' MAMOON RASHID SHEIKH, J.---At the outset the learned counsel for the parties are agreed and submit that although today only C.M.No,1-C/2012 is fixed for hearing, however, as a limited question of law is involved the main petition may be heard and decided today. Further submit that the main petition may be decided as a Pacca matter.
2. The office is accordingly directed to list out the main petition for today.
3. As prayed for by the parties I propose to decide the petition as a Pacca matter.
4. Through this petition the petitioner has assailed the order dated 18-6-2012 passed by the learned Civil Judge, Rawalpindi, whereby the application of the petitioner. For setting aside of the order dated 26-9-2011 initiating ex parte proceedings against the petitioner, was dismissed.
5. The brief facts necessary for the present purposes are to the effect that the respondents filed a suit against the petitioner for recovery of Rs,45,48,16,000 as damages for malicious prosecution.
Summons was initially issued in the name of the petitioner whereafter the learned trial Court directed that the petitioner be served through publication of notice in the Daily 'Nawa-i-Waqt' . The petitioner despite publication failed to appear, as a consequence ex parte proceedings were initiated against him through order dated 26-9-2011. Upon coming to know about the pendency of the suit the petitioner moved an application for setting aside of the order dated 26-9-2011. The petitioner's application, however, was dismissed by the learned trial Court through the impugned order dated 18-6-2012 by holding that the petitioner did not enter appearance despite publication of notice and the fact that there were many suits pending between the parties, therefore, the petitioner was in the knowledge of the pendency of the suit, moreover, the petitioner's application was barred by time.
6. The learned counsel for the petitioner submits that the petitioner was neither served personally nor he had knowledge of the pendency of the suit. The respondents deliberately gave the wrong address of the petitioner in the title of the plaint.. The petitioner is resident of House No,1429, Street No,83, Sector G-9/4, Islamabad, and the respondents are fully aware of this fact, the respondents, however, gave the address of the petitioner as House No,1429, Street No,43, Sector G-9/4, Islamabad. As a consequence, summons was issued in the name of the petitioner and sent to the wrong address. The publication of notice was also procured for the wrong address. Contends that the respondents were fully aware of the correct address of the petitioner as there are several suits pending inter se the parties wherein the correct address of the petitioner was available on the record. Further submits that the learned trial Court erred in ordering service of the petitioner through publication inasmuch as there was no report of the process serving agency regarding service of the petitioner personally and/or through affixation. This fact is borne out from the orders dated 16-5-2011, 30-6-2011 and 5-9-2011 of the learned trial Court. In view thereof the service of the petitioner through publication, wherein the wrong address of the petitioner had been given, cannot be termed as due and proper service. The petitioner became aware of the pendency of the suit on 24-3-2012 during hearing of another suit. The petitioner consequently moved an application on 4- 4-2012 for setting aside of the ex parte proceedings initiated against him through the order dated 26-9-2011. The petitioner's application was within time as it had been filed by the petitioner in pending proceedings upon coming to know of the ex parte order and not against an ex parte decree. The learned trial Court has, therefore, erred in holding that the petitioner's application for setting aside of the ex parte proceedings was time barred.
7. The learned counsel for the respondents controverts the stance of the learned counsel for the petitioner. Submits that the petitioner was duly served and he deliberately stayed away from the proceedings of the suit- Moreover, the petitioner became aware of the pendency of the suit in question on 16-11-2011 whilst being cross-examined in the suit entitled ' Muhammad Ramzan v. Mian Imran Khalid' . The petitioner was further made aware of the pendency of the suit when he was cross-examined during the course of hearing of the contempt petition entitled 'Muhammad Ramzan v. Malik Rehmat Ullah and others' . The petitioner, on the other hand, in his application for setting aside of the ex parte proceedings has maintained that he became aware of the pendency of the suit on 24-3-2012. The petitioner has made a deliberate misstatement. He is, therefore, liable for perjury. Contends that as the petitioner had gained knowledge of the pendency of the suit as far back as November, 2011, therefore, the petitioner's application filed in March, 2012 was hopelessly time barred. Prays for dismissal of the application of the petitioner. The learned counsel for the respondents has submitted certified copies of the proceedings in the above suit and the contempt petition in support of his contentions. Be placed on the record.. Relies on the judgments reported as Nida-e-Millat, Lahore v. Commissioner of Income Tax, Zone-I, Lahore (2008 SCM R 284), Abdul Rashid v. Director-General, Post offices, Islamabad and others (2009 SCM R 1435), Lahore Development Authority v. Mst. Sharifan Bibi and another (PLD 2010 SC 705), Secretary Education Department, Government of N.-W.F.P., Peshawar and others (2008 SCM R 287) and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCM R 631).
8. Arguments heard. Record perused.
9. One fact is crystal clear that is to say the suit against the petitioner is still pending. No final decree has been passed. However, ex parte proceedings have been initiated against the petitioner in the suit. In such like cases as soon as the defendant enters appearance and assigns a good cause for his previous non-appearance he is normally to be relegated to the stage at which he was proceeded against ex parte. The defendant is not debarred from taking part in the subsequent proceedings if either he is not able to show good cause for setting aside of the earlier proceedings or he does not feel it necessary to set at naught whatever has transpired in his absence. There may be a case where the defendant does not require ex parte proceedings to be set aside such as where he has filed his written statement and list of witnesses but is unable to appear on a subsequent date and is thus proceeded against ex parte, his mere joining the proceedings on the date thereafter can serve the purpose to contest the suit by cross-examining the plaintiff's witnesses and producing his own evidence. The defendant also without filing a written statement can have the suit dismissed by orally raising a legal objection such as questions relating to the jurisdiction of the Court and/or limitation. It is only when a decree has been passed against the defendant then a period of 30 days is prescribed for making an application for setting aside the ex pane decree. However, during the pendency of a suit A no such period has been prescribed for setting aside of ex parte proceedings. Reliance in this regard is placed on the judgments reported as Ghulam Muhammad and others v. Mst. Irshad Begum and others (PLD 1964 (W.P.) Lahore 782) and Police Department through Deputy Inspector-General of Police and another v. Javid Israr and 7 others (1992 SCM R 1009) wherein it has been, inter alia, held as under:-- ..We have considered the relevant provision of law on the subject and have gone through the rulings for and against the proposition and find ourselves in complete agreement with the reasonings and conclusions arrived at in the case of Ghulam Muhammad and others v. Mst.
Irshad Begum and others referred to above followed in the other cited judgments, which is also impliedly concurred with in the judgment of this Court in Messrs Landhi Industrial Trading Estates Limited, Karachi v. Government of West Pakistan 1970 SCMR 251. According to Order IX, R.6 where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then, if it is proved that the summons was duly served, the Court may proceed ex pane. Under the following Rule 7, if the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. Under Order XVII, R.1, the Court has the power to adjourn the hearing of the suit from time to time and under Rule 2 of the said Order, where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Reading Rules 6 and 7 of Order IX in conjunction, it is amply clear that if the defendant in spite of service does not appear on the day fixed in the summons, the Court may proceed with the suit notwithstanding the absence of defendant and if he, later on, is able to assign good cause for his previous non-appearance, he can be relegated to the stage at which he was proceeded ex pane, which nowhere lays down that the defendant shall be debarred to take pan in the subsequent proceedings if either he is not able to show good cause for the revival of the earlier proceedings or he does not feel a necessity to undo whatever is already done in the case and simply stands in need of contesting the suit from the later stage. Since the provisions of Order IX, have been made applicable to adjourn hearing under Order XVII, therefore, there may be cases in which setting aside of the earlier proceedings may not be felt necessary, for instance, if the defendant has already written statement and list of witnesses and is unable to put in appearance on subsequent date, his mere joining the proceedings can serve the purpose to contest the suit by cross- examining the witnesses of the opposite side and producing his own evidence. Even if he has not filed written statement, he may be in a position to secure the dismissal of the suit by raising an objection, orally, to the jurisdiction of the Court, limitation etc. In the absence of any clear provisions in the Code of Civil Procedure prohibiting the appearance and taking part in the proceedings by the defendant, proceeded ex parte there can be no legal bar to allow him to defend his rights. It is the right of every defendant and also the principle of natural justice, to be given a chance of hearing before order is passed against his interest. The rules of procedure are meant to advance justice and preserve rights of litigants and they are not to be interpreted in a way as to hamper the administration of justice. As such, in the absence of any clear prohibition in the scheme of civil procedure denying the defendant of his right to take part at any stage of the proceedings after the order of ex parte proceedings, he can appear and defend the suit if somehow his application for setting aside the ex parte proceedings does not succeed on account of his failure to show good cause for his previous non-appearance. It is, therefore, held that the defendant who had been proceeded against ex parte can take part in the subsequent proceedings as of right...."
10. When the facts of the case are looked at in the light of the judgments referred to above the impugned order dated 18-6-2012 does not appear to remain sustainable. Moreover, there is nothing on the record to show that the petitioner was actually served in person or that the address of the petitioner had been correctly given in the plaint and the summons were served upon him in accordance with the law.
11. As to the contention of the learned counsel for the respondents that the petitioner was served and chose to remain away from the proceedings suffice it to say that during the course of cross- examination referred to by the learned counsel for the respondents the respondents themselves chose to question the petitioner regarding his lack of knowledge of pendency of the instant suit.
These questions themselves go to show that the petitioner had not been served and that he was unaware of pendency of the suit.
12. Under the circumstances, on the basis of the judgments cited in para 9 above the instant petition is allowed, however, subject to payment of Rs,10,000 as costs by the petitioner to the respondents. The parties are directed to appear before the learned trial Court. The petitioner shall be at liberty to file his defence and contest the suit in accordance with the law subject to, however, as aforesaid. The learned trial Court in turn is directed to proceed in the matter strictly in accordance with the law.