' By this application under section 12(2), C.P.C. Applicants seek to set aside ex parte judgment and decree dated 28-11-1990 for the reason that the respondent had obtained ex parte decree by misrepresentation and fraud practised on this Court.
2. Plaintiff filed Suit No,1055/1989 for declaration, possession and compensation against the defendants on 21-9-1989 which was admitted for regular hearing on 26-9-1989. After this service of summons written statement was filed by the defendant, through their advocate Mr. B.A. Khalil on 26-3-1990. The suit was thereafter fixed for hearing on 9-9-1990 when learned counsel for the defendants obtained an adjournment. On 4-11-1990 the suit was fixed for settlements of issues when advocate for plaintiff was in attendance while there was no appearance on behalf of the defendants. Learned Single Judge on this day passed an order directing the defendant to appear in person on the next date of hearing i,e, 18-11-1990 as he would like to record his statement in order to narrow down the issues. On the adjourned hearing while the plaintiff and his counsel attended the Court, Advocate for defendants though present in the morning disappeared without any intimation. As the defendants remained absent in spite of the order dated 4-11-1990 learned Single Judge struck off their defence for non-compliance of the order and decreed the suit which had been impugned through this application.
3. At the hearing learned counsel for the applicants did not touch the grounds relating to commission of fraud and misrepresentation but he vehemently contended that by decreeing the suit ex parte learned Single Judge acted mechanically and without adverting to the facts of the case whether the defendants , failed to appear without any lawful excuse. Referring to the provisions contained in Order X, rules 2 and 4, C.P.C. Learned counsel submitted that it is discretionary with the Court either to decree the suit or to make any order as it thinks fit. He went on urging that the decree itself is a nullity and passed without jurisdiction thus it is liable to be set aside in the exercise of jurisdiction vested in this Court under subsection (2) of section 12, C P.0 .
4. In order to appreciate the point raised it would be convenient and advantageous to reproduce the aforesaid provision of law which read as under:
(2) Oral examination of the party or companion of party.--At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.
(4) Consequence of refusal or inability of pleader to answer.--(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
(2) If such party falls without lawful excuse to appear in person on the day so appointed, the Court may prenounce judgment against him or make such order in relating to the suit as it thinks fit.
5. A plain reading of aforesaid provisions, indicates that at the first hearing of the suit or an adjourned hearing any party appearing in person or present in Court, or any person able to answer any material question relating to the suit may be examined orally by the Court and the Court may if it thinks fit put in the course of such examination questions suggested by either party. It further appears that where such person refuses or is unable to answer any material question relating to the suit which in the opinion of the Court he ought to answer and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct the appearance of such party in person on the appointed day. Consequence of refusal or inability to answer such questions are postulated in sub-rule (2) of rule 4 of Order X, C.P.C. This sub-rule provides that if such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce Judgment against him or make such order in relation to the suit as it thinks fit.
6. Mr. Muhammad Sharif, learned counsel for the applicants submitted that on the date of order i,e, 4-11-1990 neither the defendants nor their Advocate were in attendance before the Court and the order requiring personal appearance. Of the defendants was passed in their absence. He pointed out that office had issued such notice requiring the defendants to appear in person tut the said notice could not be served on them. He further submitted that on the day of judgment and decree, advocate for the defendants did not appear when the Court by passing the impugned ex parte judgment and decree acted mechanically without applying its mind to the facts of the case. Main thrust of the argument was that by decreeing the suit, learned Single Judge did not exercise his jurisdiction properly and this act on his part would amount to nullity as held by the Supreme Court in Manager, Jammu and Kashmir State Property v. Khuda Yar and another PLD 1975 SC 678. This was an appeal before the Supreme Court from an order of the Lahore Court passed in Civil Revisional jurisdiction under section 115, C.P.C. In the context of rules 16, 17, 18 and 19 of Order XLI, C.P.C. Supreme Court observed that it was duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could not be called for hearing on that date, secondly, that he had acted rather mechanically without being aware of his discretionary power not to dismiss the appeal and therefore the order of dismissal having been made in ignorance of jurisdiction was void and a nullity.
7. Reference was then made to a case from Lahore Jurisdiction in IInd Appeal under C.P.C. It was observed in this case that under Order XLI, rule 17, C.P.C. The Court is not bound to dismiss an appeal for default of appearance of the appellant. In cases where a discretion vests in the Court but the order does not show and there are otherwise no grounds for presuming that the Judge who passes the order was conscious of the discretion and that he actually exercised the discretion, the High Court may set aside the order. It was held that it is the right of a party that the Judge who exercises powers in this case should be conscious of all the powers that he has, then that is tantamount to a misconception of his powers and his order is liable to be set aside.
8. Learned counsel also referred to Shamroz Khan v. Muhammad Amin and others PLD 1978 SC 89 which was a civil petition for special leave to appeal from judgment and order of the High Court passed in civil revisional jurisdiction. Referring to the provisions contained in Order IX, rule 6(1)(a), Supreme Court observed that words "the Court may proceed ex parte and pass decree without recording evidence". The word "may" here imports discretion and means "may" not "shall", therefore when a Court struck off the defence of the defendant, it had further to decide, in the exercise of its discretion, whether it should decree 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. This view was reiterated in Province of Punjab v. Muhammad Hussian PLD 1993 SC 147.
9. In Z.Z. Ahmed v. National Bank of Pakistan PLD 1991 SC 363 the view expressed was that where a plaintiff or defendant fails to appear in person when he has been ordered to do so, without lawful excuse, all the provisions applicable to the plaintiffs and defendants under Order IX, C.P.C. Thus become applicable and a decree can be passed against the defaulting party without recording evidence. In the reported case counsel appearing on behalf of the defendant on the date was not the original counsel of defendant and was a counsel appearing only to seek adjournment of the case and, therefore, was not in a position to answer any material question relating to the suit. It was, therefore, observed that presence of such a counsel did not imply that any pleader representing the defendant in the true sense appeared on his behalf. Their Lordships held that the proceedings taken against the defendant on the said date thus were in fact ex parte and in so far as a decree was passed against the defendant on that date it could legitimately be treated as an ex parte decree falling within the purview of Order IX, rule 6(1)(a), C.P.C. And was not a judgment falling under Order X, rule 4(2), C.P.C.
10. There is absolutely no dispute with the proposition of law as enunciated in the aforesaid cases but the fact remains that the observations made and conclusions drawn must be confined to the facts of the reported cases decided in the exercise of revisonal jurisdiction of the High Court and appellate jurisdiction of the Supreme Court. There can also be no second opinion that it is the duty of a Court to ascertain that the defendant has been duly served with process of the Court before proceeding with the case ex parte. The observations in PLD 1975 SC 678 that the subordinate Court had acted mechanically without being aware of the discretionary power not to dismiss an appeal cannot be applied to each and every case and is of no avail to the applicants in this case.
11. There is also no gainsaying that under Order XLI, rule 17, C.P.C. The Court is not bound to dismiss an appeal for default and it is vested with a discretion either to dismiss an appeal or to adjourn the hearing but dismissal of a cause for failure to appear without showing a lawful excuse would not tantamount to saying that the Court acted without jurisdiction. Likewise when a Court passes a decree on defendant's failure to appear without a sufficient cause it cannot be presumed that the Court was not conscious of its discretion either to pass a decree without recording evidence or to make any other order as thought fit. Reference to Shamroz Khan v. Muhammad Amin and others also is of no assistance to the applicants for the reason that the Court possessing the jurisdiction to proceed ex parte against them neither acted from want of jurisdiction nor without lawful authority simply because it was not recited in the order/judgment that it is not necessary to record evidence.
This circumstance alone would not render the impugned judgment as null and void as wrongly interpretated by learned counsel. The scope of section 12(2), C.P.C. Being limited the authorities cited at the Bar do not have the effect of extending the sphere of authority. The argument and the decided cases might well be relevant and of some force in examining the impugned judgment in the exercise of appellate or revisional jurisdiction but not in the exercise of power vested in a Court under section 12(2), C.P.C. It is thus evident that the learned Single Judge by decreeing the suit on failure of the defendants to appear without any lawful excuse did not act without jurisdiction.
12. Learned counsel then contended that the application under section 12(2), C.P.C. May be treated as an application under Order IX, rule 13, C.P.C. In order to set aside the ex parte judgment. In support of this submission he referred to Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139 laying down that if the second appeal exhibited certain features which demonstrated that it falls within the scope of interference under section 115, C.P.C., the Court should exercise its jurisdiction under the said provision of law. Without disputing the legal position it may be observed that the considerations in the exercise of power under section 12(2), C.P.C. Are completely different and distinct from the jurisdiction exercisable under Order IX, rule 13, C.P.C.. Under the former provision of law while a decree may be challenged on the plea of fraud, misrepresentation or want of jurisdiction, under the later provision, a decree passed ex pane against a defendant may be set aside if the defendant satisfies the Court that the summons were not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing. I have already dealt with the scope of section 12(2), C.P.C. Whereas it may suffice to say that in the present case the defendants were not only served with the summons but they also filed a written statement and were ,represented by an authorised agent. Evidently they have not been able to satisfy this Court or made out a case that they were prevented by any sufficient cause from appearing on the appointed day. Belated application moved by them under Oder IX, rule 7, C.P.C. For setting aside the ex parte judgment and decree was dismissed by the Additional Registrar (O.S.) for non- payment of costs. Learned counsel stated at the Bar that the applicants were not served with the order passed by the Court on 4-11-1990 but in my view after being duly served with the summons, having entered their defence and being represented by a counsel defendants cannot be allowed to say that they were not served with the order of the Court. In law a party after the service 9f notice or summons is required to keep a track of the proceedings and keep himself aware of the date of hearing unless prevented by sufficient cause. In my view no case for conversion of the application under section 1(2), C.P.C. To a prayer under Order IX, rule 3, C.P.C. Is made out and assuming that the applicants are entitled to conversion as prayed, they have utterly failed to make out a fit case for the grant of relief.
13. Lastly, it was maintained that it is the duty of the Court to apply to law and whatever law becomes applicable on the admitted or proved facts it has to be given effect to whether or not it has been relied upon by a party. Be that as it may. There is absolutely no difference of opinion with regard to the principle of law the fact remains that applicants are not entitled to the relief asked for in the present proceedings which is without any substance.
14. For the aforesaid facts and reasons, J. Miscellaneous under section 12(2), C.P.C. Is hereby dismissed. With the decision of J.M. C.M.A. No,3313/1992 and C.M.A. 7575/1992 stand disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.