1. ' The respondents filed a suit for declaration, injunction, possession and accounts, on the allegations that they are owners of agricultural land details of which were given in the plaint, which was leased to the appellant for a period of 5 years from the year 1964-65 to 1968-69, under an agreement dated 3rd July, 1964. In response to the summons issued to the appellant he appeared in Court on 21st November, 1968 and applied for adjournment which was granted on payment of cost and the matter was fixed on 16th December, 1968 for filing written statement. On 16th December, 1968 the appellant remained absent and therefore, the learned Civil Judge ordered to proceed ex parte and fixed the matter on 19th December, 19o8 for recording ex parte evidence. On 19th December, 1968 the appellant and respondent were present when Advocate for the appellant filed power and requested for adjournment. While granting adjournment the Court ordered as follows : - "To come up on 13th January, 1969 for written statement and objections."
2. ' On 13th January, 1969 the appellant was present and it seems that the respondent filed an application under Order XXXIX, rule 3, C. P. C. Copy of which was supplied to the appellant and he was ordered to file objections on the next date of hearing. The learned trial Court however passed the following order "Present counsel for the plaintiff. Defendant present in person. Copy of application under Order XXX, rule 3, C. P. C. Given to the defendant. He is to file objection on next date of hearing The case was ordered to proceed ex parte and was fixed for ex parte proof on 19th December, 1968. In the diary of 19th December, 1968 it was inadvertently written that it was being adjourned to 12th January, 1969 for W. S. In fact it is for ex parte proof as ex parte order, dated 16th December, 1969 does not been set aside so for not there is any application on record to that effect. Hence the diary dated 19th December, 1968 stands cancelled accordingly. Ex parte evidence of plaintiff recorded. Side closed by the counsel for plaintiff. Arguments heard. Defendant has made application for adjournment.
3. Rejected for judgment and objections on 14th January, 1969.
4. ' On 14th January, 1969 Advocates for the parties were present. The appellant filed objections to application under Order XXXIX, rule 3 and also submitted an application under Order IX, rule 7, C. P.
5. C. The Court, therefore, adjourned the matter for hearing of both the applications on 15th January, 1969. On that date the learned trial Court observed that it had no pecuniary jurisdiction in the matter and, therefore, keeping both the applications pending sent the file to the learned District Judge, Sukkur for transfer to a Court of competent jurisdiction and parties were directed to appear before the District Judge, Sukkur on 31st January, 1969. It seems that the matter was transferred to the Civil Judge IInd Class, Rohri who framed issues on application under Order IX, rule 7, dismissed it by his order, dated 11th April, 1969, proceeded with the suit on the basis of the ex parte evidence that had been recorded earlier and decreed the suit by his judgment, dated 30th April, 1969. The appellant, therefore, filed an appeal against this judgment which was dismissed by the learned Additional District Judge on 24th September, 1970. The First Appellate Court by the impugned judgment dismissed the appeal solely on the ground that as the appellant did not file appeal against the order declaring him ex parte the appeal against the decree passed in the suit is liable to be dismissed.
6. ' Mr. Abdul Matin the learned counsel for the appellant has contended that the impugned orders of both the Courts are illegal and void. It is an admitted position that on 15th January, 1969 the Civil Judge 1st Class held that he had no jurisdiction in the matter and sent the plaint to the District Judge for transfer to a Court of competent jurisdiction. Accordingly the suit was transferred to the Civil Judge IInd Class, Rohri, who instead of proceeding with the case afresh started on the basis of proceedings recorded by the Court which had no jurisdiction. The learned counsel for the appellant has contended that as the earlier Court did not have the jurisdiction to try the suit all orders including the ex parte order passed against the appellant were illegal, void and without jurisdiction, and, therefore, any subsequent order or decree could not be passed on the basis of that ex parte order and evidence.
7. In the present case the remittance of the plaint to the District Judge and its transfer to the Civil Judge IInd Class, Rohri cannot save or validate the proceeding before the Civil Judge, Ghotki for the simple reason that before a valid order of transfer can be passed the suit must have been pending in a Court competent to try it. Reference can be made to Faiz Muhammad v. Riaz Husain (1). Further in Mst. Razia Shafi v. Maj. S.M. Malik (2) the Supreme Court approved the view that "an application under section 24, C. P. C. For transfer of the case will be competent only if the Court, in which the suit is instituted, is competent to try it and that competency for this purpose included not only pecuniary competency but also territorial competency".
8. In view of this legal position the original Court could not entertain the suit nor could it be legally transferred to Civil Judge, Rohri. Therefore, all
(1) PLD 1957 Lah. 689 (2) PLD 1971 SC 247 ' the proceedings taken by both the Courts were illegal and void mainly so because the transferee Court did not start the proceeding afresh but started] it from the point where the original Court had left it.
9. ' The learned counsel for the appellant has relied upon Amir Chand v. Butt Shah and others (1) in which foilowing observation was made : "that the order of transfer can only be made from one competent Court to another, but where Court in which the suit has been instituted has no jurisdiction, the proper course is to return the plaint and not to transfer it."
10. The learned counsel has also referred to Hava Bai v. Abdul Shakoor (2) where it was held that where the plaint after being returned is presented to a Court of proper jurisdiction it is to be considered fresh proceedings for all intents and purposes. The proper course was to return the plaint for pre-sensation to the proper Court and after it would have been so presented the Court should have proceeded with the matter afresh. Therefore, the order c passed by the trial Court decreeing the suit was illegal. The learned appellate Court did not take into consideration all these facts and erroneously proceeded on the ground that as appeal had not been filed against the order declaring the appellant ex parte the appeal filed against the final decree was not competent.
11. The appellant without filing an appeal against the order declaring him ex parte was competent to assail it in the appeal filed against the judgment and decree. The appellant's application under Order IX, rule 7, C.P.C. Was dismissed mainly on the ground that he did not produce the "Hakim"
12. (physician) who had treated him. The appellant had produced other witnesses to establish that he was suffering from kidney trouble and was taken to the "Hakim" and, therefore, he could not attend the Court on 16th December, 1968. The learned trial Court has referred to the evidence of one witness of the appellant who stated that on 15th December, 1968 the appellant was taken for treatment and on the same day he was alright.
13. The appellant had suffered kidney pain and was taken to the physician. On medication the pain subsided the same day. From these facts it cannot be presumed that he had recovered for all practical purpose. The object of the Code, as far as the circumstances permit, is to decide the matters on merits rather than to pass ex parte judgment. The provision of Order IX, rule 7, C.P.C.
14. Should be construed liberally to avoid hardship but it cannot be made a tool for condoning negligent and wilful defaults. In my opinion the appellant had shown good cause for non- appearance on 16th December, 1968.
15. ' For these reasons the appeal was allowed by a short order, dated 3rd February, 1983.
(1) AIR 1930 Lah. 195 (2) PLD 1981 Kar. 277