' On 29th May, 1984 a suit for recovery of Rs,1,99,547.43 was filed by respondent No,1 against Messrs Kareem Brothers a partnership firm of which the petitioner is one of'the partneRs, The suit was decreed ex parte by the trial Court on 27th July, 1985.
2. On 27th July, 1985 an application under Order IX, Rule 13 of the C.P.C. Was filed by the petitioner as a partner of the judgment-debtor firm alleging that no summons was ever served upon him, the firm or any of its partneRs, This application was contested by respondent No,1 by filing a reply in which certain preliminary objections were also raised. The trial Court by means of its order, dated 24th of June, 1989 came to the conclusion that the ex parte decree was liable to set aside as the petitioner cannot be condemned unheard. However, while setting aside the decree a condition that the petitioner should furnish a bank guarantee to the extent of decretal amount was imposed. The imposition of this condition was challenged. By the petitioner by filing a revision which was dismissed by the Additional District Judge, Lahore on 19th February, 1990. The petitioner has now approached this Court by filing this Constitutional petition.
3. I have heard Mr. Abdur Rehman Madni, Advocate for the petitioner. No A one appears for the respondents despite repeated calls.
' The learned counsel for the petitioner submits that the discretion vested in the trial Court for setting aside the ex parte decree subject to certain ' conditions has been arbitrarily exercised by it.
Reliance in this connection has been placed upon the judgment of this Court in Retd. Brigadier Hamid Hussain v. Ch. Barkat Ali PLD 1977 Lah.
2.
4. In the application under Order IX, Rule 13 of the C.P.C. Filed by the petitioner, it was specifically averred that neither the partnership firm nor any of its partners including the petitioner were ever served with the summons and it was for this reason that the suit could not be contested by them.
This plea was accepted by the trial Court which was of the view that the petitioner had been condemned unheard. Having itself come to the conclusion that the petitioner was not served with the summons as required by law, it is not understandable as to how such an onerous condition like furnishing a bank guarantee for setting aside the ex parte decree could be imposed. There can be no dispute that under Order IX, Rule 13 of the C.P.C. a Court is empowered while setting aside an ex parte decree to direct the deposit of the decretal amount in Court or to impose any of other conditions as the circumstances may justify but this discretion has to be exercised in a judicious manner. In the present case if the petitioner or the firm had not been served with summons, no fault certainly lay with them and there is no reason as to why they should be called upon to deposit the decretal amount as condition precedent for the setting aside the ex parte decree. In the present case while exercising the discretion under Order IX, Rule 13, C.P.C. The nature of the claim in suit must also be considered. Unfortunately the trial Court and the Additional District Judge have also failed to notice that the suit amount was being claimed by the respondent/plaintiff as damages for the breach of a contract and loss, if any suffered by the plaintiff/respondent was to be quantified at the trial. It thus becomes evident that the Courts below have acted arbitrarily and with material irregularity in exercise of their discretion in burdening the petitioner with such a harsh condition as furnishing a bank guarantee which virtually amounts to deposit in cash while setting aside the ex parte decrees.
5. In Retd. Brigadier Hamid Hussain v. Ch. Barkat Ali PLD 1977 Lah. 2 it was held that if it is proved that there was no negligence whatsoever on the part of the defendant, the Court may set aside the ex parte decree without payment of any costs or imposing any onerous terms on the applicant/judgment-debtor unless it finds that he was at fault. In Madan Mohan v. B. Kanhaiya Lal AIR 1933 All. 601 it was held that if sufficient cause was shown for non-appearance the condition of payment of any part of the decretal amount was not called for.
For the reasons aforesaid this petition is accepted, the imposition of the condition by the trial Court that the petitioner should furnish bank guarantee is declared to be without lawful authority and of no legal effect.
' There shall be no order as to costs.