' In a suit brought by the respondent, Barkhurdar, ex parte proceedings were ordered against the petitioner, Sikandar Khan because, despite service, he had not appeared before a Civil Judge of Jhang, who was seized of the suit. The petitioner made an application under Order PPC, rule 7 of the Code of Civil Procedure for setting aside the ex parte proceedings but the said application was dismissed by the learned trial Court. After so doing, the learned Civil Judge also passed an ex parte decree against the petitioner. On this, the petitioner went in appeal before the District Judge, Jhang, but without success. He has, therefore, come up in revision to this Court.
2. Learned counsel for the petitioner contended that the learned Civil Judge had committed a material irregularity in passing the ex parte decree immediately after rejecting the petitioner's application for setting aside the ex parte proceedings. He was of the view that having rejected the application of the petitioner, the learned Civil Judge ought to have called upon the respondent to produce evidence in support of his claim because it was not obligatory for the learned Civil Judge to pass ex parte decree without recording the respondent's evidence. He relied on Shamroz Khan and another v. Muhammad Amin, etc. (1), Azizullah Khan and 4 others v. Arshad Hussain and 2 others (2) and Mst. Gul Bibi v. Hamesh Gul and another (3) to support his contentions.
3. The learned Civil Judge had passed the ex parte decree by pressing into service the provisions of clause (a) of sub-rule (1) of rule 6 of Order IX of the Code of Civil Procedure which makes the following reading :- "If it is proved that the summons was duly served, the Court may proceed ex parte and pass decree without recording evidence."
' The phrase "and pass decree without recording evidence" was added in to clause (a) by the Law Reforms Ordinance, 1972. The word "may" used therein clearly shows that after the defendant was proceeded ex parte, the trial Court had the discretion to straightaway pass an ex parte decree or require the plaintiff to produce evidence to establish his claim.
4. In the case of Shamroz Khan and another, relied upon by learned counsel for the petitioner, it was observed by their Lordships of the Supreme Court that it was not compulsory for the Court to pass ex parte decree due to the non-appearance of the defendant after service, but it was not ruled in the said case that it was obligatory for the trial Court to record evidence after having proceeded ex parte against the defendant. It was discretionary with the trial Court to pass ex parte decree or call upon the respondent to produce evidence in support of his claim. Undoubtedly, the discretion vesting in the Court was to be judicially exercised by it, and nothing has been pointed out by the learned counsel to demonstrate that it was exercised otherwise. The case of Shamroz Khan and another is, therefore, of no help to the petitioner.
5. In the case of Azizullah Khan and 4 others it was held by this Court that a party who is proceeded ex parte can take part in further proceedings of the case even if the ex parte proceedings are not set aside, This authority could be made use of by the petitioner if the learned Civil Judge had decided to call upon the respondent to produce evidence but as he had not decided to do so, the case of Azizullah Khan and 4 others is also of no avail to him.
6. Similarly, the case of Mst. Gul Bibi, cited by the learned counsel, does not advance the petitioner's case because in the case under report the Court had not passed ex parte decree in terms of the provisions of clause (a) of sub-rule (1) of rule 6 of Order IX of the Code of Civil Procedure but had proceeded to record evidence in the case because it was hotly contested by the parties.
7. The result, therefore, is that the authorities relied upon by the learned counsel do not help him out of the difficulty faced by him.
8. To my mind, the impugned order does not suffer from any illegality or material irregularity. It, therefore, does not call for any interference. The petition is dismissed in limine. {{FOOT NOTE}}
(1) PLD 1978 SC 89 (2) PLD 1975 Lab. 879
(3) PLD 1976 Pesh. 108 {{FOOT NOTE}}