The petition is addressed against the order of learned District Judge, Mirpur, passed on November 14, 1991, resulting in dismissal of application to set aside the ex parte proceedings.
2. Kashmir Steel Mills brought a suit for perpetual injunction against the Superintending Engineer (Electricity), Muzaffarabad, Executive Engineer (Electricity), Mirpur and Azad Government of the State of Jammu and Kashmir through its Chief Secretary, in the Court of District Judge, Mirpur, on May 8, 1990. An application for interim relief was also moved. The Executive Engineer (Electricity)
Mirpur, was duly served, as such he appeared in the Court on June 17, 1990 when the case was adjourned for presence of the other defendants. On August 25, 1991, as the defendants were absent, they were proceeded ex parte and plaintiff was ordered to lead his evidence on the next date. On August 29, 1991, statement of plaintiff as witness was recorded when an application was moved on behalf of defendants to set aside the ex parte proceedings recorded against them. The application was opposed. It was, therefore, dismissed for want of proper presentation and sufficient cause for the absence of the defendants on August 25, 1991. This order has been assailed in the present petition.
3. Mr. Muhammad Akhtar, the learned Counsel for the petitioners contended that the petitioners were present in the Court on August 25, 1991 and were sitting in the Retiring Room of the District Judge when the case was called on for hearing by the Clerk of Court, in his own office. The defendants not being aware of the calling of the case, could not put up their appearance personally before the Clerk of Court who recorded the impugned order of ex parte proceedings.
The application was moved on August 29, 1991 i,e, 5 days after the- passing of the order of ex parte proceedings, as such the application was within time and it well-explained the cause of absence of the defendant-petitioners. Ch. Muhammad Taj, the learned Counsel for the opposite side, controverted the aforesaid points and contended that none of the petitioners was present in the premises of the Court at the time when the suit was called on for hearing. Therefore, ex parte proceedings were correctly made against them. It was emphasised that the application to set aside the ex parte proceedings was neither presented properly by the petitioners or through their authorised agent nor it contained sufficient cause- for absence of the petitioners. It was argued that said application was not accompanied by an affidavit.
4. It appears from the record of the trial Court that the order of ex parte proceedings was recorded by the Clerk of Court and was signed by the Presiding Officer. The application to set aside the ex parte proceedings does not reflect presence of the petitioners in the Retiring. Room of the Presiding Officer, as contended by the learned Counsel for the petitioners. The application is quite vague and ambiguous. It only shows that absence was not wilful. The representative of the petitioners was present in the Court who could not put up his appearance for lack of knowledge of calling of the case. The application was signed by the petitioners but the interim order reflects that it was presented before the Court by Muhammad Yasin, a Junior Clerk. Muhammad Yasin was neither a party nor an authorised agent of the petitioners, as such presentation of the application, prima fade, was not made by the petitioners. The application was not accompanied by an affidavit. It is, therefore, rightly pointed out by the learned Counsel for the opposite side that the application, though moved within time, carried no satisfactory explanation relating to absence of the petitioners in the Court at the relevant time. The objection is, therefore, well founded.
5. Here, it is relevant to state that the Superintending Engineer (Electricity), Mirpur, petitioner No,1, is not party to the suit before the District Judge, as such ex parte order was not passed against him.
The petition against the impugned order to his extent, is not maintainable on that score. However, an application was moved on his behalf before this Court to implead him as defendant in the suit.
This aspect of the case shall be dealt with next.
6. The relevant provisions relating to appearance of the parties and consequences of their non- appearance before the Court, are postulated under the purview of Order 9, C.P.C. The relevant rule of procedure which attracts to the position where the plaintiff appears and defendant does not appear when the suit is called on for hearing, is Rule 6. Under this rule, when it is proved that the summons has been duly served on the defendant and he has failed to appear when the suit is called on for hearing, the Court is empowered to proceed ex parte against such defendant. Next, when it was not proved that the summons was duly served on the defendant, instead of proceeding ex parte due to failure of the defendant to appear before the Court when the suit is called on for hearing, the Court was enjoined to direct that second summons be issued for its service on the defendant.
7. In present case, the summons was shown to have been served on the Executive Engineer (Electricity), Mirpur, petitioner No,2, and not on Superintending Engineer (Electricity), Muzaffarabad and the Chief Secretary who represented the Government. The proceedings preceding to the order of August 25, 1991 reflect that defendants Nos.1 and 3 were still being summoned for their appearance in the Court and by the time, they were not duly served. In this view of the matter, ex parte proceedings against defendants Nos.1 and 3 were patently unwaranted, as such illegal.
8. It would be useful to mention here that on June 19, one Muhammad Ishaque, an authorised agent of respondents Nos.1 and 3 was recorded present but on that day, the Presiding Officer was on leave, as such the case was adjourned to July 16. On that day, again, the authorised agent of respondents Nos.1 and 3 was recorded present and the Presiding Officer, again, was on leave, as such the case was adjourned to August 25. No authority of defendants Nos.1 and 3 in the name of Muhammad Ishaque, or any other person was available on the file of the trial Court. This suggests that Muhammad Ishaque or someone else were not authorised by respondents Nos.1 and 3 to put up his personal appearance on their behalf.
9. Rule 6(1), Order 9, C.P.C., as noticed earlier, refers to procedure where plaintiff appears and defendant does not appear. It provides the mode of proceedings to be carried by the trial Court in presence of respective conditions illustrated therein. When it is proved that the summons was duly served on the defendant and he failed to appear when the suit was called on for hearing and the plaintiff thereby appeared, the Court was empowered to proceed ex parte against the defendant.
Here, reference to non-appearance of defendant was co-related to the term "hearing of the suit".
The term "hearing of the suit" finds its mention under the provisions of Orders 9 and 17, Rules 2 and
3. It reflects that the Court has to dismiss the suit or to proceed ex parte for want of appearance of the plaintiff and defendant when either of them failed to appear when the suit was called on for hearing. In other words, an action of dismissal of suit or ex parte proceedings or ex parte decree was permissible only when the party failed to appear op the day fixed for hearing of the suit.
10. The term "hearing" invariably received the attention of the superior judiciary of the Sub- Continent and the consensus is that it confines to the proceedings relating to progress in the suit and not to proceedings where only a step prior to the progress of the suit was to be taken. The proposition was elaborated in different cases decided by this Court and Supreme Court of Azad Jammu and Kashmir. Reference is made to Habib Bank's case PLD 1983 SC Azad J&K 223. It was a case for recovery of amount as damages instituted by Khawaja Muhammad Ishaque against Habib Bank Limited. On the day when the order of ex parte proceedings was passed, the case was adjourned for proper orders. On that day, the defendants were absent and they were proceeded ex parte. The learned Chief Justice while dealing with Rule 6(1) of Order 9, C.P.C., observed:-- "8. Discussing the scope of Order IX, rule 6(1) of the C.P.C., the Courts are practically one to observe that it is confined to the first hearing in the suit and does not, per se, apply to the subsequent hearings. The provisions under this order do not apply to a case (as the case is before us) in which plaintiff or defendant has already appeared but has failed to appear at an adjourned bearing of the suit."
11. The term "hearing' was further examined and construed as:-- "13. 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 question 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."
As on the date when the ex parte order was recorded, no progress in the suit was to be made as the suit was adjourned for proper orders, the order of setting aside ex parte proceedings was maintained.
12. In present case, as noticed earlier, the Presiding Officer was on leave on two earlier dates to which the case was adjourned and again, proceedings were adjourned to August 25, 1991, for proper orders. Thus, the date August 25, 1991 was not the date of hearing in the suit, as such ex parte proceedings on account of absence of the defendants were unwarranted and illegal.
13. The suit was at the stage of filing of objections to the miscellaneous application and defendants were not asked to file the written statement at that stage. Despite the fact that ex parte proceedings were ordered against the defendants on August 25, 1991, they could join the proceedings on August 29, 1991 and present their written statement for the progress of the suit. It appears that neither the learned District Judge nor the learned Counsel for the parties cared to appreciate the situation of the proceedings under consideration and unnecessarily indulged into ancillary proceedings resulting in present petition.
14. In this view of the matter, the petition is granted. The ex parte proceedings recorded on August 25, 1991 are hereby set aside and the Executive Engineer, defendant No,2, who is already before the Court, is free to file his written statement on the next date of hearing.
15.The Superintending Engineer, Mirpur (Electricity) as described earlier, moved an application to implead him as defendant. The application is covered by the provisions of Order 1, Rule 10 (2), C.P.C.
Sub-rule (2) empowers the Court to join any person as defendant who ought to have been joined as such for his presence before the Court, being necessary in order to enable the Court to settle and adjudicate upon the questions involved in the suit effectually and completely. The Superintending Engineer (Electricity), Mirpur being a necessary party, was eligible to seek his appearance before the Court as defendant, by arraying him as such. Nevertheless, this application is to be moved before the trial Court first and this Court can be approached only when such application is not adequately considered. Therefore, the Superintending Engineer (Electricity), Mirpur is directed to move the learned District Judge for impleading him as defendant, to enable him to prosecute the defence in the suit. The application is disposed of accordingly. No order as to costs.