MST. GUL BIBI Versus HAMESH GUL AND ANOTHER

On her failure in getting the ex parte decree set aside Mst. Gul Bibi defendant‑vendee in a pre‑emption suit moved an appeal before the District Judge, Peshawar but she bad no luck. The arguments adduced on her behalf, namely, that she was a pardahnashin lady and, therefore, could not attend the Court on the date fixed for hearing and as such her absence was not intentional was repelled with the remarks that she had not appeared personally on any hearing. Still dissatisfied Mst. Gut Bibi moved the present civil petition and it has been urged on her behalf that ex parte proceedings could not be ordered against her because the date on which she and her counsel were found absent was a date set for filing the list of witnesses and as such not a date fixed for hearing. Again the learned trial Judge was not correct when he dismissed her application for setting aside the ex parte decree with reference to Order VII, rule 19 of the C. P. C. for such application vas neither a plaint nor an original application and as such it was not at alb necessary for her to give an address at which service of notice or other process could be made on her. Furthermore, notwithstanding the impugned orders on her miscellaneous application she could move an appeal against the ex parte decree as she did and that present revision petition for reversal of the ex parte decree was also in order.

2. A reference to the record of the suit will show that Hamesh Gul brought a suit for pre‑emption against Mst. Gul Bibi alleging that he had a superior right of pre‑emption and that the market value of the land was not more than rupees one thousand and for that reason ostensible price of rupees two thousand was not fixed in good faith or paid. The addresses of the parties were filed and that as many as nine issues were settled, including those which related to the claim of exemption; superiority of the plaintiff's right; and the market value of the land. It may be mentioned that no sooner the written statement was filed on behalf of the petitioner, issues were settled and a date for filing of the list of witnesses was set. However, on that date the Presiding Officer was not available because he bad handed over charge and it was his Reader who set the case for 27‑6‑74 when the defendant‑petitioner was found absent; her counsel was also not present; and no list of witnesses could be filed on her behalf. It was on this date that the Court ordered ex parte proceedings and without recording evidence decreed the suit of the plaintiff on payment of Rs. 2,000 allowing the parties to bear their own costs. I am told by Mr. Abdul Bari Khan, the learned counsel for the respondent at the Bar that though his client had alleged that the market value was rupees one thousand, it was agreed that the pre‑emption money should be assessed at rupees two thousand so as to save them from the botheration of producing evidence in the case.

3. I have carefully gone through Order VII, rule 19 of the C. P. C. as inserted by Law Reforms Ordinance, 1972 and am inclined to agree with the contention urged on behalf of the petitioner that the miscellaneous application moved by Mst. Gul Bibi for setting aside the ex parte decree was neither a plaint nor an original application. It was a miscellaneous application given for the restoration of the case. But even if one was to treat it as original petition, question arises as to whether the trial Court bad to dismiss the same for the omission that it had noticed. It is true that Order VII, rule 21 provides that where a party fails to file an address for service, such party shall be liable to have his suit dismissed or his petition rejected by the Court but it goes without saying that Courts are always indulgent towards pardahnashin ladies and counsel appearing in subordinate Courts and therefore, call upon them to supply the omission and take a drastic action like dismissal of a suit or petition only when the needful is not done despite requisition made in that behalf. Here in this case no such thing happened and the Court proceeded to reject the application in haste without caring to notice that in the miscellaneous petition made by the petitioner there were particulars, which could be treated as her address, and again she was not obliged to file the address of the other parties in the case for service. As a matter of fact all the addresses were there on the record of the suit, which had been decided against her ex pane.

4. There is also a lot of force in the argument urged on behalf of the petitioner that the provision of Order XVII, rule 2, C. P. C. read with Order IX could not be invoked in the circumstances of the present case by the learned trial Judge for the date that was set was a date on which the parties were to file the list of their witnesses and as such it was not a date of bearing. A reference to Order XVII, rule 2 will show that the action contemplated by the rule can only be taken "where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear" That there is a distinction between a date fixed for hearing and any other date fixed in tire case will stand fully demonstrated if one refers to Order XVII, rule 3, wherein other situations of default have been enumerated. The rule says; "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default proceed to decide the suit forthwith". If every date fixed in al case was to be a date of hearing, quite obviously there was no need for making rule 3 aforementioned.

5. As already observed, this was a contested suit where as many w nine issues were settled and even if it is admitted that the petitioner had deprived herself of the privilege of producing witnesses because of Order XVI, rule i of the C. P. C. the duty of the plaintiff was plain. He should have produced his own evidence. He had to prove that he had a superior right and without satisfying the Court on the point he got a decree to the prejudice of the petitioner. If the plaintiff had produced some evidence, petitioner might have been successful in establishing that the claim was unfounded.

6. On the view of the matter that I take I am clear in my mind that Order XVII, rule 2 was not attracted to the facts of the present case and that ex parte decree without recording evidence is not sustainable for that reason alone. If Order XVII, rule 2 is not applicable to the case, the amendment in Order IX, rule 6 that where the defendant is being proceeded against ex parte an order can be made without recording evidence will also become inapplicable. In this context I should like to refer to the observations of Cornelius, C. J. (as his Lordship then was) reported in East and West Steamship Co. v. Queensland Insurance Co. (P L D 1963 S C 663):

"There can be no doubt of the duty of the Court to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party."

That Courts have ample discretion in the matter to set aside ex parte decree stands reinforced by the authority of the Supreme Court in Muhammad Amin and 4 others v. The Chief Administrator of Auqaf, West Pakistan Lahore (1970 S C M R 637), wherein despite several lapses of the defendant ex parse order was set aside on payment of costs by a learned Single Judge of the High Court and their Lordships observed:

"We feel that the view taken by the High Court in the matter in the exercise of its discretion, does not merit interference on our part."

7. As a net result of the foregoing discussion the petition is accepted and ex parte decree is set aside on payment of Rs. 50 by way of costs. The petitioner and for that matter if the respondents so desire may file list of witnesses within seven days of the receipt of the file by the Senior Civil Judge. Parties shall appear before the Senior Civil Judge, Peshawar on 29.4‑1976 who can, it may be added, transfer the case to any other Court having powers in the matter.

S. A. H.

Petition accepted.