AZIZ ULLAH KHAN Versus ARSHAD HUSSAIN

The facts of the case are that respondents 1 and 2, Syed Arshad Hussain and Syed Mumtaz Hussain, filed a suit in 1963, for a declaration to the effect ; that they were grantees in possession of the suit land to the exclusion of the petitioners as well as respondent No. 3, Kabir Khan, with prayer, by way of consequential relief, restraining the defendants (in the suit) from interfering with their possession.

The case was first laid before the learned trial Court on 26‑4‑1963 when notices were directed to be issued to the defendants for 22‑6‑1963. On the said date petitioners 1 and 2 were represented by their counsel, Khan Sher Khan, Pleader, while petitioners 3 to 5, according to the order of the trial Court, did not appear in spite of service and, as such, were proceeded against ex parte. Since respondent No. 3, who was defendant No. 6 in the suit, had not been served upon, therefore, fresh notice was directed to be issued to him at the address to be furnished by respondents 1 and 2.

2. The record of the case shows that thereafter since the learned trial Judge had been transferred, therefore, the case was sent to the learned District Judge, Lyallpur, for necessary orders. After the case had been entrusted to another Civil Judge, the same was taken up by him on 5‑9‑1963 when the petitioners 1 and 2 were represented through Khan Sher Khan, Pleader and petitioners 3 to 5 were marked absent as before. The respondent No. 3 had not been served upon for the said date, therefore fresh notice was directed to be issued to him for 2‑10‑1963 and the case was adjourned for the said date. On that date petitioners 3 to 5 were again marked absent as before respondent No. 3 was directed to be served upon through substituted service for 4‑11‑1963. On the said date respondent No. 3 was also proceeded against ex parte as according to the learned Court he did not appear in spite of service. The next date was fixed as 19‑11‑1963 for written statement of petitioners 1 and 2.

It is interesting to notice at this stage that the written statement was filed by all the petitioners, Nos. 1 to 5, as well as respondent No. 3. It is available at page 135 of the lower Court's file. The written statement has also been signed by Syed Laqa Haider Zaidi, their learned counsel. The learned trial Court, however, marked petitioners 1 and 2 present, represented through their learned counsel, and petitioners 3 to 5 and respondent No. 3, all were marked absent as before. It was not, at all, noticed that the written statement had been filed by all the defendants‑petitioners and respondent No. 3 together. The case was adjourned to 28‑11‑1963 for replication. On the said date, again, petitioners I and 2 were marked present and nothing has been shown in the order as to whether We remaining petitioners as well as respondent No. 3 were present or not, or as to whether they were represented by any counsel on that date or not. On the said date, after the issues were framed, the case was adjourned to 27‑1‑1964.

3. The learned Civil Judge had, however, been transferred before the said date of hearing and the record shows that the case was fixed for 27‑2‑1964 by Ahmad, Khalilur Rehman and not by any Court. The case was entrusted to the successor Court thereafter and the same was directed to be entered in the register and to be put up on the date of hearing fixed by the Ahmad. On the said date, petitioners 3 to 5 and respondent No. 3 were again shown absent as before and the case was adjourned to 14‑5‑1964 for evidence of the parties. On the said date it was adjourned to 13‑7‑1964, as the number of the case could not be reached. It was then adjourned to 5‑10‑1964 at the instance of petitioners 1 and 2 while petitioners 3 to 5 and respondent No. 3 were shown absent as before. The record further shows that the case was again adjourned at the instance of petitioners 1 and G for 5‑11‑1964, when the same again could not be taken up for hearing on account of the absence of the said petitioners, who could not produce their evidence. The case was ultimately fixed for 9‑12‑1964, when again petitioners 1 and 2 failed to appear and adduce evidence. Since nobody appeared on behalf of petitioners 1 and 2, therefore, they were proceeded against ex parte and ex parte decree was awarded in favour of respondents 1 and 2 and against the petitioners and respondent No. 3.

4. Thereafter the petitioners made an application under Order IX, rule 13, C. P. C. for setting aside the ex parte decree, but the same was rejected by the learned trial Court. Their appeal before the learned Additional District Judge has also failed.

5. The details of the proceedings held on various dates proceeding the ex parte decree on 9‑12‑1964, has been given above in order to show that since petitioners Nos. 3 to 5 did not appear on the first date of hearing i.e. 22‑6‑1963, in spite of service, therefore, they were proceeded against ex parte. It has been contended vehemently that no service was effected upon them for the said date. In order to find out the truth in this regard necessary record of the case was summoned but the part of the record pertaining to the service matter has not been furnished on the ground that the same has been destroyed. As such it cannot be said with certainty as to whether petitioners Nos. 3 to 5 were actually served upon for the said date or not and the order passed by the learned trial Court under Order IX, rule 6(1)(a), C. P. C. was correct or not. However, the case was adjourned under Order XVII, rule 1, for the next date of hearing on the ground that respondent No. 3 had not been served upon for the said date. Respondent No. 3 as shown above, was also proceeded against ex parte on 4‑11‑1963. All the said orders in regard to ex parte proceedings obviously were passed under Order 1X, rule 6(1)(a), as the defendants did not appear in the Court in spite of service. It is admitted that ex parte decree had not been passed by the Court under Order 1X, rule 13 against any one of the defendants in the suit at the time when the case was adjourned for filing the written statement which was actually filed on 19‑11‑1963 by all the defendants together Le. petitioners 1 to 5 and respondent No. 3. According to law the ex parte order against the defendants did not mean that they could not participate in the further proceedings of the case. They could not be considered to be dead in relation to the future proceedings. A party cannot be stopped from participating in the proceedings simply because of its non‑appearance on the first or some adjourned hearings. A party proceeded against ex parte may apply under rule 7 of Order IX, for setting aside the ex parte order and if the learned trial Court is satisfied that good cause has been shown then the ex parte order may be set aside. Even if no such application is made and no good cause is shown for setting aside the ex parte order that does not mean that the defendant proceeded against ex parte is debarred from appearing and participating in the further proceedings. All that the provision as contained in rule 7 of Order IX, requires is that in case of good cause having been shown the ex parte order may be set aside but there is no provision whereby an absentee defendant cannot appear and participate in the adjourned proceedings. The whole scheme of the Code provides for substantial justice to be done after giving full opportunity to the parties to the suit. Reliance in this respect can be placed upon Ghulam Muhammad and others v. Mst Irshad Begum and others P L D 1964 Lah. 782 and Abbas Ahmad Khan v. Inayat Ullah (C. R. No. 465 of 1964), decided on 15th of March 1967, by Mushtaq Hussain, J. In the latter case the same point was involved as in the former. After having relied upon the case as reported in Ghulam Muhammad and others v. Mst. Irshad Begum and others, it was held that a defendant proceeded against ex parte does not become non‑existent and can appear and participate in the adjourned proceedings. In the presen case it is admitted on record that the petitioners and respondent No. 3, all submitted their written statement together on 19‑11‑1963 but in spite of that petitioners Nos. 1 and 2 alone were marked present while the remaining were shown absent on account of the ex parte order against them. As discus sed above there was nothing in law to prevent them from appearing and parti cipating in the adjourned proceedings. The learned trial Court appears to have been under the impression that since petitioners Nos. 3 to 5 and res pondent 3 had been proceeded against ex parte therefore in spite of their filing) the written statement they could not be marked present or could not join the proceedings unless ex parte order was set aside. The record further) shows that one of the petitioners, Muhammad Arif submitted his application under Order IX, rule 7 for setting aside the ex parte order against him on 5‑10‑19;64 to which date the proceedings in the case had been adjourned at the instance of petitioners Nos. 1 and 2. This application was rejected on the ground that since be bad been served upon for 22‑6‑1963 and in spite of that did not appear, therefore there was no good cause for setting aside the ex parte order. The question which arises here for consideration is as to whether Mohammad Arif, the petitioner could be marked absent and could not be permitted to join the proceedings on 5‑10‑1964. The record shows that he was not even shown to be present on the said date though the application was presented through his counsel Khan Sher Khan, Advocate. As shown above, the issues in the case were framed on 28‑11‑1963 when the record at least is silent about the presence or otherwise of petitioners Nos. 3 to 5 and respondent No. 3. According to law petitioners Nos. 3 to 5 and respondent No. 3 though proceeded against ex parte could appear and participate in the adjourned proceedings at any stage.

6. The learned trial Court after having framed the issues on 28‑11‑1963, adjourned the case for evidence to 27‑1‑1964 but before the said date the learned Civil Judge was transferred, and the case was fixed for 27‑2‑1964 by Ahlmad, Khalil‑ur‑Rahman, and not by any Court. The case was entrusted to the successor Court by the learned District Judge, as mentioned above and was directed to be put up on 27‑2‑1964. This order was passed on 1st of February 1964 by the successor Court to which the case had been transferred. It is clear on record that none of the parties had appeared on the said date. However, the plaintiff‑respondents Nos. 1 and 2 and petitioners Nos. 1 and 2 were represented before the successor Court on 27th of February 1964 to which date the case had been adjourned. Petitioners Nos. 3 to 5 and respondent No. 3 did not appear and were, therefore, shown absent, as before.

7. The main question which needs determination at this stage is as to whether the notice was necessary to be issued to the absentee defendants for 27th of February 1964 or not. When the case was put up before the successor Court on 1st of February 1964, no notice had been issued to any of the parties for that date while the case was directed to be put up on 27th of February 1964. It has been argued on the basis of section 24(a)(2), C. P. C. that it was obligatory for the absentee defendants to appear before the successor Court on 27‑2‑1964 to which the case had been transferred by the learned District Judge. The record does not show at all that the learned District Judge had transferred the case to the successor Court in the presence of the parties or at least they were otherwise directed in compliance with his order to appear before the successor Court on a particular date. After the Civil Judge was transferred before 27th of January 1964 for which date the case was fixed for evidence, the case was adjourned to 27‑2‑1964, by his Ahlmad and not by any Court. It is an admitted position in law that the note given by the Ahlmed to the effect that the case was adjourned to 27‑2‑1964, cannot be treated to be an order having been passed by a Court. Subsection (2) of section 24(m requires that where a suit is transferred from one Court to another otherwise than on the application of a party, parties thereto shall appear before the Court from which the suit is to be transferred on the date already fixed for their appearance before that Court and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit is to be transferred, either on the same date or at least the date as may be reasonable. The circumstances as discussed above do not show that after the Civil Judge was transferred before 27th of January 1964 the parties to the suit ever appeared before any Court which directed them to appear before the transferred Court on a particular date. If the absentee defendants who had joined the proceedings on 19‑11‑1963, bad been directed by a Court from which the case was transferred or even by any Court to appear on a particular date before the successor Court then they were bound under the provision of section 24(a)(2) to appear before the said Court failing which they could be proceeded against ex parte. It has been argued that in the presence of the said provision no notice was required to be issued to the absentee defendants for their appearance before the Court to which the case was transferred. It is further argued on the basis of Malik Kamal Din v. Malik Muhammad Bashir and others P L D 1952 Lah. 456 that after the summons had been received by the defendants in the suit, they were bound to pursue the matter and keep themselves in touch with the proceedings either personally or through their counsel and no fresh intimation was required to be issued to them in relation to the transfer of the case. I am afraid this contention has no force, nor the case cited above is applicable to the facts of the present case. In that case the difference between the word "summons" and "notice" was under discussion and further as to whether the summon in a case were required to be issued again to the parties during the proceeding. It was held that the word 'summon' used under Article 164 of the Limitation Act refers to the first summons to be issued to the defendant after the institution of the suit. It was further held that the Code does not approve for issue of subsequent summons for appearance, while holding this the learned Judges of the High Court also made an observation that subsequent intimation to the parties in respect of a transfer of a case from one Court to another is made by what is called a "notice" and that the two terms are substantially different. It has nowhere been held that no notice is required to be issued to the absent parties on transfer of a case by the transferee Court. The provision as contained in section 24(,a!(2), C. P. C. nor as contained in para. 6, Chapter X(II, Volume 1 of High Court Rules and Orders was under discussion in the case referred to above. Para. 6 provides as follows :‑

"6. When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred."

8. In the present case the case was obviously transferred by an administrative order by the learned District Judge before whom the parties were not present at the time when he passed the order. There is also nothing on record to show that the order of the learned District Judge stipulated any information to be conveyed to the parties for the next date of hearing fixed before the transferee Court. Section 24(a)(2) also provides that when a case is transferred by one Court to another and the parties are present before the Court then they have to appear before the transferee Court on the date so fixed by the Court from which the case has been transferred. I do not find any conflict between the provisions as contained in section 24(a)(2), C. P. C. and para. 6 of Chapter X[II of Volume I of High Court Rules and Orders. Both the provisions require that the parties should be duly informed about the transfer of the case. It means that they cannot be condemned unheard by the transferee Court. Similar view was taken in Aamat Begum v. Chief Settlement and Rehabilitation Commissioner, Pakistan P L D 1962 Lah. 1041. It was held while relying upon Krishan Lal Malhotra v. Madan Lai and others P L D 1950 Lah. 82 that when a case is transferred by an administrative order from one Court to another while ex parte proceedings as pending against the defendant, the latter is entitled to notice after transfer inasmuch as he is still a party to the litigation within meaning of para. 6 of Chapter X111, Volume I of High Court Rules and Orders and when such a notice is no given the proceedings taken against the defendants since transfer will b liable to be set aside.

9. It was held in Ram Das and another v. Habib Ullah A I R 1933 All. 178 (1), that it would be open to a District Judge to proceed suo motu and transfer a case from one Court to another Court under section 24, C. P. C. competent to try it but when he is moved by one party, he is bound to issue notice to opposite party and hear such party if it desires to be heard. The tenor of the whole authority does not show that when the case is transferred by a District Judge from one Court to another In the absence of the parties then the transferee Court would proceed with the case without issuing notice to the absentee patties. It has been argued that in the presence of an ex parte order against a particular party, no notice is required to be issued by the transferee Court, and the said party cannot participate unless the ex parts order is set aside. As discussed above, the party against whom ex parts proceedings have been taken, is not non‑existent or dead for all further proceedings in the case. This view gets support from Ghulam Muhammad and others v. Mst. Irshad Begum and others referred to above and my learned brother A. R. Shaikh, J. has discussed this aspect of the case in full detail and I need not dilate upon it further. When the absentee defendant against whom ex parte proceedings have been taken at a particular stage is not dead or non‑existent as far as the future proceedings are concerned then it becomes obligatory for the transferee Court to issue notice, to him. It has been further argued on the basis of Mian Kamal Din v. Malik Muhammad Bashir and others as referred to above, that if the absentee defendants wanted to join the proceedings before the transferee Court then they should have been quite vigilant to know about the progress of the case in order to enable them to appear before the said Court. It may be noticed that observation to that effect was made by the learned Judges, in the circumstances of that case. On 29th of July 1947, defendant No. 11 in that case had still remained un served, and another notice was issued to his counsel for appearance for 6th of October 1947. Meanwhile Ch. Azam Ali, Civil Judge was replaced by Ch. Muhammad Anwar with powers II Class Civil Judge and as the suit could not be tried by him he awaited for his 1st Class powers to be conferred by the High Court. These powers came sometime before the 14th of January 1948, and on that date an order was passed taking ex parte proceedings against defendant No. 11, appellant before the High Court in the Letters Patent Appeal. The above facts would show that the case in which defendant No. 11 was party remained in the same Court, while only Presiding Officer, was replaced by another. Since the case remained pending in the same Court, therefore, it was observed that it was the duty of the appellant before the High Court to keep himself in touch with the proceedings. In the present case after the transfer of the Civil Judge before 27th of January 1964, the case was transferred to another Court by the orders of the learned District Judge and on receipt of the case no notice was issued to the absentee defendants probably on the ground that since they had been proceeded against ex parte, therefore, no notice was required to be issued to them since the absentee defendants did not appear before the learned District Judge, who transferred the case to another Court, nor they were required to appear before him and nor any intimation was required to be sent to them with regard to transfer of their case to another Court, therefore, it was not possible for them to know about the Court to which the case had been transferred. According to section 24‑A (2), C. P. C. and the relevant rule of High Court Rules and Orders, as referred to above, if the order of the learned District Judge transferring the case had been passed in the presence of the absentee defendants or they had been intimated in accordance with that order, then in case of their absence before the transferee Court they could be lawfully proceeded against ex parte. If the absentee defendant can join the proceedings at the subsequent stage even after ex parte order has been passed against him, as also held in Messrs Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan through Excise & Taxation Officer 1970 S C M R 251, then how it corn be presumed that in the absence of any intimation duly furnished to him with regard to transfer of the case from one Court to another he can be proceeded against ex parte simply on the basis of ex parte order already passed against him. His right to join future proceedings implies that after the transfer of the case from the Court where such proceedings are pending if the same have not been transferred in his presence or without intimation to him, then he cannot be proceeded against ex parte unless duly served upon with regard to transfer of the case to the successor Court. In this view of the matter the contention of the learned counsel for the respondents, that since there is no clear provision in the amended law to issue notice to the parties after the case has been received on transfer, therefore, said notice cannot be issued, has no substance. As laid down in 1970 S C M R 251, the rules of procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities.

10. The above discussion would show that it was imperative for the transferee Court to issue notice to the absentee defendants after the case was received by it on transfer and, as such, proceedings from 27‑2‑1964, including the ex parte decree, held in their absence, they being the necessary party to the suit, cannot be maintained and the same are hereby set aside. The result would be that the proceedings from that stage would be started afresh by the learned trial Court.

11. The learned counsel for the parties have raised some other contentions during the arguments, but I am not inclined to discuss them at ibis stage, as the impugned judgments are liable to be set aside in view of the discussion made above which clearly shows that the learned trial Court failed to exercise the jurisdiction rested in it be acted in the exercise of that jurisdiction illegally and with material irregularity.

12. For the aforesaid reasons the civil revision is accepted with costs and the impugned judgments are hereby set aside. The case is remitted to the learned District Judge, Jhang, to be entrusted to the competent Court for trial. The parties are directed to appear before the learned District Judge, Jhang tin 2‑9‑1974,

K. B. A. Petition accepted.