ABDUL QADEER CHAUDHRY, J: --This appeal by leave of the Court is directed against the judgment of the Baluchistan High Court dated 23-5-1988.
2. The facts, in brief, are that the respondent brought a suit in the Court of Qazi claiming that he is in possession of the disputed land and seeking a decree for declaration of title and possession. The appellant after service of summons appeared in the Court and obtained time for filing written statement. On 24-3-1987 when the case was called, the appellant was absent therefore ex parte order was passed against the appellant and the case was adjourned to 5-4-1987 for recording the evidence of plaintiff. On that day, an application was presented on behalf of the appellant seeking adjournment which was allowed. On 5-4-1987, the respondent's attorney was present but the appellant was absent, therefore, an ex parte order was passed against him and the case was adjourned to 11-4-1988 for evidence. The respondent's evidence was recorded and the suit was decreed on 15-4-1987 by the Qazi. This judgment and decree of the Court were challenged in appeal before Majlis-i-Shoora, Khuzdar. The appeal was barred by time but the delay was condoned by the Majlis-e-Shoora. However, it dismissed the appeal on the ground that it had no jurisdiction to examine the validity of the ex parte decree for the reasons that no application for setting aside the ex parte decree as provided under Order IX, Rule 13, C.P.C., was made. The appellant challenged these orders in a Revision Petition before the High Court which was dismissed by a learned Judge in Chambers.
3. The translations of Court's orders dated 24-3-1987 and 5-4-1987 are re--produced below:---- "24-3-1987: Came up today in the presence of plaintiff's attorney Taj Muhammad. Defendant is absent. Case was fixed today for filing of written statement but in spite of seeking time written statement has not been filed by defendant who is absent. Therefore ex parte proceedings are drawn against him and the case is fixed for 5-4-1987 for the evidence of plaintiff. Date slip given over to plaintiff's attorney.
In the closing hours an application on defendant's behalf has been presented by petitioner's son seeking adjournment which is allowed. Date slip was given to him.
5-4-1987: Came up today in presence of plaintiff's attorney Taj Muhammad and his counsel Qazi Abdul Hameed. Defendant is absent in spite of the fact that date slip was given to his son.
Therefore ex parte proceedings are ordered against him. The case is adjourned for plaintiff's evidence on 11-4-1988:"
4. The case of the appellant is that he was convicted under section 325, P.P.C. On 22-3-1987 and sentenced to two years' imprisonment'. According to the appellant, his case was fixed for pronouncement of judgment on 22-3-1987. He had given oral instructions to a Petition Writer for drafting his written statement which was prepared by him and was presented by his son on 24-3- 1987. The Court m spite of the knowledge with regard to the detention of the appellant did not direct the Jail authorities to produce him in Court on 5-4-1987. It is an admitted feature of the case that the appellant was convicted on a criminal charge and his absence was not wilful. It was beyond his control. No process was issued to the appellant for 5-4-1987, as such ex parte proceedings could not be taken against him. The appearance of the minor son of the appellant was not appearance on behalf of the appellant. He was not a constituted attorney of the appellant.
He had only informed about a fact, when it came to the notice of the Court that the appellant had been detained on a criminal charge, it was obligatory on the Court to have issued a process to the appellant. Thus, the Qazi had exercised the jurisdiction in proceeding ex parte illegally and against the provisions of law. The Majlis-e-Shoora and the High Court have not taken into consideration these facts. The ex parte decree, in the circumstances of the case, could be Set aside in appeal by the appellate Court. The High Court has not adverted to this aspect of the case that no process was issued to the appellant, therefore, ex-parte proceedings could not have been drawn against him.
5. We accept this appeal, set aside all the orders impugned in this appeal and remand the case to the Qazi for trial in accordance with law.