' RAM MUHAMMAD KHURSHID KHAN, C. J.-This appeal by leave is directed to impeach the order passed in revision by a learned Single Judge of the High Court on 4-6-1980. By this order the learned Judge felt advised to discharge the vacation order of the ex parte proceedings recorded against the appellants by the learned . District Judge, Muzaffarabad.
2. The controversy has arisen in the following way : Kb. Muhammad Ishaque, respondent herein, by way of a civil suit before the District Judge, Muzaffarabad, claimed from the appellants (Habib Bank Ltd.) to this appeal an amount of Rs, 2,73,000 as damages. During the pendency of the suit, besides others, the following orders, relevant to the controversy here, were passed by the Court :- {{URDU TEXT}}
3. The examination of the above-referred interim orders would show that the adjournment on 1-8- 1979 was granted as the respondent-plaintiff wanted to consult his counsel as to whether it would be advisable for him to admit or not some documents on file on which reliance was placed by the respondent and for this purpose the case was adjourned to 2-8-1979. On 2-8-1979, the absence of both the counsel for the parties hampered the proceedings resulting in another adjournment to 15- 8-1979, for proper orders. On this date, i,e,, 15-8-1979, the counsel for the respondent-plaintiff was absent while the counsel for the appellants-defendant was present and the case was again adjourned to 28-8-1979, for proper orders. On 28-8-1979 the ex parte proceedings were ordered against the appellants which were later on, on an application moved on 30-8-1979 by the appellant, discharged by the District Judge on 10.2-1980 on payment of Rs, 100 as costs.
4. This order was vacated by a learned Single Judge of the High Court in revision petition moved by the respondent on 4-6-1980. Hence this appeal by leave to assail the said order of the High Court.
5. On the above premises of facts in support of the appeal Mufti Muhammad Idrees, Advocate maintained :-
(1) that the ex parte order, made on 28-8-1979, was illegal as it was not a date of hearing and the matter was only fixed to know that in what way the plaintiff, after consulting his counsel, intended to proceed with the case. The order, therefore, passed by District Judge on 28-8-1979 directing ex parte proceedings against the petitioners, he claims, was entirely without jurisdiction and a nullity and was necessarily to be recalled and treated as non-existent as it violates the statutory provisions of the Code of Civil Procedure which only allows ex parte proceedings when the case is fixed for hearing ; violation whereof would render the proceedings coram non face :
(ii) that the learned Judge in the High Court fell in error to hold that 28-8-1979 was a date of hearing. In fact that date Was meant to apprise the Court about the course of action which the respondent (plaintiff), after consulting his counsel, wanted to take in the case ;
(iii) that if it could be held that no ex parte proceedings could be taken on a date not fixed for "hearing" the result, it is contended would be that such an order would be treated to have been passed without jurisdiction and it would be said that it was perverse, illegal and passed in an irregular exercise of jurisdiction ; and
(iv) that the petitioners-defendants can join the proceedings in presence of ex pane order and, therefore, the presence of ex parte order cannot be of any help to the respondent.
6. Mr. B. A. Farooqi, the learned counsel for the respondent, contested the submissions made by Mufti Muhammad Idrees and maintained that 28-8-1979 was the date of hearing as it was meant for examination of the plaintiff to know as to whether he admits the documents or not 7 He further submitted that this date }vas also meant for framing of the additional issues and the ex parte proceedings, therefore, were rightly ordered. He also submitted that without showing sufficient cause of absence on 28-8-1979 the petitioners-defendants cannot join the proceedings.
7. On the subject, in the first instance, in C. P. C. We come across Order IX, rule 6. It says :- "6. (1) where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) if it is proved that the summons was duly served the Court may proceed ex parte.
(b) if it is not proved that summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.
(c) if 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 plaintiff's 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."
8. Discussing the scope of Order IX, rule 6 (1) of the C. P. C. The Courts are practically one to observe that it is confined to the first hearing in the suit and does not, per se, apply to the subsequent hearings. The provisions under this order do not apply to a case (as the case is before us) in which plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit.
9. This now brings us to the relevant provision touching the controversy. Order XVII, rule 2, C. P. C., which reads : "2. Procedure if parties fail to appear on day fixed.-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." applies to the issue before us. This rule deals with the future adjournments. Therefore, if the defendant fails to appear on an adjourned hearing Order XVII, rule 2 would apply. If the defendant, therefore, does not appear at the adjourned hearing irrespective of whether or not he appeared at the first hearing Order XVII, rule 2 applies and the Court is given widest possible discretion either to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it think fit". A reference to Order XVII ; rule 2 will show that the action contemplated by the rule can only be taken where on any day to which the hearing of the suit is adjourned and the parties or any one of them fail to appear. However, the word 'hearing' employed under Order IX, rule 6, C. P. C.
Carries synonymous meaning with the word 'hearing' employed in Order XVII, rule 2, C. P. C. Which is meant for subsequent hearings.
10. It admits of no doubt that there is a distinction between the date fixed for hearing and any other date fixed in the case. This will stand fully administered if we refer to Order XVII, rule 3, C. P. C.
Wherein otter situations of default have been enumerated. The High Court's judgment is mainly based on a case titled Muhammad Din v. Zabardast Khan and another and some other case-law referred to by the learned Judge. All the cases conclude that a defendant is to be proceeded ex parte when he absents himself on a date of hearing. There is no quarrel with this proposition but in the case referred to above the real question appears to be different which is propounded in this case by the learned Judge. It was never held in that case that even where some interlocutory matter is to be resolved the absence of the defendant on that date would justify ex parte proceedings against him. In Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others dealing with an identical issue it has been observed :- "The true import of the expression "hearing of the suit" has been elaborately discussed in Ghulam Farid Muhammad Latif v. The Central Bank of India Ltd. Lahore. A perusal of this authority and the cases cited therein reveals that in cases where it was not intended that there should be a hearing of the suit in the ordinary sense of the word i. e. At which either evidence is to be taken or arguments heard or questions relating to the determination of the suit considered, but is merely for some interlocutory matter to be decided between the parties as to the future conduct of the suit, the provisions of Order IX, rule 8 C. P. C. Are not attracted. In the present case, as already noticed above, the plaintiff was required to file his replication. The date fixed in this connection namely 27- 1-1962 cannot be regarded as a date fixed for the "hearing of the suit". Con-sequently the absence of the plaintiffs on this date could not result in the dismissal of their suit and an order of dismissal for default in the above circumstances is an order without jurisdiction and a nullity and can be set aside by an application under section 151, C. P. C."
11. Therefore, on behalf of the appellants the principal argument advanced to the effect that the date 28-8-1979 was not fixed for hearing of the case but it was merely meant for the purpose of informing the Court about the action to be taken by the plaintiff carries substance. This date cannot E be said to be a date of hearing. At the most it would be said that on this date the future action to be taken by the plaintiff in the case after consulting his counsel was to be determined.
The learned single Judge in the High Court fell in error to say that "the present case was fixed for examination of the plaintiff in order to admit the documents and framing of additional issue". In.
Fact 28-8-1979 was the date when the plaintiff was required to inform the Court about the future action intended to be taken by him. As held in AIR 19 52 M B 8 where an adjournment was not for recording evidence or hearing arguments or for decision of a question relating to the suit, enabling the Judge to finally come to adjudication and the case was fixed for some interlocutory matters in respect of the future conduct of the suit, the absence of the parties on that date would not necessitate an action under Order XVII, rule 2, C. P. C. In that case the date on which ex parte order was passed was the date fixed for payment of Guardian-fee and it was held that the date for1 2 payment of Guardian fee was not a date of hearing. In fact the date of hearing is the date when the Court has to apply its mind to the relevant claims of the parties.
12. On 28-8-1979 no investigation of any matter germane to the suit was to be performed by the trial Court. The only order which could possibly' be visualised was an order of interlocutory nature.
We may note here that on, at least, two earlier dates, namely, 2-8-1979 and 15-8-1979 Court had adjourned the case for 'proper orders'. The proper orders contemplated under these orders has nexus to earlier order passed on 1-8-1979 which only speaks of consultation by the plaintiff of his counsel for an action for the future progress of the case. This can hardly be said to be a date of hearing.
13. The word "hearing" it may be observed has been defined nowhere in the C. P. C. As defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefor; means taking of evidence or consideration of question relating to suit enabling the Judge to 11 come to a final adjudication and not consideration of merely an interlocutory matter. Where the wordings of the order indicate (as the ease here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity.
14. It is also to be noted that when the defendant files a written statement but does not appear on the date fixed for the hearing and in consequence ex parte proceedings are ordered against him he cannot be precluded from appearing at a later stage of the suit which it is still pending; and he should be allowed to come in at the stage to which the suit has reached. So was held in Ghulam Muhammad and others v. Mst. Irshad Begum and others Dealing with the point it is laid down in this case :-- "The question, therefore, is that if the case is adjourned by the Court by virtue of its power under Order XVII, rules 1 and 2 default in appearance is made by the defendant, how the proceedings in the suit are to be conducted from that stage ? For that purpose rule 2 of Order XVII is in point, which gives power to the Court 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. Under rule 3 of the same order, however, where any party to a suit to whom time has been allowed fails to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, the Court is empowered to proceed to decide the suit forthwith. Therefore, by virtue of Order XVII, rule 2, in the case of non-appearance of the defendant on an adjourned hearing the Court falls back on the procedure provided in Order IX, with the result that absence on an adjourned hearing may also entail recording of absence Order IX, rule 6 (1) (a), but that does not necessarily mean that an ex parte order has been passed by the Court in the nature of an ex parte decree or order which has been contemplated under other provisions of the code, nor does it mean that for all future proceeding in the suit, the absentee defendant is to be considered to be dead. Therefore, a party cannot be stopped from participating simply because of its non-appearance on the first or some adjourned hearing."
Therefore, even if the ex parte proceedings remain intact the appellant-defendants can join the proceedings and we cannot subscribe to the argument of Mr. B. A. Farooqi that even for joining the proceedings in presence of the ex parte order sufficient cause for absence is to be established, Holding that the ex parte order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date when default of` appearance was made, we allow this appeal and setting aside the order of L the High Court return the suit to the trial Court for disposal according to law. The parties are directed to appear in the trial Court on 5-7-1983 to receive instruction for further proceedings. Costs of the appeal will be borne by the parties concerned. PLD 1972 Azad J& K 7 PLD 1970 Lab. 4123 1 2