This Constitutional petition seeks orders dated 2.1.2003 and 16.12.2003 passed by the learned Civil Judge and learned Additional District Judge, Gujrat, whereby application of the petitioners under Order IX, Rule 13 CPC and their revision petition were dismissed, respectively, to be declared as illegal, void and of no legal consequence.
2. Precisely, relevant facts are that petitioners filed an application under Order IX, Rule 13 CPC for setting aside ex-parte proceedings initiated against them vide order dated 4.11.2000 and ex parte decree dated 6.11.2000 before the trial Court on 30.4.2001. Petitioners pleaded in their application that Civil Revision No, 455/1986 was accepted by this Court on 26.9.2000 and the case was remanded to the trial Court for deciding Issue No, 8 afresh on the basis of evidence available on the record and while remaining the case, the parties were directed to appear before the trial Court on 31.10.2000. Since the trial Court presided over by Muhammad Akram Zaki, Civil Judge, Gujrat, stood abolished in the meanwhile, the case in post remand proceeding was entrusted by the learned District Judge to another Court, without notice to the petitioners and the transferee Court also did not issue any notice for appearance before it, they were not aware of the pendency of the suit there. The learned Civil Judge to whom the case was entrusted by the learned District Judge, vide his order dated 4.11.2000 proceeded against the petitioners ex-parte and thereafter through an ex-parte judgment and decree dated 6.11.2000 decided the matter in favour of the respondents.
Petitioners also claimed that on gaining knowledge of ex-parte proceedings/decree, they immediately moved an application for its setting aside primarily on the ground that the date on which they were proceeded against ex-parte, was not a date of hearing within the meaning of Order IX of the CPC.
3. Respondents contested the application filed by the petitioners by filing a written reply, which was dismissed without framing of issues and recording of evidence vide order dated 2.1.2003.
4. Petitioners aggrieved of the decision of their application dated 2.1.2003 filed a civil revision before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 16.12.2003. Petitioners thereafter filed instant Constitutional petition wherein notice was issued to the respondents out of whom Respondent No, 1 has appeared through his counsel, whereas the remaining respondents inspite of service opted not to defend this petition, as none has appeared on their behalf, hence they are proceeded against ex-parte.
5. Learned counsel for the petitioners submitted that no doubt this Court had directed the parties to appear before the trial Court on 31,10.2000, but on account of abolition of the trial Court, the case was distributed by the learned District Judge at their back and the transferee Court also did not issue notice regarding entrustment of the case to that Court. It was further submitted that though the Court, which proceeded against the petitioner exparte, was not the original trial Court, yet the Petitioners having not been proceeded against ex-parte on the date fixed by this Court i,e, 31.10.2000 they could not have been proceeded against ex-parte on an adjourned date, which was not a date of hearing within the meaning of Order IX CPC. Learned counsel for the petitioners further submitted that the petitioners had made out a sufficient cause for setting aside the ex- parte decree but both the Courts below have not properly comprehended their case. It is further added that ex-parte decree, can in no manner be justified from the evidence produced by the respondents, who, even in absence of the petitioners, were required to prove their case.
6. Learned counsel for Respondent No, 1 refuted the argruments of the petitioners, supported the concurrent orders of the two Courts below and urged that a Constitutional petition is not maintainable against a revisional order passed by the learned Additional District Judge, thus prayed that this petition may be summarily dismissed. It was also contended on behalf of Respondent No, 1 that petitioners intentionally flouted the orders passed by this Court while remanding the case, as they did not appear before the trial Court out of their own choice and thus they may not be permitted to reopen the case, concluded after consuming a long period spread over the period of more than a decade. He further submitted that application of the petitioners does not make out a sufficient cause for setting aside the ex-parte decree.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record., It is not disputed that this Court had directed the parties to appear before the trial Court on 31.10.2000. It is also not denied that the original trial Court stood abolished and case in post remand proceedings, was distributed by the learned District Judge to another Court without notice to the parties. It is also clear that petitioners were not proceeded against ex- parte on the date on which they were directed to appear before the trial Court i,e,, 31.10.2000.
Interim orders of the trial Court show that on 31.10.2000 Muhammad Khan plaintiff appeared alongwith his counsel, who filed his power of attorney and the learned Civil Judge to whom the case was entrusted directed registration of suit and adjourned the case to 4.11.2000 for further proceedings. On the next date of hearing i,e, 4.11.2000 the learned Civil Judge after waiting for the petitioners (defendants) ordered ex-parte proceedings against them and then on 6.11.2000 decreed the suit ex-parte. A pivotal point which requires determination is as to whether the Court trying suit was competent to proceed ex-parte against the petitioners on a adjourned date, which was not fixed by this Court for appearance of the parties and as to whether a date which was fixed for further proceedings, could be termed as "date of hearing" within the meaning of Order IX, Rule 6 CPC and the petitioners/defendants could be proceeded against ex-parte. Had the Court of first instance proceeded against the petitioners in the complained manner on 31.10.2000, the date fixed by this Court, there would have been some justification in the order, but on this date ex-parte proceedings were not initiated and instead these proceedings were taken on the next date, which was fixed for further proceedings. This Court in the case of Mst. Barkat Bibi and others us. Fateh Ali and others (PLD 1949 Lahore 432) while interpreting the word "hearing" held that where no investigation of any matter germane to the suit fell to be performed by the trial Court, and the only order which it could possibly have made was an order of an administrative nature, the Court could not dismiss the suit and the order thus passed was without jurisdiction, as the date was not fixed for hearing of the suit. The Honourable Supreme Court in the case of Muhammad Swaleh and another vs. Messrs United Grain & Fodder Agencies (PLD 1964 S.C. 97), interpreted the provisions of Order IX, Rule 6 CPC and mandated that ex-parte proceedings can be ordered only in respect of defendants basing on a date fixed in summons or on the date to which case stands adjourned. It was also observed that the Court taking proceedings on following day without notice to the defendants and on his failure to appear ordering ex-parte proceeding was not a valid order and consequently, ex-parte decree was set aside. The Honourable Supreme Court in another case of Police Department through Deputy Inspector-General of Police and another vs. Javid Israr and 7 others (1992 SCMR 1009) laid down the law that defendant who was proceeded against ex-parte and did not get the ex-parte order set aside, was not debarred from appearing and participating in the proceedings and while elaborating provision of Rule 6 of Order IX CPC, it was observed that right of every defendant and also the principle of natural justice; to be given a chance of hearing before any order is passed against his interest. The rules of procedure were held to be meant to advance justice and not to hamper the administration of justice. This Court again in the case of Board of Intermediate and Secondary Education, Sargodha vs. Muhammad Akram (1993 CLC 926) reproduced that ex-parte proceedings could not be taken against the defendant on account of his absence on a date which was not fixed for hearing. It was further held that date of hearing is a date on which judicial examination of dispute between the parties is to take place. In the instant case 4.11.2000 was not fixed for hearing of the suit, as on this date neither any written statement was to be filed, nor evidence of the parties was to be recorded and at the same time, it was not fixed for arguments. It is settled proposition of law that in order to find out if the exparte decree in favour of the respondent was passed in accordance with law, it had to be examined that if the date on which ex-parte proceedings were taken against the petitioners (defendants), was a date fixed for hearing. Since date fixed in this case was not meant for judicial examination of dispute between the parties no positive step towards further progress of the case was to be taken, date of 4.11.2000 cannot be termed as a date of hearing within the meaning of Order IX Rule 6 CPC.
8. Both the Courts below simply impressed by direction contained in the judgment dated 26.9.2000 passed in Civil Revision No, 455/1986, by this Court, did not consider the merits of the case and summarily dismissed the application, which under law, had to be decided after framing of issues and recording of evidence because dispute regarding sufficiency or insufficiency of cause for setting aside ex-parte decree is a matter of disputed facts, which could only be resolved after recording of evidence, but since in the case in hand ex-parte proceedings/decree was passed on a date which was not fixed for hearing of the suit, as noted above, I refrain from remitting this case back for decisions by the trial Court on this issue because the parties have already consumed a lot of time on this dispute. Resultantly, I am constrained to hold that both the ex-parte proceedings and decree against the petitioners were erroneously taken/passed and the matter should have been decided on merits of the case, ignoring technicalities, as held by the Honourable Supreme Court in the case of Police Department (supra). It goes without saying that in view of abolition of the original trial Court, learned District Judge should have given notice to the parties for their appearance before a different Court and if at all, it was not done, the transferee Court was under an obligation to issue notice to the party whoever was absent, on the day on which case came up before it.
9. Accumulative effect of the above discussion is that both the exparte proceedings and decree dated 4.11.2000 and 6.11.2000 passed by the learned trial Judge, are not maintainable being unauthorized and without jurisdiction, thus I accept the instant petition and issue a writ as prayed, with the result that suit filed by Respondent No, 1 shall be deemed to be pending before the trial Court and shall be decided afresh in terms of remand order passed by this Court vide judgment dated 26.9.2000 after hearing the parties within a period of our months. Parties are directed to appear before the trial Court on 27.4.2004. There will be no order as to costs.