1. BASHARAT AHMAD SHAIKH, J.--The facts giving rise to the present appeal are that the appellants filed an application under Section 7 of the Waqf Properties Act 1960, before the District Judge Muzaffarabad. The Auqaf Department, which was the sole respondent, defaulted in filing objections at different occasions with the result that the trial Court vide its order on 30th of January 1995, ordered that ex parte proceedings shall be taken against Auqaf Department and also struck out its defence. The Auqaf Department filed an application before the trial Court for recalling the order recorded on 30th of January but this application was dismissed on 3rd of July 1995. Thereupon the Auqaf Department filed appeal before the High Court. A learned Judge, vide order dated 25th of March 1996, treating the appeal as revision, set aside the orders passed on 30th of January and 3rd of July and gave yet another opportunity to the Auqaf Department to file objections on payment of Rs.2000. This order has been challenged by appellants Haji Muhammad Yaqoob and others after obtaining leave of the Court.
2. The order-sheet of the trial Court shows that on 10th of April 1995 Auqaf Department was directed to file the objections on 30th of April. On 30th of April a departmental representative made a prayer that an opportunity may be granted for filing of objections. The prayer was accepted. On the next date, 26th of May 1994, the counsel for the Department was not present but his clerk was present.
3. The case was adjourned for filing objections. The orders passed on 5th and 6th of July 1994 are not relevant to the present controversy. On 3rd of August the learned Presiding Officer was on leave and the case was adjourned for filing of objections. On 14th September departmental representative prayed for another opportunity for filing objections which was granted. On 22nd October same exercise was repeated. On 27th of November the learned counsel for the department prayed for yet another opportunity which was granted on payment of Rs. 30 as costs but it was recorded in the order that it was the last and final opportunity. On 24th December the learned District Judge was on leave. Objections were not filed and the Superintendent of the Court adjourned the case to 22nd of January 1995 for filing of objections. On 22nd of January, as usual, the learned counsel for the petitioner and the departmental representative were present, but objections were not filed. The learned Judge observed in the interim order that last and final opportunity had been given for filing objections but on the last date of hearing, 24th of December 1994, no order in this respect could be passed because he [Presiding Officer] was on leave. He, however, once again proceeded to grant adjournment on the request of the departmental representative for filing of objections on the payment of an additional amount of Rs.50. As already noted even on 30th of January objections were not filed. In fact nobody was present on behalf of Auqaf Department. Thereupon the defence was struck out and ex parte order was passed.
4. So far as factual side of the case is concerned we are not in doubt that the order passed by the trial Court was wholly justified. In fact the interim orders reproduced above show that undue leniency was given to the Auqaf Department but it did not avail numerous chances given to it for filing objections. While vacating the order of 30th of January on technical grounds even the learned judge in the High Court has not held that the order passed by the trial Court was not justified on facts. In fact the learned judge in the High Court has adversely commented on the conduct of the Auqaf Department by pointing out that conduct of the appellant could not be ignored while awarding costs. We may now advert to the grounds recorded by the High Court.
5. The first reason recorded by the High Court is that the order passed on 22nd of January adjourning the case to 30th of January for filing of objections was bad in law because the learned counsel for the Auqaf Department was not present and the order was recorded in his absence. However, a departmental representative was present who prayed for another opportunity for filing of objections. It has been held in the judgment under appeal that the departmental representative was not a duly authorised agent which means that nobody was present on behalf of the Auqaf Department. When plaintiff is present and the defendant is not present the Court could have passed any order warranted by law. Order 8 rule 10 of the Code of Civil Procedure provides that when the defendant fails to file a written statement the Court may pronounce judgement against him or make such order in relation to the suit as it may think fit. It may be pointed out that this rule is applicable when a written statement is not filed and the question whether counsel is present or absent from the Court is not material. A defendant cannot avoid the consequences stipulated in the aforesaid rule by keeping himself and his counsel away from the Court so that the Court may become helpless. It is clear that even if the counsel is absent judgment can be pronounced against a defendant if, when required to do so, fails to present the written statement. While holding that the order passed on 22nd of January 1995 could not have been passed in absence of the learned counsel the learned Judge in the High Court has not mentioned any rule. In fact there is no such rule or principle of law which forbids a Court of law to pass a legal order in absence of a party who is absent without legal justification. The learned Judge also failed to appreciate that the order passed on 22nd of January 1995 was an order which was not adverse to the Auqaf Department. On that date yet another opportunity was given to the department to file objections on the next date of hearing. Although on that date the trial Court could have exercised its power under order 8 rule 10 of pronouncing judgment against the department but it instead gave an opportunity to the Department.
6. The second ground recorded by the High Court also relates to the order passed on 22nd of January 1995 which has been mentioned above. It has been held that 22nd of January 1995 was not a date of hearing within the meaning of Order 9 Rule 8. We may observe that order 9 deals with a situation when the defendant is present before the Court but the plaintiff does not appear, while the present case is one in which the plaintiff was present and the defendant was not. Therefore, the High Court was not right in making reference to Order 9 Rule 8. Prior to 22nd of January 1995 numerous orders had been passed requiring the Auqaf Department to file Objections. As already pointed out, on 22nd of January 1995 no adverse order was passed against the Department. In fact it was granted another opportunity to file objections. In our view, the order passed on 22nd of January was perfectly legal.
7. Lastly the High Court has held that the order passed by the trial Court was bad in law on account of the fact that no notice was given to the Department for 30th of January 1995 as the counsel for the Department was not present on 22nd of January, the previous date of hearing. We find that third ground is equally untenable. It is true that on 22nd of January 1995 the counsel for the Auqaf Department was not present but it does not mean that a fresh notice should have issued to him for 30th of January, the next date of hearing. It was the duty of the counsel for the Department to be present before the Court when the case was called on for hearing. The law nowhere provides that if the defendant or his counsel is absent the Court should follow him by sending him fresh notice every time. Such a legal provision does not exist in any law. In fact such a provision if enacted would give a power of veto to the defendant while the scheme of the Code of Civil Procedure lays down that different adverse orders can be passed against an absenting defendant.
8. Since the grounds forming basis of the order under appeal are untenable we accept the appeal with costs and set aside the order passed by the High Court. Consequently the order passed by the trial Court on 30th of January 1995 is restored with the result that the trial Court shall proceed with the case from the stage at which the case stood on that date which means that the appellant would lead ex parte evidence in light of the said order.
9. Before the High Court and this Court a great deal of effort was exerted by the learned counsel for the present appellants to show that the application moved by the Auqaf Department before the trial Court for vacation of the order of 30th of January 1995 was not maintainable. Since we have examined the case on its merits and reached the conclusion which is favourable to the appellants we do not feel the necessity of deciding this point.