1. ' This Revision Application challenges the Judgment and decree of the Vth Civil Judge, First Class, Karachi dated 25th April, 1972 and the Judgment and decree of the IInd Additional District Judge, Karachi dated 25th January, 1973 in Civil Miscellaneous. Appeal No, 95 of 1972.
2. ' It may be stated at the very outset that this Revision Application was posted for regular hearing on 11th May, 1982 when Mr. G. Raymond for the applicant was present, but Mr. Liaquat Merchant, the learned Advocate for the respondent was absent. A chance was given and the matter adjourned to 18th May, 1982. However, even on the adjourned date Mr. Liaquat Merchant chose to remain absent and, therefore, I have had only the benefit of arguments of Mr. G. Raymond, the learned counsel for the applicant.
3. ' The facts of the case are as under :- The respondent Bank filed Suit claiming Rs, 11,943.02 from the applicant who has account with the Idgah Branch of the Bank. On or about 23rd May, 1968, the respondent at the request of the applicant granted to him loan/overdraft amounting to Rs, 11,200 against the security inter alia of the applicant's export bill drawn on Messrs M. A. Baghdadi of Kuwait for Rs, 16,000. Applicant by an instrument dated 23rd May, 1968 hypothecated the said bill to the respondent as security for repayment of the said amount of Rs, 11,200 and in consideration for the repayment of the aforesaid amount the applicant executed a promissory note of the same date in favour of the respondent bank for Rs, 11,200 payable on demand together with interest thereon at the rate of 8 per cent per annum with monthly rests.
4. ' After adding interest and charges and deducting the amounts deposited by the applicant from time to time for repayment of the said loan/overdraft an amount of Rs, 11,943.02 being Rs, 11,200 in the loan account and Rs, 7,043.02 in the overdraft account was due and payable by the applicant to the respondent bank according to the claim of the bank. The respondent bank therefore filed suit for Rs, 11,943/02 plus interest thereon at the rate aforementioned from the date of suit till payment or realization thereof.
5. ' The applicant was served with summons in the aforesaid suit for 6th May, 1970 on which date the applicant's Advocate Mr. Salahuddin Malik appeared and filed his Power on behalf of the applicant.
6. The Court was vacant on the aforesaid date, that is 6th May, 1970 and remained vacant till 25th September, 1970 when Mr. Mansoor Ahmed Shaikh, VIlth Civil Judge, First Class was appointed as Link Judge of the Court of the Vth Civil Judge, First Class, Karachi.
7. ' It is the case of the applicant that neither he nor his Advocate Mr. Salahuddin Malik was aware of or had received any intimation about Mr. Mansoor Ahmed F. Shaikh being appointed Link Judge in respect of Court of Vth Civil Judge, First Class, Karachi on 25th September, 1970. It is the case of the applicant that he being an old patient of rhemutism and asthma had on medical advice proceeded to Multan for change of climate and as such it was not possible for him to attend the Court on 25th September, 1970, 13th October, 1970 and 20th October, 1970 on which dates the suit was placed before Mr. Mansoor Ahmed Shaikh as Link Judge. It was further the case of the applicant that while he was at Multan he was in communication with his Advocate with regard to the suit and bad been informed that the Court of Vth Civil Judge, First Class, Karachi was vacant and hence no progress could be made in the suit. Further when the applicant returned to Karachi on 17th March, 1971 he was informed by Mr. Zahir Ahmed Khan employed as Manager of the respondent bank at Karachi that the suit had been decreed ex parte on 20th October, 1970. He therefore filed applic ation on 28th April, 1971 under Order IX, rule 13 read with 151, C. P. C. In the suit for setting aside the ex parte decree on the ground that he had proceeded to Multan for change of climate and had not therefore attended the Court on 25th September, 1970, 13th October, 1970 and 20th October, 1970 on which dates the suit was placed before Mr. Mansoor Ahmed F. Shaikh, Civil Judge. The application was however dismissed on 25th April, 1972 by the Court of the Vth Civil Judge, First Class, Karachi as by that date a judicial officer had been appointed to the said Court.
8. The applicant then preferred an appeal against the aforesaid order dated 25th April, 1972 to the Court of the District Judge, Karachi being Civil Miscellaneous Appeal No, 95 of 1972. Notice of the said appeal was issued to the respondent but the appeal was dismissed by the IInd Additional District Judge, Karachi on 25th January, 1973, and hence this Revision Application against the orders of Vth Civil Judge, First Class dated 25th April, 1972 and of the District Judge, Karachi dated 25th January, 1973 has been filed in this Court.
9. ' The impugned judgments and decrees of the Vth Civil Judge, First Class dated 25th April, 1972 and of the Ilnd Additional District Judge dated 25th January, 1973 in the appeal have been assailed in the Revision Application on the following grounds :-
(1) That the order fixing the suit on 25th September, 1979 for filing the written statement and all orders passed earlier commencing on 6th May, 1970 upto and including 15th August, 1970 are not legal orders, since the same could not have been passed or signed by the Bench Clerk under the Sind Civil Court Rules.
(2) That since the Court of the Vth Senior Civil Judge was lying vacant, it was for the District Judge to act as required under section 23 of the West Pakistan Civil Courts Ordinance, 1962 for empowering any other Judge to perform the duties of the Judge of the vacant Court, but as is obvious from the order sheets of the case the needful was not done till 25th September, 1970.
(3) That the VlIth Civil Judge, First Class as Link Judge was not competent to proceed with the suit on 25th September, 1970 or to order ex parte proceedings against the applicant without issuing notice that the suit would proceed before him.
(4) That since the Bench Clerk of the Vth Civil Judge, First Class, Karachi was not authorised or empowered to fix the aforesaid suit for hearing on 25th September, 1970 and further as no notice had been issued that the suit would proceed before the Link Judge there was sufficient cause for non-appearance of the applicant on 25th September, 1970 and thereafter, and there was no default committed by the applicant in not filing his written statement since no legal orders had been passed for filing the same. ,
(5) That the applicant had sufficient cause for non-attendance on 25th September, 1970 and thereafter as he was ill and was medically advised to leave Karachi, and further, that he was in correspondence with his Advocate with regard to the suit, and finally.
(6) That the learned Judge failed to consider that there was no evidence on which the aforesaid suit could be decreed.
10. ' With regard to ground Nos. 1, 2, 3 and 4, as is apparent from the order sheet of the Civil Suit No, 2218 of 1969 the plaint was presented on Ist November. 1969 and was ordered to be admitted and registered by the Vth Civil Judge, First Class, Karachi on the very day. The learned Vth Civil Judge, First Class further directed the issue of summons to defendants on payment of costs and fixed the hearing on 7th January, 1970 and that the further. Diaries of the dates 7th January, 1970, 10th February, 1970, 16th March, 1970, 7th April, 1970, 6th May, 1970. 6th July, 1970, 20th July, 1970, 30th July, 1970 and 15th August, 1970 were signed by the Bench Clerk and not the Judge. Section 23 of the Civil Courts Ordinance, 1962 (11 of 1962) provides for temporary vacancy of office of Civil Judge and gives the power to the District Judge to empower any other Civil Judge of the District to perform the duties of the Judge of the vacant Civil Court either at the place of such Court or of his own Court. It is further obvious from a perusal of the diaries of the suit that the same were signed by the Link Judge only on 25th September, 1970 on which date it was stated in the diary that the defendant had failed to file written statement and therefore is made ex parte. The matter was fixed for ex parte proof on 13th October, 1970. It is therefore apparent that the District Judge, Karachi passed orders appointing a Link Judge who functioned as such only from 25th September, 1970.
11. ' The Sind Civil Court Rules in rule 28 inter alia provide that the order sheet shall contain all orders passed by the Court at any hearing and shall be written in English by the Judge in his own hand provided that formal orders may be written by the Chief Magisterial Officer or any other officer attending the Court, but they shall be signed by Judge. Incidentally it may be pointed out that the aferesaid rules so far as they are inconsistent with or contrary to the rules contained in the First B Schedule to the Civil Procedure Code shall be deemed to prevail. Rue 15 of the aforesaid Rules provides that dates shall be fixed in each Court by an order in writing of the Judge, There can therefore be no doubt about the fact that the Bench Clerk had no authority to pass any orders or to even fix the dates or hearing. It is therefore apparent that the Bench Clerk had no authority to hold that the summons was duly served or to require the defendant to file written statement. The learned Link Judge therefore erred in passing the order in the order sheet dated 25th September, 1970 that the defendant had failed to file written statement and to order ex parte proceedings against him.
12. ' The passing of ex parte orders are envisaged under Order IX, rule 6 and Order XVII, rule 2, C. P. C.
13. Whereas Order IX, rule 6 relates to date of hearing for which summons have been issued, Order XVII rule 2 relates to date of adjourned hearing after service of summons. In Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies, a Supreme Court decision it was inter alia observed as under :- "On the other hand a reference to Order IX, rules 6 and 8 and Order XVII, rule 2 will show that the parties to a suit are penalised for their absence only on the date fixed for hearing or the date to which the hearing is adjourned. Order IX, relates to the date of hearing for which a summons has been issued to the defendant while Order XVII, relates to adjourned hearing. As rule 1 of Order IX, will1 show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, rule 2 provides that if a party fails to appear on "the day to which the hearing of the suit is adjourned" the Court may proceed to pass orders in accordance with Order IX. Order IX, rule 6 and Order XVII, rule 2 being the only provisions authorising ex parte proceedings against a defendant it is clear that ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course "adjourned" means adjourned by the Court."
14. ' As already stated, the Bench Clerk had no authority to say that the summons issued were duly served or to require the defendant to file written statement and since the date 25th September, 1970 was neither the date mentioned in the summons nor the adjourned date, as the suit was not adjourned to that date by order of the Court, the question of the passing of ex parte order did not arise, and therefore the learned Link Judge had no authority under the circumstances to order ex parte proceedings against the defendant for appearance on the date of hearing on 25th September, 1970. Consequently, the further orders passed decreeing ex parte the suit in favour of the respondent on 20th October, 1970 cannot be supported. In the view of the matter, as stated, the impugned orders of the learned Vth Senior Civil Judge on the application of the applicant for setting aside the ex parte Judgment and decree dated 25th April, 1972 and the impugned order of the learned IInd Additional District Judge, Karachi dated 25th January, 1973 in Civil Miscellaneous Appeal No, 95 of 1972 also cannot be sustained.
15. ' As already stated, since the Bench Clerk had no authority to adjourn the case or fix any dates and the illegal orders fixing date of hearing were due to the delay in the passing of orders by the District Judge with regard to the Link Judge doing the work of the vacant Court, the applicant should not have been penalised due to the aforesaid faults. In Rahim Bux and another v. Gul Muhammad and 2 others, a decision of the Lahore High Court in a case where dated 30th September, 1963 was fixed for filing written statement of defendant, but due to mistake on the part of the Reader case instead was taken up on 26th July, 1963 and dismissed for non-appearance of plaintiff, it was held that acts of Courts should not prejudice any party and order of dismissal passed on 26th July, 1963 was void ab initio. It is apparent that on 25th September, 1970 there could be no effective hearing of the case as all the previous orders by the Bench Clerk were null and void. In Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another a decision of the Supreme Court the question as to what is meant by the expression "called on for hearing" in the context in which it is used in Order IV, rule 17 came up for consideration, the expression as used in Order IX. Rule 8 and Order XVII, rule 2, as interpreted in Shaikh Abdul Rehman v. Shivlal Sarup and others was quoted with approval as under :--- "The word 'hearing' has not been defined in the Code but it is obvious that it is use in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Order IX, rule 1, read with rule 3, it would appear that after the institution of the suit when the summons is issued by the defendants calling upon them to appear upon a particular date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, tendering of documents and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case, the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court."2 3 4 ' After considering the observations in Shaikh Abdur Rehman v. Shivlal Sarup and others quoted above, it was observed by the Supreme Court that during the intermediate stage in a suit the word 'hearing' is used in the context of those particular matters as mentioned in the Patna High Court decision and not for the hearing of the case as such.
16. ' In Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another (1), a decision of this Court the word 'hearing' in Order XVII, rule 2, C. P. C. Was considered with regard to its meaning and it was observed that "the prerequisite for exercise of jurisdiction under Order XVII, rule 2 is that the case should have been fixed for hearing and it is adjourned to any other date. The word 'hearing' means the taking of evidence and hearing for arguments or considering questions which relate to the suit which would enable the Court to finally come to an adjudication upon it, and not the consideration of interlocutory matters. It therefore follows that Order XVII, rule 2, C. P. C. Will apply when the day to which a suit has been adjourned is a date fixed for the hearing of the D trial of the case." In the decision referred to above therefore it was held that Order XVII; rule 2, C. P. C. Would apply only when the day to which a suit has been adjourned is the date fixed for hearing of the trial of the case.
17. ' The very order directing ex parte proceedings being for the reasons stated illegal, the learned Additional District Judge who, under the circumstances did not set aside the same, but, on the contrary, the appeal filed on behalf of the applicant was dismissed without going into the basic legal points involved. In Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies a decision of the Supreme Court already referred to it was under similar circumstances observed as under :- "We would therefore ourselves exercise the jurisdiction which he should have exercised and would set aside the order of 22nd April, 1960 and the decree based upon it.
18. ' In Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another, a decision of the Supreme Court the question with regard to the scope of revisional powers of the High Court, came up for consideration and it was observed as under :- "The scope of the revisional powers of the High Court had circumscribed all conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as, firstly, "its discretionary jurisdiction may be in effect suo motu", and secondly, the Court "may make such order in the case as it thinks fit."
19. ' In Industrial Sales and Services, Karachi and another v. Archifar Opal Laboratories Ltd. Karachi it was inter alia observed as under :- improper improper exercise of discretion particularly in failing to set aside an improper and illegal order cannot be held to be immune from interference by an appellate authority. In somewhat similar circumstances their Lordships of the Supreme Court discussed the question of interference with an order passed by a Court in exercise of its discretion."
20. ' The reference was to the case of Muhammad Swaleh and another v. The United Grain and Fodder Agencies, which has already been referred to above. Mr. G. Raymond the learned counsel for the applicant, has also referred to the decision in Messrs S. M. Rafi Allah Walla v. Kaiser (Pakistan)
21. Managing Agency Co. Ltd., and three others wherein negligence by a party was differentiated from gross negligence, and it was observed as under:- "This means that the defendants acted negligently but not with gross negligence and there is authority for the proposition that a party should not be penalised unless he acts with gross negligence."
22. ' With regard to ground No, 5, in the circumstances stated, the non-attendance of the applicant on 25th September, 1970 and thereafter could be considered too he due to sufficient cause.5 6 7 ' Finally, with regard to ground No, 6, it is apparent that it was the case of the respondent bank that on 23rd May, 1968 the applicant had been granted Loan/overdraft facility against Security inter alia of the applicant's export bill drawn on Messrs M. A. Baghdadi of Kuwait for Rs, 16,000. The aforesaid bill had been hypothecated with the respondent bank but there is nothing in the impugned Judgment to show as to what had happened to it. In East and West Steamship Co. v. Queens Insurance Co., a decision of the Supreme Court it was inter alia observed that it was duty of the Court to give decision in an ex parte decree in accordance with facts ascertained with care in the absence of contesting party. It was observed as under :- "Even though the defendant company had failed to appear to contest the suit, it was nevertheless the duty of the Insurance Company to establish that the loss had in fact taken place, that the loss was evaluated in terms of money, and that this had been done in such manner as to inspire confidence. There can be no doubt of the Court to ensure even when proceeding ex parte that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party."
23. ' In the impugned judgment of the learned Civil Judge the hypothecated export bill drawn on Messers M. A. Baghdadi of Kuwait for Rs, 16,000 has not been accounted for, although there is mention that the same had been hypothecated with the respondent bank as security for repayment of the amount of loan. The impugned judgments, therefore, do not effectively adjudicate on the rights of the parties and for that reason too cannot be sustained. I, therefore, allow the Revision Application and set aside the Judgment and decree of the IInd Additional District Judge, Karachi dated 25th January, 1973 in Civil Miscellaneous Appeal No, 95 of 1972 and direct that the suit be decided after following proper legal procedure and giving opportunity to the applicant to defend the same as required by the law. However, no orders are being passed as to costs. PLD 1964 SC 97 PLD 1971 Lah. 746 PLD 1975 SC 678 AIR 1922 Patna 252 PLD 1982 Kar. 355 PLD 1979 Kar. 418 PLD 1971 Kar. 756 PLD 1963 SC 663