1. MUNAWAR AHMED MIRZA, A.CJ.- Brief facts leading to the filing of present petition are, that respondent Ghulam Muhammad on 20.3.1987 instituted civil suit for declaration, ownership and possession concerning land and Bund styled as Chukani-Sheep 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 Baluchistan 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 extense:- -2-ity) J'bsjll J IjjJfJ Ijti ^ JUJU-1/It- If \fxij {{URDU MISS}} 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, Makran challenging ex parte decree and subsequent orders passed by trial Court. It may be seen that appeal was eventually dismissed by said Court on 26.3.1990.
2. Thereafter present petition was moved challenging ex parte dgcree of learned Qazi Turbat, subsequent orders as well as judgment of Majlis-e-Shoora, dated 263.1990. At the out-set, Mr. Khalid Malik learned counsel for respondent objected to the maintainability of petition on the ground if limitation. It was further contended that appeal No. 6/90, filed by petitioner before Majlis- e- Shoora, Makran 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-fade void. According to him question of Imitation had no relevancy as regards void orders. He further submitted that, trial Court while passing ex parte decree was obliged to dealate 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- mis-carriage 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 Mohammad. 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 (l)(a)
2. C.P.C. Courts, can pass ex parte decree even without recording evidence because under the amended provisions new pleadings must be filed on oath or solemn affirmation. Nevertheless superior Courts have always looked with dis-favour, decrees granted against absentees, without consideration of available record or application-of-mind. Factually amended provisions do not provide any arbitrary authority or latent 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 un-amended 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. Vs. Queensland Insurance Co. (P.L.D. 1962 Supreme Court-663)
3. "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 Mai Vs. Seth Bhawani Mai Tora Chand (P.L.D. 1969 Quetta- 81)
4. "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 appeal 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. Vs. 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".
5. Shamraz Khan and another Vs. Muhammad Amin and others (P.L.D. 1978 Supreme Court-89).
6. "The word-s" 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. Inayat 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 direction of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat 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 doing 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 of 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 discretion 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 of, therefore, on this ground also the suit was illegally decreed against the said respondents.
8. The petition is without merit and is dismissed."
(iv) Mistri Muhammad Hussain Vs. Haji Said Muhammad and others (P.L.D. 1986 Quetta-168)
9. "Undoubtedly the court is competent to pass a decree without recording evidence. But this does absolve the court erf its responsibility of being satisfied about proprietory 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 conscious for approving assertions in the plaint. For aid At proper conclusion it is obligatory for the court to specify its q nd 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 preeminently exist to substantiate the calid which obviously should be reflected from judgment in the shape of sound, cogent and convincing reasonings."
4. It is thus quite obvious that observation of the trial court for passing ex parte 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 hot operative in respect of void orders, and whole edifice constructed on the basis of such defective proceedings automatically crumbles. To substantiate his submission, reliance placed on the observation in cases (i) Yousuf Ali Versus Mohammad Aslam Zia and others (PLD 1958 S.C.-104) (ii)
11. Mumtaz Khan Vs. Chief Settlement and Rehabilitation Commissioner and another (PLD 1966 S.C.-276) (iii) Syed Nazir Hussain Vs. Settlement Commissioner Lyallpur (PLD 1974 Lahore-434) (iv)
12. Mst Rehmat Bibi and others Vs. Punnu Khan and others (1986) SCMR-962) (v) Manager, Jammu & Kashmir, State Properties in Pakistan Vs. Khuda Yar and another (PLD 1975 S.C. 678) (vi) Khuda Bakhsh Vs. Khushi Mohammad and 3 others (PLD -1976 S.C. 208) (vii) Sindh Employees Social Security Institution Vs. Dr. Mumtaz Ali Taj and another (PLD 1975 S.C. 450 (viii) Chittaranjan Cotton Mills Ltd. Staff Union (PLD S.C. 197) (ix) Syed Qasim Shah Vs. Deputy Commissioner, Kashi District and another (PLD 1976-Quetta-42). There is apparently considerably delay in filing the appeal before Majlis-e-Shoora. 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 claim of parties. Similarly under settled practice, perfunctory, wreckless, non-Speaking, arbitrary, mala fide or unjust orders have never been approved specially when dispute relates to rights concerning immovable property. Thus mere technicalities .Cannot obstruct powers of superior court about correcting patent illegality or extremely unfair decision.
13. 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 has 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 fact 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 order passed by . Both the courts below and remand the case to learned Qazi Turbat for disposal according to law after proper notices to the parties. There shall however be no order for costs.