This civil revision arises out of a suit filed by the respondent against the petitioner (hereinafter called the plaintiff and defendant respectively). The plaintiff was appointed as on Octroi Moharrar by the defendant on 8-11-1969. On 10-12-1970 whilst be was still on probation, his services were terminated. Thereafter on 24-2-1973 he filed the suit out of which the present revision arises for a declaration to the effect that the order of termination was illegal, void and not operative.
2. It appears that a written statement was filed by defendant/petitioner, in which various preliminary objections were also raised. After framing the issues recording of plaintiff's evidence I commenced. However, on 8-3..1977, the file of the suit was sent by the trial Court to the District Judge for transfer to any other Court of competent jurisdiction. On 24-3-1977, the learned District Judge transferred the suit to the Court of Senior Civil Judge, Kasur and directed the parties to appear before the trial Court on 26-3-1977.
As the defendant did not appear before the trial Court on 26-3-1977, notice was directed to be issued to him. Accordingly on 28-4-1977, after satisfying itself that service had been effected on the respondent, the trial Court directed ex parte proceedings against the defendant. On 15-6-1977, the plaintiff's evidence was closed in the absence of the 4efen--dant and the hearing was adjourned to 3-7-1977 for arguments. On account of the absence of the Presiding Officer, the hearing was adjourned from time to time till 23-10-1977 when it appears that both the parties were present before the trial Court and the defendant sought adjourn--ment to enable it to file an application under Order IX, rule 7 for the setting aside of the ex parte proceedings. Time was accordingly allowed to him to do so up to 6-12-1977. It appears that on 13-12-1977 the defendant did file an application to set aside the ex parte proceedings on which notice was directed to issue to - the plaintiff for 18-12-1977. On 18-12-1977, there is short order on the application under Order IX, rule 7 to the effect that the application is being dismissed on account of the failure of the defendant to deposit process fee for service of the defendant. It may be noted that the main case was also fixed for arguments on 18-12-1977 and on the order-sheet of the main case, there is an order to the effect that the arguments had been heard and that the case was adjourned for orders to 5-1-1978. There is also a direction to the Ahmad of the Court to locate the application, which appears to be a reference to the application under Order IX, rule 7. On 5-1-1978 the parties were present before the trial Court, but no order was announced and the case was adjourned with a direction to the Ahmad of the Court to find out the application. Further adjournment for this purpose took place on 17-1-1978. Subsequently on" 25-1-1978 written arguments were directed to be filed and the case was adjourned from time to time up to 11-3-1978 .When. The suit was decreed ex parte. A reference to the judgment and decree of the trial Court shows that the trial Court proceeded to pronounce an ex parte judgment noting the contentions of the parties, the evidence on record and without giving any find--ings on the issues.
3. The defendant's appeal before the learned. District Judge, Kasur, also failed on 20-11-1978.
Learned District Judge affirmed the decision of the trial Court and it is significant to note that he also did not note the con--tentions of the parties or the issues, nor did he give any finding on the issues. He merely affirmed the order of the trial Court.
4. Learned counsel for the petitioner/defendant has argued that the provisions of clause (a) of sub-rule (1) of rule 6 of Order IX are not at all applicable to the present case, which only permits a Court to proceed ex parte and to pass a decree without recording evidence, if the plaintiff appears and the defendant does not appear on first date of hearing. Learned counsel argued that in the present case the evidence of the plaintiff was recorded and the judgment and decree were passed after arguments of both the parties have been heard on 18-12-1977, which could not by any stretch of imagination be termed as the first date of hearing. Learned counsel for the appellant in this context relied on two judgments of the Supreme Court reported as Rehman's Weaving Factory v.
Industrial Development Bank of Pakistan (PLD1982SC21) and Sham Rose Khan v. Muhammad Amin (NLR1981CivilSC560). In the case of Rehman's Weaving Factory, it has been declared that the provisions of clause (a), sub-rule (1) of rule 6 of Order IX, C. P. C.. Are only applicable to the date of first hearing and in the case of Sham Rose Khan it has been declared that even where the said provisions are applicable, it is in the discretion of the trial Court which has struck of the defence of the defendant to decide whether the suit should be decreed after recording -of evidence or without recording of the evidence. It is obvious in the present case, the later judgment is not applicable, as evidence had been recorded by the trial Court. The only question is whether after recording the plaintiff's evidence and hearing the arguments, the trial Court could proceed to decree the suit of the plaintiff without giving any finding on the issues framed by the Court and without discussing the merits of the case. That such a course of action is per--missible where the suit is decreed under rule 6 of Order IX of the Code of Civil Procedure is indisputable as held in Rehman's Weaving Factory's case. However, there is no rule that I am aware of, in the Code of Civil Procedure permitting the trial Court to decree a suit in which evidence has been recorded and arguments heard, without complying with the pro. Visions of Order XX, rule 4 of the Code of Civil Procedure, which prescribes that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such a decision. Where this rule is not complied with, the judgment may be set aside. These requirements must be met even by an ex parte judgment. Reference in this behalf can be made to the judgments in Gouranga Mohen Sikdar v. The Con--troller of Imports & Exports (PLD 1970 SC 158); Mollah Ejahar Ali v. Government of East Pakis. Tan (PLD 1970 SC 175) ; Muhammad Siddique v. Syed All Shah (PLD 1976 Lah. 293) ; Mst. Fatima v. Khuda Bux (PLD 1959 Lah. 826) ; Haji Abdul Baqi v. Muzaffar Ali Khan (PLD 1978 Quetta 56) ; Abdul chant v. Sale Muhammad (PLD 1960 Kar. 594) and Prokhar Protab Dhas v. Alam Hussain (PLD 1968 Dacca 508). The judgment of both the trial Court as well as the learned lower appellate Court do no 't comply with the provisions of rule 4 of Order XX. The evidence led has not been examined and none of the issues framed determined. In these circumstances these judgments cannot be sustained.
5. Learned counsel for the defendant argued that the order rejecting the application for setting aside the ex parte proceedings is also. Not sustain--able. As already noted, the application for the setting aside of the ex parte order was submitted to the trial Court on 12-12-1977 and notice was directed to be issued to the plaintiff for 18-12-1977. On 18-12-1977, it appears that the trial Court took up the application under Order IX, rule 7 in the earlier part of the day as is evident from the order of the same in the main suit, in which a direction has been given to the ahlmad to locate the application, which obviously, has reference to the application under Order IX, rule 7. Learned counsel for the defendant argued that it is obvious, therefore that on 18-12-1977 the plaintiff was present in the Court, and it is further obvious that both, the application for setting aside of the ex parte order as well as the main suit, were fixed for hearing before the trial Court on the same day.
These two facts cannot be controverted. As has been laid down in the High Court Rules and Orders ex parte orders should not be made in the earlier part of the day, but the Court should wait till the later part of the day before making such ordeRs.In the present case, bad the Court done so, it would have found that both the parties were present in the Court and there would have been no occasion enabling the trial Court to dismiss the application for the setting aside of the ex parse order on account of failure of the applicant/defendant to deposit the process fee. Reference in this context may be made to the judgments in Mst. Karam v. Noor Muhammad (PLD 1976 Lah. 498), H.
M. Sadiq v. Volkart (Pak.) Ltd. (PLD 1976 Lah. 1460). Punjab & Kashmir Bank Ltd. v. Sh. Mabboob Alam (PLD 1966 Lah. 356). In these circumstances, the order dated 18-12-1977 rejecting the application of the petitioner/defendant to set aside the ex parse order and proceedings is clearly unsustainable and is set aside.
6. In this view of the matter, the revision petition is accepted and the order dated 18-12-1977 rejecting the application of the petitioner/defendant for the setting aside of the ex parte order is set aside and also the judgment and decree of the trial Court dated 11-3-1978, and that of the lower appellate Court dated 20-I 1-1978. The case is remanded to the trial Court for hearing and disposal in accordance with the law, after deter-- mining the defendant's application dated 13-12-1977 for setting aside the ex parte proceedings <p.m></p.m>