1. ' The brief facts out of which the present appeal arises are that the respondent filed a suit for the recovery of dowry amounting to Rs, 5,00,000 on 17-1-1995 before the Senior Civil Judge, Lahore who entrusted the same to learned Civil Judge, First Class. The respondent did not affix the proper court-fee and the plaint was rejected by the learned Civil Judge First Class vide order, dated 7-3- 1995. The respondent being aggrieved by the order of the Civil Judge filed revision before the District Judge, Lahore who entrusted the same to the Additional District Judge, Lahore. The learned Additional District Judge accepted the revision vide order, dated 1-4-1996 and directed the parties to appear before the Senior Civil Judge on 8-4-1996.
2. ' The learned Additional District Judge further directed the respondent to affix the proper court-fee till 25-4-1996. The appellant did not appear before the learned Civil Judge on 8-4-1996 and the case was adjourned for 9-5-1996 for inspection of the file. On 9-5-1996 the appellant did not enter appearance and the notice was sent to the appellant for 23-5-1996. On 23-5-1996 appellant did not enter appearance and the case was adjourned for 6-6-1996. On 6-6-1996 the appellant did not enter appearance and the ex parte decree was passed against the appellant under Order 9, Rule 6, C.P.C. The appellant being aggrieved by the order of the learned Civil Judge, dated 6-6-1996 filed an application under Order 9, Rule 13 read with sections 151 and 152 and enabling provisions of the C.P.C., for setting aside the ex parte decree, dated 6-6-1996. The learned Trial Court dismissed the same vide order, dated 23-7-1999, hence the present appeal.
2. The learned counsel for the appellant stated that appellant appeared in Court on 8-4-1996 and contacted the Reader of the Court who informed him that the respondent has not affixed the proper court-fee, therefore, fresh notice be issued to the appellant for a date to be fixed by the Court. He further stated that subsequently notices were issued to the appellant on a wrong address and summon was also served on the wrong address which were not received by the appellant, therefore, appellant did not enter appearance. He further stated that original order of the Trial Court, dated 6-6-1996 is in violation of mandatory provisions of Order 5, Rule 5, C.P.C., and the law laid down by this Court in 1983 CLC 1398. He further stated that no doubt the learned Additional District Judge directed the parties to appear before the Trial Court on 8-4-1996 but the learned Trial Court did not pass ex parte order against the appellant on 9-5-1996 and adjourned the same and issued notices and summons to the appellant, therefore, 6-6-1996 is not the date of hearing, hence the Trial Court has no authority to pass ex parte decree against the appellant as the principle laid down by the superior Courts in the following judgments: ---
(1) 1973 SCMR 107.
(2) 1987 SCMR 733.
(3) PLD 1981 Lahore 339.
(4) PLD 1971 Lahore 746.
(5) 1992 SCMR 707.
3. ' He further stated that the order of the Trial Court is in violation of the mandatory provisions of the C.P.C., i,e,, Order 5, Rule 1 and Order 8, Rule 8, C.P.C. He further stated that ex pane decree, dated 6- 6-1996 is not covered under Order 9, Rule 6, C.P.C., as the ingredients of Order 9, Rule 6 is not fulfilled. He further stated that Trial Court has no jurisdiction to pass the ex parte order against the appellant without the service of the summons of the appellant as is envisaged by Order 9, Rule 13 read with Order 5, Rule 1, C.P.C. He relied upon the following judgments:--
(1) AIR 1979 Patna 341.
(2) AIR 1985 Rajasthan 53.
4. ' He further urged that summon does not mention whether the same was sent to the appellant for settlement of issue, therefore, learned Trial Court was not justified to pass ex parte order against the appellant as the same is also in violation of Order 15, Rule 3, C.P.C. He further stated that summons were issued to the appellant on wrong address, therefore, ex parte decree, dated 6-6- 1996 is without lawful authority as the principle laid down by this Court in PLD 1980 Lahore 668. He further stated that the Trial Court did not exercise its discretion properly as the principle laid down by the Hon'ble Supreme Court in PLD 1978 Supreme Court 89. He further stated that there was no material or evidence before the Trial Court to pass an ex parte order against the appellant on 6-6- 1996, therefore, basic order is without lawful authority and in violation of the law laid down by the superior Courts in the following judgments:---
(1) 1981 CLC 2033.
(2) 1987 CLC 218.
3. The learned counsel for the respondent stated that the points raised by the learned counsel of the appellant regarding merits of the decree cannot be considered as the appellant has filed appeal under Order 43, Rule 1(d) in which this Court has only confined to question of service of summons. He further stated that the appellant did not enter appearance before the Additional District Judge on 1-4-1996. When the learned Additional District Judge dictated the ex parte decree order the appellant entered appearance with an application for setting aside the ex parte order immediately. He further stated that the conduct of the appellant is such that he did not appear before the learned Additional District Judge until and unless he was compelled by the circumstances to dictate ex parte order against him. He further stated that on 1-4-1996 the learned Additional District Judge directed the parties to appear before the Trial Court on 8-4-1996. He further stated that it is the duty and obligation of the appellant to find out the date of hearing when the case was remanded by the Appellate Court to the Trial Court, in view of the Law Reforms Ordinance, 1972 and the law laid down by the Hon'ble Supreme Court in 1987 SCMR 150. He further stated that the learned Appellate Court directed the parties to appear before the Trial Court on 8- 4-1996 and respondent was also directed to affix the proper court-fee till 25-4-1996. He further urged that in case the appellant's contention is accepted that he contacted the Reader of the Trial Court on 8-4-1996 then he must have to ask 'the Reader on 25-4-1996 but he did not Pursue the matter vigilantly till the ex parte order was passed against him on 6-6-1996. He further stated that he did not file affidavit of the Reader that he contacted the Reader on 8-4-1996. He further urged that the appellant played hide and seek with the Court and learned Trial Court has no option except to pass ex parte decree against him as the principle laid down by the Hon'ble Supreme Court in 1987 SCMR 150. He further stated that it was mistake of the Trial Court not to pass ex parte decree against the appellant. On 9-5-1996, therefore, respondent should not be penalised by the act of the Court as the learned Trial Court failed to pass ex parte decree on 9-5-1996. The Trial Court rectified his mistake by passing ex parte decree, dated 6-6-1996. He further stated that the points raised by the learned counsel of the appellant regarding date of hearing has no relevancy as in the present case as the parties were directed by the revisional Court to appear before the Trial Court on 18-4-1996, therefore, the order of the Trial Court is fully covered in the aforesaid judgment. He further stated that proviso 2 in Order 9, Rule 13 was added by Law Reforms Ordinance, therefore, judgment cited by the learned counsel for the appellant of Indian jurisdiction have no relevancy as the Indian Civil Procedure Code has not been amended and there is no parallel provisions in Order 9, Rule 13 in Indian C.P.C. After narrating the history of legislation regarding the Law Reforms stated that it was duty cast on the Transferee Court issued notice to the appellant before Law Reforms Ordinance, 1972 as the law laid down by the superior Courts in PLD 1952 Lahore 82 and PLD 1982 Lahore 1041 but subsequently after the enforcement of the Law Reforms Ordinance and the law laid down by the Hon'ble Supreme Court the aforesaid judgments were overruled in 1978 SCMR 150.
5. ' The learned counsel of the appellant in rebuttal stated that aforesaid amendments were introduced much before the enforcement of Law Reforms Ordinance of the Civil Procedure Code, therefore, judgments cited by the learned counsel from the Indian jurisdiction are relevant to decide the controversy between the parties.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce the relevant orders of the Trial Court to resolve the controversy between the parties:---{{URDU TEXT}} ' It is admitted fact that learned Additional District Judge directed the parties to appear before the Trial Court on 8-4-1996. It is also admitted fact that the case was adjourned by the Trial Court on 8-4-1996 for 9-5-1996 for inspection of the file. The learned Trial Court did not pass ex pane order against the appellant on 9-5-1996 and the case was adjourned for 23-5-1996 with the direction to the respondent to deposit 'Fard Talbana' within two days. The order, dated 23-5-1996 reveals that summons not received back and the case was adjourned for 6-6-1996 with the direction to the respondent that the notice/ summons be issued to the appellant/defendant for 6-6-1996. The order, dated 6-6-1996 reveals that the notices were not served upon the appellant/defendant. The learned Trial Court passed the ex parte decree on 6-6-1996. The appellant was fully aware of the proceedings in the suit and had purposely kept away as the learned Additional District Judge directed the parties to appear before the Trial Court on 8-4-1996. It is also settled proposition of law that even there be some irregularity in the service of summons, the ex parte decree against appellant cannot be set aside in view of 2nd proviso to Order 9, Rule 13, C.P.C., which was added by the Law Reforms Ordinance, 1972 in order to prevent the misuse of process of Court by the parties who do not intentionally appeared in Court despite full knowledge of the proceedings. Section 24-A of the C.P.C., was interpretated by the Hon'ble Supreme Court in case of S. Irshad Hussain and another v. Aziz Ullah Khan and others (1987 SCMR 150) and the relevant observation is as follows:--- "The language of section 24-A, subsection (2) in fact reflects this purpose and seeks to achieve it by making it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred. The only duty placed on the Court is to inform them so that they approach it for that purpose. There was no indication on the record that any defaulting defendant had approached any of the Courts for that purpose."
6. ' It is pertinent to mention here that Trial Court has to pass an ex parte decree against the appellant on 9-5-1996 but the Trial Court did not pass ex parte decree and notice was sent to the appellant on 23-5-1996. Once the Court has adopted a different method then it is the duty and obligation of the Trial Court to take the same to its logical end. The ex-pane decree was passed against the appellant without recording any evidence of the respondent/plaintiff. The words "and pass decree without recording evidence occurring in Order IX, Rule 6(1), C.P.C., do not mean that the question was left to the discretion of the Courts nor does it mean that it was incumbent on Courts to decree a suit without recording evidence. In Authority of Shamroz Khan v. Muhammad Amin (PLD 1978 SC 189) the words "the Court may proceed ex parte and pass decree without recording evidence "were considered in the concluding paragraph of the report which is as follows:--- "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, it has further to decide, in the exercise of its discretion, whether it should decrcc the claim against the defendant after recording evidence or without recording, and like all discretions 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 off, therefore, on this ground also, the suit was illegally decree against the said respondents."
7. ' It is pertinent to mention here that the Courts are generally liberal in ordering restoration of cases dismissed in default, because as observed in Sharafat Ali v. Muhammad Boota and another (1985 CLC 1063) the law leans in favour of adjudication of cases on merits rather than their disposal on the basis of technicalities. I am also fortified by the judgment of the Hon'ble Supreme Court 1979 SCMR 32. Thal Engineering Industries Ltd. v. Bank of Bahawalpur Ltd. And another. It is also settled proposition of law that nobody should be penalised by the act of the Court as the principle laid down by the Division Bench of this Court in PLD 1975 Lahore 7. The judgment relied by the learned counsel of the respondent is distinguished on facts and law as the Trial Court did not pass ex parte decree on 9-5-1996 as the principle laid down by the Hon'ble Supreme Court in Province of Punjab v. Lt. Genl. (Retd.) Wajid Ali Burki (PLD 1990 SC 813) and observed as under:- "Once the case was adjourned at the request of alleged representative of the petitioner, the only course open to the Court was to proceed in accordance with Order IX which has not been done in the present case. Order IX, Rule 6(1)(a) is applicable to the facts of the present case."
8. ' I am also fortified by the judgment of the Hob'ble Supreme Court in M/s. Rehman Weaving Factory (Regd.) Bahawalnagar v. Punjab Small Industries Corporation Lahore (PLD 1981 SC 21). The Hon'ble Supreme Court has laid down a principle in Khuda Yar's case PLD 1975 SC 678 that technicalities should not be hindrance in the way of justice. The relevant observation is as follows:-- "Mere technicalities only over the in surmounting hurdle should not be allowed to defeat the ends of justice. ' and followed the principle laid down by the Hon'ble Supreme Court in Imtiaz Ahmad's case PLD 1963 SC 382. The judgment cited by the learned counsel of the respondent is distinguished on sole ground that the Hon'ble Supreme Court departured from the previous practice and insisted to avoid technicalities and cases must be decided on merits after addition of Article 2-A in the Constitution.
9. ' I am fortified by the dictum laid down by the Hon'ble Supreme Court in PLD 1989 SC 532. The relevant observation is as follows:-- "A party should not be denied a relief on account of technicalities in the procedural law, as the same is forming for the purpose of regulating the legal procedure, they are extended and designed to foster the cast of justice rather than to defeat it.
10. ' The aforesaid judgment was again followed by the Hon'ble Supreme Court in 1993 SCMR 363. I am also fortified by the judgment of this Court 1999 MLD 2202 M/s. Akamji Construction Company Ltd. v.
11. Government of Punjab 1999 MLD 2146 Alam Din and 14 others v. Muhammad Din and 35 others.
12. In view of what has been discussed above the appeal is accepted and the ex parte decree, dated 6-6-1996 and the order, dated 23-6-1999 are set aside. Parties are directed to appear before the Trial Court on 21-10-1999. Since it is a family matter, therefore, Trial Court is requested to decide the suit positively within four months i,e,, till 21-2-2000 even at the cost of day to day proceedings.