' YAHYA AFRIDI, J.---This Regular- First Appeal is directed against the judgment and decree of learned Civil JudgeII/RC, Mardan, passed on 22-6-2013, whereby application of the appellant for setting aside 'ex parte' Order/decree was dismissed along with application for condonation of delay.
2. Brief and essential facts of the case are that Muhammad Rafiq, respondent, filed a suit on 3-4- 2012, against the appellant, for recovery of Rs.1,752,000; that the appellant was summoned on 3-4- 2012 for 18-4-2012 and on the said date the appellant did not put his appearance; that the case was adjourned to 23-4-2012; that on 23-4-2012 both the parties were marked present, but as the Presiding Officer was transferred, the case was again adjourned to 30-4-2012; that on 30-4-2012, the appellant was absent and the case was adjourned to 9-5-2012; that on 9-5-2012 against the appellant was absent and a person, namely, Sajjad Hussain son of Fazal Hassan appeared in Court and stated the appellant could not put his appearance due to illness and the case was adjournment to 22-5-2012; that on 22-5-2012, again the said Sajjad Hussain appeared along with Tahir Advocate and the case was adjourned to 31-5-2012; that on 31-5-2012, the said Sajjad Hussain again appeared and submitted power of attorney on behalf of the appellant; that the learned counsel for the respondent raised objection over the power of attorney that the same was fake and fraudulent on the ground that on the said power of attorney the thumb impression of the appellant was affixed, whereas on the disputed 'Pro note' , the thumb impression as well as signature/ initial of the appellant was also visible; that the trial Court also noticed that the said power of attorney did not bear either the name or signature of any witness mandated for any such power of attorney by law; that the trial Court directed the said Sajjad Hussain to ensure the attendance of the appellant on the next dated i.e. 6-6-2012 to answer and clarify the said ambiguity; that on 6-6-2012, the appellant failed to appear and he was places ' ex parte' , the Order of the Court reads:-- "Plaintiff along with learned counsel present. Case was called for several times but none appeared on behalf of the defendants. Order No.6 and Order No.7 of this Court were crystal clear regarding the personal appearance of the defendant in the Court but today one Sajjad Hussain claiming to be attorney for the defendant failed to appear. This attitude very clearly reflected the interest of the defdt: in the instant suit. So the defdt: was proceeded against as ex parte. File to come up for list of witnesses of plaintiff on 6-7-2012."
' That on 6-7-2012, the appellant did not appear before the Court and the case was adjourned to 13;7-2012; that on 13-7-2012, the plaintiff-respondent along with his counsel was present, but the defendant-appellant was absent; that ex parte' evidence was recorded , and the case was fixed for 'ex parte' arguments on 27-7-2012; that on 27-7-2012, the Presiding Officer was on leave and the case was adjourned to 10-9-2012; that on 10-9-2012 the plaintiff-respondent was present along with his counsel, while the defendant-appellant did not appear and the impugned decision was passed by the learned Civil Judge-II/RC, Mardan:-- "In the light of what has been narrated above and as there was nothing on record to contradict the very claim of the plaintiff, so this Court was left with no other option but to believe the very version of the plaintiff to be true. So the instant suit was decreed in favour of the plaintiff and against the defendant as ex parte, as per the very contents of the plaint. Leaving the parties to bear their own costs, file be consigned to record room after its necessary completion and compilation."
' That after passing 'ex pane' decree, the respondent/decree holder moved an application on 20-9- 2012, for execution of the decree, which was sent to the Court of Senior Civil Judge, Timergara for execution, because the parties were residing within the jurisdiction of local limits of the said Court; that the appellant/judgment debtor was reluctant to appear before Court, therefore, warrant of arrest was issued against him and on 3-4-2013, he was sent to civil prison till payment of the decretal amount; that the appellant moved an application on 17-5-2013, for setting aside 'ex parte'
Order/decree along with application for condonation of delay, in the Court of Civil Judge-II/RC, Mardan, which was dismissed on 22-6-2013; that due to misconception and wrong advise, the appellant impugned the said order before District Judge, Mardan on 6-7-2013, which was subsequently withdrawn on 2-10-2013 and hence the present appeal was filed before this Court.
3. Valuable arguments of the learned counsel for the parties were heard and the record perused with the able assistance.
4. Order IX, Rule 6 of Civil Procedure Code, 1908 ("C.P.C.") relates to applications for setting aside 'ex pane' decree, which provides as under:- "0.IX-6-Procedure when only plaintiff appears.---(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- ' When summons duly served.---(a) if it is proved that the summons was duly served, the Court may proceed ex parte, [and pass decree without recording evidence]; ' When summons not duly served.-- (b)if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; ' When summons served, but not in due time.---(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement."
5. The law, as it has developed in our jurisdiction, telts in favour of decisions being rendered on merits, rather than rights being sacrifised at the alter of procedures, technicalities and rigors of rules. However, the Courts have also been very cautious to deny relief to those, who have been indolent in seeking their rights or abusing the process of law by delaying legal proceedings.
6. Some of the guiding principles for determining the applications for setting aside 'ex parte' decrees are as follows:-
(i) Application for setting aside 'ex parte' decree, dismissed by the trial Court without recording evidence for being time barred, particularly when it was not clear, whether the summonses issued to the defendants were served upon him or otherwise are accepted and the cases are set for recording of evidence of the parties. Reference is made to Haji Inayat Khan's case (2011 MLD 1697).
(ii) Knowledge of date of hearing would not be relevant, when service of summon was not proved upon the person seeking the setting aside of 'ex parte' decree. In such circumstances, the provisions of the second proviso to Rule 13 (1) of C.P.C. Of 'ex parte' decree would not apply. Usman Panjwani's case, (PLD 2012 Sindh
(iii) Once a person appears before trial Court and participates in the proceedings of the trial and thereafter absents himself leading to an ' ex parte' decree, the period of limitation is to be stringently applied.
' Asfandyar's case (2008 SCM R 287 and Honda Atlas's case (2005 SCM R 609).
Keeping in view the aforementioned guiding principles, it is noted that the trial Court without recording any evidence regarding the period of limitation, dismissed the application of the petitioner, when the appellant/defendant was not personally served in the main suit. Hence, a case for setting aside the 'ex parte' decree is made out in his favour. As far as, Asfandyar and Honda Atlas cases (Supra), cited by the learned counsel for the plaintiff-respondent, are concerned, it is noted that the same are distinguishable to the facts of present case, as the petitioner had not participated in the main suit, as was the case in said cited case decided by the apex Court.
7. On reviewing the entire evidence on the record, it is noted that recovery of huge amount of Rs.1,752,000/- is involved, this Court feels that it would not be appropriate to condemn the appellant unheard and, in fact, it would be in the interest of justice to give an opportunity to the appellant to pursue his case by producing evidence. The record further C reveals that the conduct of the appellant is also not above board, for his application for setting aside the impugned decision rendered his knowledge of the same to be contrary to the admitted dates of his arrest, for which he is burdened with a cost of Rs.50,000 (fifty thousand), to be paid to the respondent in the trial Court before proceeding with the case on 7-4-2014.
8. Accordingly, for the reasons stated hereinabove, this Regular First Appeal is accepted, the impugned order dated 22-6-2013 and the 'ex parte' Order/decree dated 10-9-2012, passed by learned Civil Judge-II/RC, Mardan, are set aside and the case is remanded to the same Court for giving an opportunity to the appellant to produce his evidence in support of his claim.
' The learned trial Court is directed to conclude the trial within a period of three months, in accordance with law, and the parties are directed to appear before the learned Civil Judge-II/RC, Mardan on 7-4-2014.