' Feroze Din brought a suit for perpetual injunction against Mahmood Ahmed, in respect of Quarter No, C/28/C-231 and plot No,231-A, measuring 5 marlas each, situate in Sector C-3, Mirpur city, on the basis of his title. The suit was instituted on March 29, 1988. On June 6, 1988, the defendant appeared before the Court when the case was adjourned for his written statement. On September, 4, 1988, the plaintiff was present. The defendant-petitioner failed to appear, as such ex parte proceedings were ordered against him and plaintiff was directed to lead ex parte evidence. On October, 22, 1988, ex parte decree was passed in favour of the plaintiff-respondent and against the defendant-petitioner. He moved for setting aside the ex parte decree on November 26. In his application, Mahmood Ahmed explained that on September 4 when he had to appear before the Court to file the written statement, he fell ill at Rekhbrari, District Jhang, Punjab, as such failed to appear before the Court. He learnt of the ex parte decree on November 22, as such he moved the application accordingly. The application was controverted on all points. It was dismissed by the trial Court as, in its view, no sufficient cause was shown by the petitioner for his absence. The order was passed on March 31, 1990. This order is the subject of present petition.
2. Mr. Abdul Latif Dutt, the learned Counsel for the petitioner contended that the impugned order was illegal as on the day when the ex parte proceedings were ordered against the petitioner, it was not the date of hearing of the case. It was emphasised that the date in question was fixed for filing of the written statement. A date fixed for filing of the written statement, in view of the learned Counsel, was not a date of hearing, as such no ex parte proceedings could be ordered against the petitioner. He cited PLD 1982 Azad J&K 54 and PLD 1971 Lah.
746. Mr. Nazir Ahmed Ghauri, the learned Counsel for the opposite side, supported the impugned order and cited PLD 1979 SC (AJ&K) 120.
3. Rule 6 of Order IX, C.P.C. Provides a procedure when only plaintiff appeals and defendant does not appear when the suit is called on for hearing. It provides an appropriate action by the Court in the manner of 3 categories listed under clauses (a), (b) and (c). In present case, it is undisputed that the summons was duly served on the defendant-petitioner. The defendant appeared before the Court twice when the case was adjourned at his request to enable him to submit his written statement. The date on which ex parte proceedings were ordered, in fact, was fixed for filing of the written statement of the defendant-petitioner. This state of fact is undisputed. Thus, the provisions contained under sub-rule (1) (a) are attracted in the case. These provisions are: "If it is proved that the summons was duly served and plaintiff appears in the Court and the defendant does not appear when the suit is called on for hearing, then Court may proceed ex parte." The only relevant condition listed under the provision is that ex parte proceedings may be ordered only when the case is called on "for hearing." The term "hearing of the suit" shall be construed elsewhere by examining its legal meaning and scope.
4. Rule 13, Order IX, C.P.C. Provides the scheme of procedure to set aside ex parte decree passed against defendant. It lays down that when ex parte decree is passed against the, defendant, he may apply to the Court by which decree was passed, for an order to set it aside. When such an application was moved, it was enjoined upon the Court to satisfy (i) that the summons was not duly served, or (ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. On the satisfaction of presence of either of the aforesaid grounds, the Court was empowered to make an order to set aside the decree against the defendant, upon such terms as it thought fit.
5. It is evident from the scheme of procedure postulated under Rule 13 (1) that whenever defendant moved to set aside ex parte decree passed against him, he was under duty to satisfy the Court that summons was not duly served on him or that he was prevented by sufficient cause from appearing in the Court. The first condition is not attracted in the case as it is nobody's case that the summons was not duly served on the defendant. Therefore, we are confronted only with the second ground whereby defendant was under duty to satisfy the Court that his absence was not voluntary but unvoluntary as he was prevented by a definite obstruction. In addition to reasons constituting a sufficient cause preventing from appearing in the Court, it is further relevant to show that such absence should be on the date when the suit was fixed for hearing. Here, again, reference has been made to the term "hearing of the suit". It is, therefore, relevant to construe the term "when the suit is called on for hearing" as contemplated under Rule 6(1) and the term "when the suit was called on for hearing" used in Rule 13(1) of Order 9, C.P.C. Both the terms are synonymous and convey singular meaning.
6. The term "hearing" has been defined in Black's Law Dictionary as: "Proceeding of relative formality (though generally less formal then a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have right to be heard, and is much the same as a trial and may terminate in final order. It is frequently used in a broader and more popular significance to describe whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception, and to hearings before administrative agencies as conducted by a hearing examiner or Administrative Law Judge.
' The introduction and adminissiblity of evidence is usually more lax in a hearing then in a civil or criminal trial."
' In Wharton's Law Lexicon' it is described: "an investigation of controversy."
The consensus is that the term "hearing of suit" implies the stage of trial in a civil action when Court applies its mind to the pleadings of the parties and frames issues in the light of the controversies raised therein and not prior to that stage. It is the consistent view of this Court as well as Supreme Court of Azad Jammu and Kashmir that whenever the term "date of hearing of suit or case" is referred, it always construes the stage of proceedings when the issues are raised out of the pleadings of the parties. An identical view was expressed in Habib Bank's case (PLD 1983 SC (AJ&K)
223). The learned Chief Justice who spoke for the Court, observed:-- "---The word 'hearing' it may be observed has been defined nowhere in the C.P.C. As defined in Wharton's Law Lexicon it means 'investigation of a controversy'. The word 'hearing', therefore, means taking of evidence or consideration of questions relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an interlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity."
8. In present case, it is undenied that on the date when ex parte proceedings were ordered against the defendant-petitioner, the proceedings were at the stage of filing of written statement. The date fixed for filing of written statement does not fall within the abmit of date fixed for hearing of the case. An identical view was expressed in Shafait Muhammad's case (PLD 1975 AJ&K 114). In that case, written statement was already filed and the suit was adjourned for framing of issues. The suit was adjourned to different dates for one or the other reason. Then on the date when it came up for hearing, the attorney of the defendant failed to appear. The suit was adjourned for proper orders.
On the next date, once again, no one appeared on behlaf of defendant, as such ex parte proceedings were ordered. Finally ex parte decree was passed against the defendant. The ex parte decree was passed on March 29, 1972. An application to set aside the ex parte decree, was moved on December 2, 1972, i.e, after 8 months and 27 days. The learned Judge of the High Court on perusal of the record, arrived at the conclusion that the date on which ex parte proceedings were ordered, was not the date of hearing of the suit, as such ex parte order was not maintainable. The ex parte decree was set aside in exercise of revisional jurisdiction of the Court.
9. Mr. Nazir Ahmed Ghauri, the learned Counsel for the respondent, in support of his contention, cited PLD 1979 SC (AJ&K)
120. In that case, undoubtedly, the proposition relating to construction of term "date of hearing of the suit" was not raised or examined. In that case, one of the decree- holders was not impleaded and the decree in pre-emption suit being a joint decree was considered as inseparable. Thus, one of the reasons for refusal of the application was for its being violative of rule of `audi alterm partem'. Morever, it was found that the defendant was duly served and despite service of the summons on him, he failed to appear. It was in the light of the aforesaid situation that ex parte decree passed against Muhammad Hanif Khan, appellant, was maintained.
The facts and proposition of law analysed therein were quite different. The authority was of no help to the respondent.
10. The aforesaid discussion leads to the conclusion that the date on which ex parte proceedings were ordered against the petitioner, was not the date of hearing, as such the provisions of Rule 6, Order 9, C.P.C. Were not attracted. Moreover, the petitioner successfully proved that ex parte decree passed against him was not maintainable as his absence in the proceedings was not relevant as the case was not fixed for hearing as contemplated under Rule 13 (1) of Order 9 of the Code. The petition is, therefore, accepted and the order of the trial Court is set aside. The ex parte decree passed against the petitioner is also reversed and the suit is restored on the file of the trial Court for its disposal by allowing the petitioner to submit his written statement, subject to payment of Rs,500 as costs. Parties are directed to appear before the trial Court on February 10, 1991.