GUL ZARIN KIANI, J.- Short facts relevant for decision of the civil revision were as follows:- Muhammad Arif defendant No3 in the civil suit instituted by Rahim Khan plaintiff-respondent No.1 for declaration of ownership rights in respect of 153 kanals of land situate at Mauza Sandhu of Tehsil Pattoki District Kasur was declared ex-parte by the trial court on 12.2.1991. Previous to it, he had submitted his written statement and issues on merits were also settled, on 11.2.1990. Meanwhile, plaintiff gave his evidence and part of the evidence by co- defendants was also recorded. Since defendant No3 was exparte, he could not cross-examine plaintiffs witnesses and also those of his co-defendants, in case their testimony was adverse to his interest.
2. On 15.4.1993, defendant No.3 applied to the trial court under Order IX, Rule 7 Civil P.C for setting aside of the exparte order against him and for permission to join future proceedings in the suit.
Vide its order dated 3.5.1993, the trial court disallowed the petition and further adjourned the suit for co-defendants remaining evidence.
3. Aggrieved of the order, defendant No3 preferred revision in the District Court at Chunian. Upon amendment to Section 115 Civil P.C, revision petition was returned to him for its presentation in competent jurisdiction. Thereupon, it was instituted in this court. It was admitted to hearing today and was being disposed of in the following manner.
4. Trial Court found that defendant No3 had not made out sufficient cause for setting aside of the ex-parte order against him for being relegated to the stage of his initial default and that the petition filed by him was also barred by limitation. I shall forthwith advert to the point of limitation, the trial court did not think correctly. In Manzoor Ahmad Bhatti, Advocate V. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another- PLD 1973 Lahore 659, this court held the view that Order IX Rule 7 Civil P.C does not, as such, provide for a period of limitation. There are two rules which enable a defendant to apply for setting aside the ex-parte proceedings taken against him. During the pendency of the suit, such an application is competent under rule 7 while after the passing of the ex-parte decree, application is maintainable under rule
13. Up-to the stage when the case becomes ripe for pronouncing judgment, Order IX, rule 7 would apply and once the v .c has become ripe for this purpose the defendant is to wait for the passing of the exparte decree and he can approach the Court under rule 13". Obviously, the view taken by the trial court runs contrary to the law laid down by this court in the above cited case and, therefore, could not be maintained. As far the good cause shown for setting aside of the ex-parte order, I must affirm that defendant No1 was negligent. He kept himself out of the field for almost two years and two months and then returned to join the proceedings. His case was that since the dispute in the suit was shown to have been compromised, he did not appear at the trial but upon discovery of true facts, wished to join and defend the suit. There is a view that court should be liberal in construing Rule 7 of Order IX Civil P.C and should not take a stringent view of defendant's absence.
All that Rule 7 envisaged was that unless the exparte order was set aside, the defendant could not be relegated to the previous position he would have occupied if he had appeared. If he appeared on the adjourned date of hearing in the suit he could not be stopped and precluded from participating in the proceedings from that stage onward simply because he had not appeared on the previous hearing and did not show good cause for his non-appearance. As far joining future proceedings, defendant No.1 could not be stopped and the rule did not permit such a course by the court However, as regards occupying the previous position, defendant was obligated to show good cause for it and unless he did so, he could not be relegated to it. In my view, he did show a justifiable good cause for setting aside of the ex-parte order against him. Therefore, he deserved- to succeed.
5. In view of the aforesaid, civil revision is allowed; impugned order dated 3.5.1993 of the trial court is set aside with the consequence that defendant No1 shall be allowed to join the proceedings from the stage of his initial default in appearance on 12.2.1991 to claim cross-examination of plaintiff's witnesses and those of the co-defendants if adverse to his interest and also give evidence in defence. However, the order setting aside the ex-parte order shall be subject to prior payment of Rs.2000/- as costs to the plaintiff. It may be observed at the end that the General-Attorney of respondent No. 1- plaintiff in the suit had agreed to the setting aside of the ex-parte order on payment of costs. As far costs in this court, parties shall bear their own. Parties shall appear before the trial court on 11.6.1994. Furthermore, defendant No1 shall pay ex-penses for re-summoning of witnesses already examined for their cross-examination by him.