' The point raised for determination in this revision petition is as to whether the learned trial Judge was correct in not recording evidence before passing the ex parte decree in favor of the plaintiffs/respondents and consequent refusal of not affording any opportunity to lead evidence in support of their contentions on the application for setting aside the ex parte decree and application for condo nation of delay.
2. The respondents/plaintiffs brought a suit for possession in respect of the suit house against the present/defendants. The suit in the first instance was dismissed for non-prosecution on 14-6-1997 but on the application of the respondents/plaintiffs it was restored on 1-4-1998 and the case was fixed for submission of the list of witnesses on 4-5-1998. On the said date, the suit of the respondents/plaintiffs was decreed ex parte due to absence of the petitioners/defendants. The petitioners/ defendants moved application, for setting aside the ex parte decree and an application for condo nation of delay in filing of such application was also submitted, but the same was rejected and the learned Appellate Court also declined to interfere in the judgment of the trial Court vide impugned order dated 31-5-2000, hence the present revision petition.
3. It is well established that the power of the Court in the matter of passing ex parte decree without recording evidence is discretionary. In this case the petitioners/defendants though were presentation the previous date, but could not make themselves available before the Court on 4-5- 1998 when the case was fixed only for filing the list of witnesses, so in the circumstances, it was incumbent on the trial Court to have recorded reasons whet it should decree the claim against the defendant after recording evidence or without recording evidence. No such decision is available on record, hence the discretion available to the Court seems to have been exercised not in a judicial manner and the A passing of ex parte decree is indicative of inflicting a punishment on the defendants for their failure to appear before the Court without forming a conclusion that such an absence was either the result that the defendants were having nothing in rebuttal to the claim of the plaintiffs/respondents or otherwise. In the authorities reported in PLD 1978 SC page 89 and PLD 1986 Peshawar 19, the ex parte decrees passed in the cases in similar circumstances have been declared as not sustainable in the eyes of law. Their Lordships of the august Supreme Court of Pakistan in the authority referred to above have laid down as under:-- "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, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, 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 decreed against the said respondents."
4. I also found that the application for condo nation of delay, though was submitted after delay of 4 days, but proper explanation was offered therein to the effect that the attorney of the defendants had gone to Karachi on 28-4-1998, hence on the date of hearing he was not present at the station and that he returned from Karachi on 17-5-1998. The tickets of the journey were also produced.
According to the attorney of the defendants, he came to know about the ex parte decree on 8-6- 1998 when he visited the trial Court and on the same day moved application for setting aside the ex parte decree. The learned trial Court in the circumstances, should have offered an opportunity to the defendants to lead evidence in support of their contention, but the application was straightaway rejected. On this score too, the learned trial Court has not properly dealt with the case in accordance with law.
5. For the aforesaid reasons, in my view, the impugned judgments/orders/decrees of the learned Courts below are liable to be reversed and I order accordingly. The case is remanded to the trial Court for proceeding in accordance with law and decision of the case on merits. The respondents/plaintiffs are also directed to pay an amount of Rs,1,000 as costs to the petitioners/defendants. The trial Court is directed to conclude trial in the case within four months.
' The revision petition is accepted accordingly.