1. ' Brief facts leading to the filing of present petition are, that respondent Ghulam Mohammad on 20- 3-1987 instituted civil suit for declaration, ownership and possession concerning land and Bund styled as Chukani-Sheap situated at Turbat. It was alleged that said property was purchased by him from Malik Dinar Khan Gichki during year 1965. Defendant Deputy Commissioner, Turbat submitted written statement, repudiating the claim in suit. Questions regarding maintainability of suit, deficiency of court-fee, and bar through res judicata were specifically raised by way of preliminary objections. It was asserted that land in dispute belonged to Government of Balochistan and respondent Ghulam Muhammad had absolutely no right or interest in the same. Subsequently none appeared on behalf of petitioner accordingly ex parte decree was passed by learned Qazi Turbat on 23-11-1988. Said judgment is reproduced below in extenso; {{URDU TEXT}} ' Petitioner submitted an application for setting aside ex parte decree towards December, 1989 which was dismissed as barred by time. Thereafter in January, 1990 Appeal No, 6 of 1990 was preferred before Majlis-e-Shoora, vlekran challenging ex parte decree and subsequent orders passed by trial Court. It may be seen that appeal. Was eventually dismissed by said Court an 26-3- 1990.
2. ' Thereafter present petition was moved challenging ex parte decree of learned Qazi Turbat, subsequent orders as well as judgment of Majlis-e-Shoora, dated 26-3-1990. At the outset, Mr. Khalid Malik learned counsel for respondent objected to the maintainability of petition on the ground of limitation. It was further contended that Appeal No,6/90, filed by petitioner before Majlis- eShoora, Mekran challenging ex parte decree and orders passed thereafter, were similarly barred by time, therefore, in the absence of application for condonation, Majlis-e-Shoora rightly dismissed the same. Raja M. Afsar Advocate-General replying the objections, argued that ex parte judgment and decree dated 23-11-1988 passed by learned Qazi Turbat lacking reasoning and reflected non- application of mind; thus same was ex facie void. According to him question of limitation had no relevancy as regards void orders. He further submitted that, trial Court while passing ex parte decree was obliged to dilate upon preliminary objections raised in the written statement besides making comments on the merits. However, failure to comply with basic legal requirements resulted in gross-miscarriage of justice.
3. In the instant case after drawing ex parte proceedings trial Court recorded statement of certain witnesses, namely Muhammad Younus, Muhammad Sharif, Behram, and Arz Muhammad. But while passing ex parte decree, no reference was made to any portion of evidence and judgment had been pronounced, against petitioner merely because they were absent. In the circumstances it has to be seen whether ex parte judgment and decree dated 23-11-1988 passed by trial Court is legal and sustainable. There has been consistent practice of the Courts to record ex parte evidence and after examining claim of plaintiff exercise its discretion judiciously, for granting ex parte decree. No doubt by virtue of amendment introduced through Ordinance XII of 1972 in Order IX Rule 6 (1) (a), C.P.C. Courts, can pass ex parte decree even without recording evidence because under the amended provisions now pleadings must be A filed on oath or solemn affirmation. Nevertheless superior Courts have always looked with disfavour, decrees granted against absentees, without consideration of available record or application of mind. Factually amended provisions do not provide any arbitrary authority or blatant discretion to award decrees by closed eyes. Even now, it is stressed that trial Courts, may record some evidence in support of plaintiff's claim and after conscious appraisal of the claim should decide the matter. Spirit of law clearly suggests that whenever trial Court does not find it necessary to examine evidence it must give reasons showing justification for deciding the claim without taking further proceedings. In order to ascertain legal requirement for passing ex parte decree under unamended provision as well as subsequent to amendment of 1972 reference to some of reported judgments would be necessary. Extracts from following judgments are reproduced:-
(i) East and West Steamship Co. v. Queensland Insurance Co. (PLD 1962 SC 663).
4. "There can be no doubt of the duty of the Court to ensure, even when proceedings are ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as possible in the absence of any contesting party. In the present case, however, there seems no occasion to doubt that the fact of the loss and the evaluation of the goods which were lost was carried out according to recognised principles applicable to contracts of marine carriage, and the practice of marine insurance."
(ii) Shewal Mal v. Seth Bhawani Mal Tora Chand (PLD 1969 Quetta 81)
5. "8. In view of the above authority of the Supreme Court, I proceed to consider the objection of Mr. Hanafi that the ex parte order passed by the Hakim or the Nazim Dhadar was without jurisdiction. I may mention that the interpretation which has been advocated to by Mr. Mirza Mohammad Ahmed does not appeal to me as fair and just to the party against whom ex parte proceedings may be ordered, because the consequence of his interpretation would be that the Hakim would be able to grant an ex parte decree with blindfolded eyes as soon as he comes to the conclusion that the defendant has failed to appear in spite of service because admittedly he has no jurisdiction to try suit. The present view of the law as enunciated by the Supreme Court, in a matter of this nature is that the Court cannot grant an ex parte decree without applying its mind to the facts and the law of the case--See in this respect East and West Steamship Co. v. Queensland Insurance Co. (1) More over, purely technically, there seems to be no reason for giving a restricted meaning to section 22 of the said Code by excluding from its ambit those cases in which ex parte proceedings may have been ordered."
(iii) Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89).
6. "The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayet Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayet Elahi's submission is correct, Courts would be compelled to decree patently time-barred suit or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the legislature, nor would be justified in being so because the amended rule now reads: " the Court may proceed ex parte and pass decree without recording evidence...."
7. ' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents. The petition is without merit and is dismissed."
(iv) Mistri Muhammad Hassan v. Haji Said Muhammad and others (1986 CLC 1241).
8. "Undoubtedly the Court is competent to pass a decree without recording evidence. But this does absolve the Court of its responsibility of being satisfied about propriety and genuineness of the claim on the basis of averments of plaint duly verified on oath and documents etc. Attached therewith. Discretion for proceeding to pass a decree without recording evidence is obviously available in just and proper cases. It, however, cannot be deemed to be exercisable in an arbitrary, capricious or fanciful manner. Evidently the Court in deciding to proceed without recording evidence is expected to be guided by judicial principles to satisfy its judicious conscience for approving assertions in the plaint. For arriving at proper conclusion it is obligatory for the Court to specify its basis for doing so on sound and cogent reasoning. Thus even if for justifiable grounds, evidence is not found necessary to be recorded; yet strong basis must pre-eminently exist to substantiate the claim which obviously should be reflected from judgment in the shape of sound, cogent and convincing reasonings."
9. It is thus quite obvious that observation of the trial Court for passing ex parte s decree merely because defendants are absent has no legal sanction. The ex parte decree was clearly devoid of lawful authority. It was then contended that appeal has been filed after considerable delay and valuable right accrued in favour of plaintiff respondent which could not be lightly taken away.
10. Learned Advocate General repelling above contentions argued that, bar of limitation is not operative in respect of void orders, and .Whole edifice constructed on the basis of such defective proceedings automatically crumbles. To substantiate his submission, reliance was placed on the observations in cases (i) Yousuf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC 104), (ii)
11. Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another (PLD 1966 SC 276),
(iii) Syed Nazir Hussain v. Settlement Commissioner Lyallpur (PLD 1974 Lah. 434), (iv) Mst. Rehmat Bibi and others v. Punnu Khan and others (1986 SCMR 962), (v) Manager, Jammu & Kashmir, State Properties in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) (vi) Khuda Bakhsh v. Khushi Mohammad and 3 others (PLD 1976 SC 208), (vii) Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), (viii) Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197) (ix) Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another (PLD 1976 Quetta 42). There is apparently considerable delay in filing the appeal before Majlis-e-Shoora.
12. However, question arises whether glaring illegality, should be allowed to perpetuate or revisional jurisdiction even suo motu be exercised to rectify inherent wrong. It may be seen that Courts have always insisted for determination of dispute on merits after proper opportunity and due consideration of claims of parties. Similarly under settled practice, perfunctory, reckless, non- speaking, arbitrary, mala fide or unjust orders have never been approved specially when disputes relate to rights concerning immovable property. Thus mere technicalities cannot obstruct powers of superior Court about correcting patent illegality or extremely unfair decision. Evidently original ex parte decree dated 23-11-1988 does not disclose any reasoning or application of mind. It has been passed flagrantly disregarding essential requirement of law. Besides testimony of witnesses recorded by plaintiff/respondent in the shape of ex parte evidence does not indicate how Malik Dinar Khan claimed ownership of suit property. Substantial evidence has not been produced by plaintiff/respondent. None of the objections raised in the written statement have at all been attended to by the forums below. Even Appellate Court has not visualised inherent defects of ex parte decree. Keeping in view illegalities apparent on the face of record in my opinion it is a fit case for exercising revisional jurisdiction so that wrong is remedied and defects of both sides are rectified. Accordingly to avoid prejudice to the parties and for ensuring determination of dispute on merits, I am inclined to accept the petition, set aside the ex parte judgments and decrees as well as orders passed by both the Courts below and remand the case to learned Qazi Turbat for disposal according to law after proper notice to the parties. ' There shall however be no order for costs.