RASAAL HASAN SYED, J. This Constitutional Petition arises from orders dated 03.5.2021 and 28.6.2021 of the courts below in terms whereof petitioner's application for setting aside of ex parte proceeding order dated 17.10.2019 was dismissed which order was also affirmed in appeal.
2. Respondents Nos.1 to 5 instituted a suit for declaration with permanent injunction against the petitioner, claiming ownership of two plots measuring 05 marlas each situated at Azam Garden, Hadbast Mauza Lakhodare, Tehsil Cantt., District Lahore and also for possession of 02 marlas out of 10 marlas that statedly were illegally occupied by the petitioner. Written statement dated 28.10.2016 was filed by the petitioner wherein facts were controverted and counter legal and factual objections were raised. At the stage when the suit was fixed for evidence of respondents the petitioner was proceeded against ex parte on 17.10.2019 and the case was adjourned for ex parte statement and proof of respondents. Petitioner moved an application dated 13.2.2020 for setting aside of ex parte proceedings order dated 17.10.2019, claiming that his absence was neither intentional nor willful but was on account of his serious illness and that interest of justice required that the case should be decided on merits rather than on technicalities which application was contested. Vide order dated 03.5.2021 the petitioner's application for setting aside of ex parte proceedings order was dismissed by the learned Civil Judge, observing that the same was not within time and that there was no sufficient ground for setting aside of the ex parte proceedings order. Petitioner filed a revision petition which too was dismissed by the learned Addl. District Judge, Lahore vide order dated 28.6.2021.
3. Learned counsel for the petitioner submitted that the orders of courts below were based on mere technicalities, non-appearance of petitioner was neither intentional nor deliberate and that issues having been framed, the proper course was to allow the parties to produce evidence so as to render a decision on merits rather than giving decision ex parte. Further stated that in any case the petitioner having filed an application for setting aside of the ex parte proceedings order on 13.2.2020, he could legally join the proceedings from the stage without seeking annulment of the ex parte proceedings order as no meaningful proceedings were recorded in his absence. Contrarily, the respondents' learned counsel opposed the petition and submitted that there were no sufficient reasons for setting aside of ex parte proceedings order and that the only objective of non- appearance was to delay the recording of evidence and that the petition was not filed within time and was, therefore, rightly declined by the courts below.
4. Perusal of the impugned orders shows that the learned courts below dismissed the application on the ground of limitation as also the absence of "sufficient cause" for setting aside of the ex parte proceedings order. In the perception of the courts below the application could have been filed within 30 days from the date of ex parte proceedings order. The view taken by the courts below in the matter of limitation is not based on correct reading of the law. In fact, neither Article 163 nor Article 164 of Limitation Act, 1908 were attracted as these provisions applied to either application for restoration of suit or for setting aside of ex parte decree and did not cover an application for setting aside of ex parte proceedings order. There being no specific article providing for the filing of such application it would be regulated by the residuary Article 181 of the Act ibid. which provides for a limitation period of 03 years from the date of accrual of right to sue. Reference can be made to the cases "Shah Nawaz v. Abdul Razi and others" (1989 MLD 2173), "Wali Muhammad v. Hakeem Muhammad Khan and 2 others" (1993 MLD 1101) and "Faridud Din Masood v. Air Marshal (Rid.)
Muhammad Asghar Khan and 5 others" (1993 MLD 227) wherein it was observed that application under Order IX, Rule 7; C.P.C. could be filed within 03 years under Article 181 of Act ibid. Ex parte proceedings order had been passed on 17.10.2019; application for setting aside filed on 13.2.2020 was, therefore, well within time and could not be declined on the premise of limitation. The view taken by the courts below in this context could not, as such, sustain.
5. As regarding "sufficient reasons" for setting aside of the ex parte proceedings order, the courts below rightly observed that the petitioner did not prove the existence of any "good cause" to set aside the ex parte proceeding order. Plea taken was that the petitioner was seriously indisposed and could not appear in court on the fixed date. In law the petitioner was supposed to explain his own non-appearance as also the non-appearance of his counsel who used to represent him in the suit. If the petitioner was indisposed, his counsel could have appeared in the court and informed about the illness of petitioner. No explanation was given for the non-appearance of counsel, nor any medical certificate was produced to support the plea of illness or to prove the time during which he allegedly remained indisposed. In these circumstances, the courts below rightly observed that no "sufficient ground" was made out for setting aside the ex parte order.
6. There is yet another aspect of the matter which was overlooked by the trial court as well the revisional court. It was not a case in which an ex parte decree was passed against the petitioner; rather it was an instance in which ex parte proceedings order simpliciter had been made and the petitioner joined the proceedings at the stage of evidence by filing an application for setting aside of ex parte proceedings order against him. It has been consistently ruled that in case the defendant is proceeded against ex parte she/he cannot be deemed to be a dead person for future proceedings and in facts she/he can appear and join the proceedings from the stage at which she/he appeared in the suit. In case she/he does not apply for setting aside of ex parte proceeding order or if the ex parte proceeding order is not set aside, still she/he can join the proceedings from the stage of his appearance and if the case is at evidence stage, she/he could cross-examine the witnesses and produce own evidence in rebuttal.
7. In the instant case it appears that written statement has already come on record, the case was set up for respondents evidence at which stage the petitioner was proceeded against ex parte and the case was adjourned for the ex parte evidence of respondents. It has not been argued or shown that any ex parte evidence was recorded in the absence of the petitioner and if it is so the petitioner having joined the proceedings, may cross-examine the witnesses. Reference in this regard can be made to "Ghulam Muhammad and others v. Mst. Irshad Begum" (PLD 1964 Lah.
782) wherein it was observed to the effect that a party cannot be stopped from participating in proceedings simply because of its non-appearance on the first date or on such adjourned hearing and that Rule 7 of Order IX, C.P.C. is more of an enabling provision with respect to the setting aside of an ex parte proceedings and it does not mean that once the defendant has defaulted in appearance and does not appear even on the first adjourned hearing or some date earlier than that or does not assign "good cause" for previous non-appearance, defendant is debarred from appearing and participating in the proceedings for all further stages and all that the rule says is that if "good cause" is shown for non-appearance, the court may set aside an ex pane proceedings order upon such terms as the court directs and the defendant may be heard in answer to the suit as if the defendant had appeared on the date fixed for appearance. In other words under Rule 7 of Order IX, C.P.C. the absentee defendant cannot be relegated to the position she/he would have occupied had she/he appeared, unless "good cause" is demonstrated for previous non- appearance and if such defendant appears on the adjourned hearing the defendant cannot be stopped from participating in the proceedings simply because of default in appearance from the first or some other hearing. This case was also approved by the Supreme Court of Pakistan in "Police Department through Deputy Inspector General of Police and another v. Javaid Israr and 7 others" (1992 SCMR 1009) wherein it was re-affirmed that the defendant who was proceeded against ex parte if the defendant did not get the ex parte order set aside, this did not debar from appearing and participating the proceedings at subsequent stage.
8. In the given circumstances, the petitioner will not be entitled to get the proceedings which were recorded in his absence set aside as he could not show any "sufficient cause"; but he will be entitled to join the proceedings from the stage he had appeared in the suit for setting aside of ex parte proceedings order and shall be entitled to cross-examine the witnesses of the opposite side if their statements had not been recorded by then and will also be entitled to produce his own evidence in defense. Instant petition is allowed in the above terms.