was imperative for the learned trial Court to pass the decree after considering the entire material on merits of the case but the learned trial Court passed the decree in haphazard and slipshod manner violating the principles as laid down in sections 2(2) and 2(14) of the C.P.C. It was also incumbent for the learned trial Court to look into the merits of the 0 case and then to decide about the rights of the parties inasmuch as the learned trial Court has not even referred any piece of evidence particularly pleading of the parties and examining the same in juxtaposition with law as the respondent brought a suit for recovery of damages on account of malicious prosecution. In such like cases, it is the legal duty of the respondent first to bring his case within the ambit of those principles prescribed for awarding damages e.g. Whether the prosecution was without reasonable and probable cause? Whether the p prosecution was tainted with malice? Whether the respondent provided the detail of damages along with his plaint? All the above essentials must be discernable on the face of the plaint even if one of these questions is not appearing therein, or the same is not supported by any material appended with the plaint, suit is not liable to be decreed.
17. Be that as it may, it is rather the duty of the learned trial Court to see at the time of the institution of the suit that whether the plaint possesses the cause of action and not suffering from any fatal legal defect under the law or the suit is within time and if the suit is for enforcement of certain contracts/agreements whether the same is enforceable under the law and not hit by any infirmity laid down under the Contract Act or patently dishonest or which contained absurd and exaggerated claims. In this regard, reliance, placed on a case titled Shamroz Khan and another v.
Muhammad Amin and others (PLD 1978 SC 89) wherein it has been observed that:-- "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."
18. The ex parte decree passed while ignoring the above referred absolute conditions of the case, how it can be maintained, because the judgment and decree which is based upon no material and passed on the sole ground that there is nothing in rebuttal, therefore, the suit was R decreed. It is derogatory to the command of law that the Court is to protect the interest of defendant who has been proceeded ex parte, thus, before deciding the matter the Court has to go through the material brought on record by the plaintiff and then to adjudge according to letter and spirit of above referred law.
19. More so, the appellate Court is vested with the same powers, which the trial Court exercises during the trial of the suit in terms of section 107, C.P.C, but in the instant case, the learned appellate Court has also failed to exercise its jurisdiction as vested under the above referred law by not attending the merits of the case, as it was the bounden duty of the learned appellate Court to decide the appeal after considering the merits of the case, as the petitioner has filed his appeal against the ex parte decree within the period of limitation which can be treated as appeal against the decree under the provision of section 96, C.P.C. But the learned appellate Court illegally decided the appeal and refused to exercise the jurisdiction vested in it and exercised the jurisdiction not so vested while dismissing the appeal.
20. In view of the above, both the revision petitions are accepted, the impugned judgments and decrees of the learned appellate Court are set aside being unlawful and suffering from jurisdictional error and the case is remanded to the learned appellate Court with the direction to afford ample opportunity of hearing to both the parties and then to decide the matter afresh keeping in view the above observations. The parties are directed to appear before the learned appellate Court on 28-9-2011.