This Revision petition under section 115, C. P. C. Is directed against judgment and decree dated 25- 4-1978 whereby the suit of Abdul Hamid Respondent was decreed ex parte and the judgment and decree dated 10-5-1979 of the District Judge whereby he affirmed the aforesaid judgment and decree.
2. The facts leading to the passing of ex parte decree against the petitioners is that the suit was fixed for 24th January, 1978 for service of the Defendant-Petitioners. On this date as the service had not been effected the process was ordered to be issued for 22-2-1978. Rehmat Ali petitioner was served for this date and as he did not appear he was ordered to be proceeded ex parte. The suit was then adjourned to 14th of March, 1978 for effecting service on Muhammad Ali Petitioner. On 14th of March, 1978 service being complete the suit was adjourned for 26th for filing of the written statement. The suit was thereafter adjourned to 22nd of April, 1978 as the Presiding Officer bad been transferred and the new incumbent had not yet taken over the charge. 22nd April, 1978 was a public holiday and, therefore, the case was put up on 23-4-1978. The case was again adjourned for 25-4-1978 and on this date, respondent/plaintiff was present but the appellants were absent and the learned trial Judge decreed the suit ex parte observing as under :- The appeal filed by the Defendant/Petitioners as indicated above was dismissed.
3. Learned counsel for the petitioners submitted that the learned trial Judge acted illegally in granting the ex parte decree without recording any evidence and that no reason whatsoever was given while observing that there appears to be no necessity of recording the evidence. It was further asserted that both the learned Courts below have acted arbitrarily in rejecting the plea of the petitioners that their failure to appear on 22-4-1978 was due to bona fide mistake and in any case the petitioners could not have been proceeded ex pane as 22nd of April, 1978 was not the "date of hearing" as the said date was fixed for filing of the written statement alone. Learned counsel for the respondent has asserted that on 26-3-1978 Muhammad Ali petitioner was present in person when the case was adjourned to 22nd of April, 1978 and that his counsel was not present and, therefore, the plea taken in paragraph 3 of the memorandum of appeal that the adjourned date was intimated by the counsel and that the appellant was not present in the Court of the trial Judge was patently untrue. He asserted that in these circumstances, the learned Courts below were justified in not setting aside ex parte decree. It was further pointed out that in the order dated 26-3-1978 the date 22-4-1978 has been overwritten and it has been made to read as 22-5-1978.
This overwriting apparently was done by some one so as to support the plea that the suit was adjourned to 22nd May, 1978 and not - to 22nd April, 1978. As regards this overwriting the observations recorded by the learned Additional District Judge to the effect that "This overwriting appears to have been made in order to suit the contention of the appellants. Had there been any such overwriting "previous to 23-4-1978 it would have certainly come to the notice of the learned Presiding Officer", are fully justified. It is unfortunate that interpolation in the judicial record was so easily made and the Courts below have not taken notice of the same and no action has been taken against any official of the Court who made the interpolation or had facilitated the making of such interpolation. An enquiry should be held to find out the defaulting official and after fixing the responsibility proper legal action should be taken against the defaulting official.
4. Reverting to the merits of the Revision petition, despite the finding that the date fixed was 22nd of April, 1978 and despite the absence of the petitioners on the said date the grant of the ex pane decree under Order IX, rule 6 cannot be upheld. The learned trial Judge failed to determine judicially the question as to whether recording of evidence in the case is necessary or not. The learned trial Judge gave no reasons for observing that there appears to be no necessity for recording the evidence in the case. This was a suit for permanent injunction restraining the defendants/petitioners from interfering in the tube-well alleged to be possessed and owned exclusively by the plaintiff/respondent. In such a suit naturally there cannot be any material on the record for arriving at the conclusion that the assertions made in the plaint are correct. On enquiry learned counsel for the parties bad to concede that the assertions contained in the plaint could only be proved by production of evidence at trial. The necessity of applying judicial mind on the question whether or not recording of evidence is necessary was pointed out by learned Judges of the Supreme Court in Shamroz Khan and another v. Muhammad Amin and others (PLD1978SC89). It was observed after quoting the provisions of Order IX, rule 6(1)(a), C. P. C. As under :- "The words `and pass decree without recording evidence' were inserted by the Law Reforms Ordinance, 1972, and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts .To decree a suit without 'recording evidence? If Mr. Inayat Elabi'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 . . . . .--- This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes of the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially."
5. In the instant case, the suit was decreed against the petitioner without applying judicial mind to the nature of the assertions made and without judicially determining the necessity of recording evidence. This aspect of the case was also not noticed by the learned Additional District Judge.
6. For the reasons given above, the impugned judgments and decrees of both the Courts below are set aside with the result that suit shall be proceeded with in accordance with law by the trial Court.
The Revision petition is accepted with no order as to costs.
K. M. A.