1. This is a civil revision application filed under section 115 of Code of Civil Procedure directed against .The judgment and decree, dated 24-10-1988 passed in Civil Suit No.91 of 1988 (Muhammad Yousuf & Co. v. H.M.C.) passed 6y learned VIth Extra Joint Civil Judge, Hyderabad which judgment and decree ,were affirmed on 20-3-1989 in Appeal No.263 of 1988 hence this revision petition., Brief facts of the case are that the respondent/plaintiff filed Suit No.91 of 1988 before the VIth Extra- Joint Civil Judge, Hyderabad and the case was fixed for filing written statement on 7-8-1988 but on the said date neither the defendants/applicants nor their counsel attended the Court therefore on the said date their side was closed and matter was ordered to proceed ex parte and the respondent/plaintiff was directed to bring evidence on the next date of hearing in ex parte proof and the matter was put off to 10-8-1988 on which date parties and their Advocates were present and ex parte proof was filed by the respondent/plaintiff, when the applicants/defendants also filed an application Exh.15 with the prayer that the order, dated 7-8-1988 be set aside and that they be allowed to file written statement and objections on an application filed under Order 39, Rules 1 and 2, C.P.C. But the said application (Exh.15) was dismissed on 20-10-1988 by the learned Joint Civil Judge with these observations:--- "After hearing both sides I have come to the conclusion that application filed under Order IX, read with section 151, C.P.C. Is not maintainable in law as same has not been filed with proper rule and defendant should file the said application under Order IX, Rule 7 otherwise no sufficient or crystal reason has been shown in the application and affidavit, bogus Medical Certificate is produced by the defendant which has been obtained in back date otherwise the statement regarding the illness is quite differ with Medical Certificate, defendant has failed to produce objections and written statement in time. Arguments did not satisfy the Court, if the said order is recalled and set aside plaintiff will suffer irreparable loss and injury. So in the interest of justice application under Order IX, read with section 151 is hereby dismissed with no order as to costs".
2. On 24-10-1988 suit of the respondent was decreed. The applicants/defendants filed Appeal No. 263 of 1988 which too was dismissed on 20-3-1989 by VIth Additional District Judge, Hyderabad against the said judgments and decrees passed by the said Courts present civil revision application has been filed.
3. I have heard Mr. Nawab Mirza, learned counsel for the applicants and Mr. Masood A.I Syed learned counsel for the respondent perused the impugned judgments and decrees and annexures filed at the revision petition.
4. It is admitted position that order to proceed ex parte was passed on 7-8-1988 and application under Order IX, read with section 151, C.P.C for setting aside of an order to proceed suit ex pane was made on 9-8-1988 as would appear from the certified true copy. Of said application and from the case diary, dated 10-8-1988. In the application, the absence on 7-8-1988 was shown due to serious type of cholera, which application was supported with an affidavit. However, the learned Joint Civil Judge rejected the application on the grounds mentioned in the order reproduced above. Order IX, Rule 7, C.P.C. Runs:--- "Where the Court has adjourned the hearing of the suit ex-parte and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. "
5. The above rule lays down that only when the suit is not finally decided and decree is not passed, the defendant would be entitled to be heard in answer to the suit as if he had appeared on the day fixed for his appearance subject to his assigning good cause. The above rule further lays down that in any case before the decree is passed, the defendant could participate in the proceedings to take place after the date of order viz. The suit to proceed ex parte even without getting the recall of order passed against him. The application (Exh.15) which was made by the applicants/defendants on the third day of passing of order, in the normal circumstances, should have been allowed as by that time decree was not passed against the applicants/defendants. The reasons given for the rejection of application (Exh.15) do not appear to be sound and the applicants/defendants should not have been refused the request made by them, as it would have advanced the justice.
6. Reference is made to Manzoor Ahmed Bhatti v. Road Transport Corporation (PLD 1973 Lahore 659 at 663) where the learned Judge in Chambers observed:--- "Rule 7 of Order IX, C.P.C. Empowers the Court on the defendant's appearing and showing good cause for his previous non-appearance, to hear the defendant in answer to the suit as if he had appeared on the date of the first hearing. In deciding such application the Court should liberally exercise its powers in favour of the defendant because the rules of procedure as laid down in C.P.C.
7. Are principally intended for advancing justice and not for retarding it on pure technicalities. The object of the Code is to give the parties to a litigation full opportunity of being heard and to advance their intention the provisions of Order IX, rule 7 should be generously construed. The opening phrase of Order IX, rule 7 'where the Court had adjourned the hearing of the suit ex parte' is wide enough to include not only the adjournment as a matter of right or the first adjournment in a case where the summons had been issued for framing of issues only, but also successive adjournments given under Order XVII, rule 1 of the Code of Civil Procedure. The terminus a quo for an application to set aside the ex parte order will be the date when the case is actually heard."
8. It be also pointed out that request for setting aside of the order was made only after two days and the suit should have been allowed to be decided on merits as object of law is to decide the cases on merits rather than to give ex parte judgments. The learned counsel who remained absent on 7- 8-1988 showed a good cause for his previous absence considering the fact also that the applicants/defendants is a statutory body which was being represented by the counsel. It may further be stated that learned Additional District Judge in his order, dated 20-3-1988 has stated that suit was filed on 9-5-1988 and the applicant/defendant was served on 28-5-1988 and the matter was adjourned for filing written statement to 12-7-1988 and no written statement was filed nor any application for extension of time was made. I find a certified true copy of written statement, dated 7-8-1988 with the appeal record, therefore it could not be said that written statement was not filed till 12-7-1988. The learned Additional District Judge has not given any reasoning in her order, dated 20-3-1989 as to whether the applicants/defendants had assigned good cause for their previous non-appearance on 7-8-1988 within the meaning of rule 7 of Order IX, C.P.C. In fact a maximum period of 90 days as provided under rule 1 of Order VIII, C.P.C. Had even not expired by 7- 8-1988 when the order for exparte proceeding in the suit was passed. From all these facts on the record it would appear that both the Courts below have misread the material on record and have not cared to go through the record properly when the written statement was already on the record which according to the learned counsel for the applicant was filed alongwith his application moved by him under Order IX, read with section 151, C.P.C. On 9-8-1988.
9. There is misreading and non-reading of the material on record therefore the present civil revision petition is maintainable within the meaning of section 115, C.P.C. The facts of cases cited by the learned counsel for the respondent/plaintiff are different and distinguishable to the facts of the instant case. Accordingly this revision petition is allowed, consequently the impugned orders passed by both Courts below are set aside and the written statement already filed be taken on record and applicants be heard in answer to the suit as if they had appeared on the date fixed for their appearance.