This revision petition is filed to impeach the ex pane judgment, dated 2-6-1986 passed by the then Senior Civil Judge, Gujrat. The appeal against that judgment was also dismissed by the then learned Additional District Judge. Gujrat vide his judgment, dated 9-7-1988.
2. The brief facts are that the respondent/plaintiff on 19-5-1981 filed a suit for the recovery of Rs.40,000 as damages against the appellant. It was contended in the suit that the complainant was running a brick kiln at the distance of about one furlong from Rajbah 1-R/14-R maintained by the Irrigation Department. However, there was a breach in the aforesaid Rajbah (Water Channel), which inundated the brick kiln of the respondent/plaintiff on 14-5-1981 thereby damaging his property consisting of Coal, Phak, Burada and about one lac bricks. The damage to the aforesaid property was assessed at Rs.40,000.
3. The appellant/defendant filed written statement on 29-3- 1982 and took up the plea that the water channel was 59,800 feet in length and its banks were properly maintained. The breach had allegedly taken place on account of water theft committed by the agriculturists and as such the petitioner/defendant was allegedly not responsible for any damage to the property of respondent/plaintiff. The issues in the suit were struck on 22-6-1986 and the matter was fixed for evidence of the parties. The respondent/plaintiff concluded his evidence on 21-11-1983. The case was fixed for the evidence of the petitioner/defendant for 10-3-1984. On that date the petitioner/defendant could not produce his evidence and the matter was adjourned on his request to 4-9-1984 on the payment of conditional costs. The matter could not be attended to as the Presiding Officer was on leave on two dates of hearing. Ultimately the date for hearing was fixed as 12-2-1985 but nobody appeared for the petitioner/defendant on the aforesaid date whereupon the matter was adjourned to 27-2-1985, 12-5-1985, 30-9-1985, 12-11-1985, 18-12-1985 and thereafter, the impugned judgment was made on 2-6-1986 granting ex parte decree in favour of the respondent/plaintiff.
4. The petitioner/defendant moved an application for setting aside the ex parte decree on 1-10- 1986 which was rejected vide order, dated 28-4-1997 passed by the learned Senior Civil Judge, Gujrat. Aggrieved from the aforesaid rejection of the petition, the petitioner/defendant filed an appeal, which was also dismissed by the learned Additional District Judge, Gujrat vide his order, dated 9-7-1988 as pointed out above.
5. The learned counsel for the petitioner has submitted that the learned trial -Court dismissed the petition for setting aside the ex parte decree without examining the evidence in the case. In this respect, it was contended that no issue was framed to say whether there was any sufficient cause for setting aside the ex parte decree. In failure to do so, the petitioner/defendant was highly prejudiced as he had no occasion to contest the suit in the Court below.
6. Secondly it was alleged that the impugned order whereby the petition for setting aside the ex parte decree was dismissed, was void ab initio, as the case was adjourned on 3-12-1984 to 12-2- 1985 by the Reader of the Court in the absence of the learned Presiding Officer. It was, therefore, alleged that the adjourned date for evidence of the petitioner/defendant was not a date of hearing as it was in violation of Order XVII, Rule 5, C.P.C., and since the order in question was allegedly void ab initio, therefore, any super structure of the orders based thereon was also illegal and not sustainable in the eyes of law, nor the question of limitation would arise even if the appeal was made before the learned lower appellate Court after the prescribed limitation period of 30 days. In this connection, it was alleged that if the order was nullity, the appropriate remedy was under Article 181 and not Article 168 of the Limitation Act, 1908 and the period of limitation under the former Article was three years and not 30 days for filing a petition for setting aside order of dismissal or ex parte. Reliance was placed on Muhammad Qasim and others v. Moujuddin and others reported as 1985 SCMR 218, Nowsheri Khan v. Said Ahmad Shah reported as 1983 SCMR 1092 and Jamila Begum and others v. Abdullah Jan and others reported as PLD 1997 Pesh.
55. It was contended by the learned counsel for the petitioner that learned lower appellate Court was wrong to hold that the appeal was time-barred. It was urged that the revision petition be accepted and the case be remanded to the learned lower appellate Court for decision on merits.
7. The learned counsel for the respondent has submitted that this revision petition was filed in 1989 and was pending since then although the initial suit was filed somewhere in May, 1981. It was, therefore, alleged that there was no point to remand the case to the learned lower appellate Court as the same was hanging fire for more than two decades. Even otherwise on the legal premises, the authorities cited by the learned counsel for the petitioner were not allegedly applicable to the present case because those deal with the appellate jurisdiction and not with the jurisdiction of the trial Court, which is distinctly defined in Order XVII, Rule 5, C.P.C. As to what order had to be passed by the Reader of the Court when the trial Judge was absent. It was alleged that there was no para materia provision in C.P.C. For dealing with the appeals in such like situation. Secondly it was contended that in the reported cases, all the appeals were dismissed for non-prosecution, but in the instant case, the appeal was held time---barred because initial order was made by the leaned trial Court on 2-6-1986, but the petition for setting aside ex pane judgment was moved by the petitioner/defendant in the Court on 1-10-1986. The ex parte judgment in the case was originally delivered by the learned trial Court on 2-6-1986 against which appeal was filed on 13-5-1987 i.e. Beyond the period of limitation. It was, therefore, contended that in the Court below order was rightly passed, and in the instant case no sufficient reason was alleged, therefore, the learned trial Court was not bound even to frame the issue in that respect. Reliance was placed on Zulfiqar Ali v.
Lal Din and another reported as 1974 SCMR 162, wherein it was held that the party as well as the counsel were bound to see that the matter is properly and diligently prosecuted. Again the order dismissing the application for setting aside the ex parte decree for want of sufficient cause was allegedly not revisable under section 115, C.P.C. Reliance was placed on Ghulam Muhammad and others v. Muhammad Siddique and others reported as 1984 SCMR 1190.
8. 1 have considered the foregoing submissions and find that the present case was instituted in the Court below on 19=5-1981. It was fixed for 23-6-1981 and on that date, the petitioner/defendant was got served, but nobody turned up, whereupon the ex parte order was made against them, and the matter was adjourned for ex parte evidence on 17-9-1981. However, later on the ex parte order was set aside on showing of sufficient cause for non-appearance on the part of petitioner/defendant and the matter proceeded onward. The petitioner/ defendant submitted written statement in which they took up the plea that they had been performing their duties in maintaining water channel in the proper manner and as such the breach had nothing to do with their functionaries as the same was caused by the people while committing theft of the water. The learned trial Court appointed a commission the report of which is on record showing that the respondent/plaintiff had suffered total loss of about Rs.38,500. The commission examined six witnesses namely Ch. Sardar Khan, Muhammad Inayat, Ali Muhammad, Munshi Muhammad Anar, Sami Muhammad and Ch. Muhammad Riaz/respondent-plaintiff. The P.W. Namely Ch. Sardar Khan also assessed the loss up to Rs.40,000. The other witnesses also stated that due to breach of water, the plaintiff had suffered damage to his property in the approximation of Rs.40,000. The evidence brought on record by the plaintiff consisted of P.W.1 Syed Ijaz, P.W.2 Ch. Sardar Khan and the complainant himself as P.W.3. All these witnesses were cross-examined and according to them, the damage caused to the property of the plaintiff was about Rs.40,000. The report of the commission was brought on record as Exh.P- 2.
9. After the evidence of the plaintiff/respondent, the matter was fixed for evidence of petitioner/defendant for 3-12-1984. The file was wrongly pout up in the Court on 3-10-1984 perhaps because the date of hearing appeared to be written as 3-10-1984. The presiding Officer, however, directed that since the date of hearing was 3-12-1984, therefore, the file should come on that date.
On the aforesaid date, the counsel for the plaintiff was present, but no body appeared for the defendants. The Reader of the Court, therefore, adjourned the case to 12-2-1985, for evidence of defendants as the Presiding Officer was on casual leave. On 12-2-1985 nobody appeared for the defendants, whereupon the defendants were proceeded against ex parte and the matter proceeded further, resulting into ex parte decree.
10. It is to be seen, if there is any non-compliance of the provisions contained in Order XVII, Rule 5, C.P.C. It will be appropriate to reproduce the provisions contained in Rule 5 of Order supra. It runs as follows:- "When on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court-house on that day and the ministerial officer of the Court authorised in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him. "
It follows from the perusal of the aforesaid rule that a ministerial, officer of the Court shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him.
11. The above rule pre-supposes the presence of the parties in order to be aware about the next date of hearing and also to get slips of papers specifying A the adjourned date. This by implication makes it compulsory for the parties to appear on a date, when the Presiding Officer is absent. The proceedings under this rule would only become invalid, if the parties had presented themselves and were not given the slips of papers duly signed by the ministerial officer of the court. In that case, legal prejudice will be caused to the parties in the absence of issuance of such slips by the ministerial officer. - However, if the parties or any one of them had chosen to remain absent, then no such prejudice would be caused if the matter is fixed to an adjourned date for the purpose specified in the adjourning order. In such a situation, on the date so fixed, the Court may conduct the same proceedings as scheduled on the date on which the parties were absent. In the instant case, the petitioners/defendants were well-aware that evidence of the respondent/plaintiff has already been examined and that the case has been fixed for their evidence, but they had chosen to be absent on 3-12-1984 and also did not bother to appear in the Court on any subsequent date till the ex parte decree was passed on 2-6-1986. However, they moved a petition for setting aside the ex parte decree on 2-10-1986. This petition was clearly barred by time nor any reasonable cause was shown therein for setting aside the ex parte decree. In this connection, it was contended that the case in the Court below was pending adjudication but the officer, who was conducting the case was transferred to Sargodha and he left for his new place of posting after delivering the charge at Gujrat. Hence nobody was deputed to conduct the case, which resulted into ex parte decree about which they came to know when a warrant for execution of the same was sent through a bailiff of Court on 30-9-1986. The contents of this application clearly show that the petitioners/ defendants were highly negligent because nobody was appointed to pursue the case after the transfer of the officer Incharge conducting the case. This conduct can hardly be appreciated on the part of any litigant much less of the Government, which had a vast machinery to pursue its matters as compared to a private citizen. The mere fact that one of the officer was transferred and no other was deputed to pursue the case would be no legal ground nor it would constitute a sufficient cause for setting aside the ex parte decree, particularly when the B petitioners/defendants knew very well that the case has been pending in the Court and the evidence of the respondent/plaintiff had also been recorded and their case was at the evidence stage. This type of negligence is not only palpable but highly detestable. The learned trial Judge was, therefore, right in law that there was no sufficient cause to set aside the ex parte decree. The lower appellate Court also rightly held that apart from a remedy for a petitioner under Order IX, Rule 13, C.P.C., the petitioners/defendants had an alternate remedy in appeal to challenge the ex parte decree, but they opted not to file any appeal till the limitation time had hopelessly expired.
Since the petitioners/defendants absented from the Court below on the adjourned date without showing sufficient cause, therefore, the impugned order passed by the learned trial Judge could in no way be considered as illegal, or a nullity in the eyes of law so as to enlarge the limitation, which could be otherwise available. Even the petitioners did not make any application for enlarging time of limitation. In that situation, the impugned order passed by the Court below , as well as by the learned lower appellate Court would not call for interference in the revisional jurisdiction particularly when apart from the limitation, the learned lower appellate Court had made an observation that the trial Court had taken into consideration, the evidence brought on record while passing the impugned ex parte decree. I have myself gone through the evidence brought on record in the trial Court, which I have already all used to. The respondent/plaintiff had examined three witnesses, who were cross-examined and according to them the loss suffered by the plaintiff was in the tune of about Rs.40,000. The same was also in line with the report submitted by the Local Commissioner after examining six witnesses at the spot. In such a situation, on merits even, the impugned decree was good in the eyes of law. It will be an exercise in futility to take a narrow view of the matter by passing a remand order on technical premises as proposed by the learned counsel for the petitioners/defendants, that since the appal was time-barred, therefore, it may be sent back for decision afresh. I have already pointed out that since the basic order passed by the learned trial Judge in granting ex parte decree was not nullity in the eyes of law, therefore, the question of limitation was rightly determined by the learned lower appellate Court and did not call for interference particularly when both the Courts below have agreed on the question of fact that the damage suffered by the respondent/plaintiff due to the D nonfeasance of the petitioners/defendants came to Rs.40,000.
12. The revision petition being meritless is dismissed, with costs lD throughout.