RAHEEM STEEL RE-ROLLING MILLS Versus KARIM AZIZ INDUSTRIES (PVT.) LTD

1. This appeal under Order XLIII, Rule 1(d), Civil Procedure Code by the defendants is for setting aside of Order dated 23‑4‑1987 of Senior Civil Judge of District Attock, rejecting an application under Order IX, Rule 13 Civil P.C., to set aside a decree passed ex parte on 31‑7‑1986.

2. Plaintiffs sued the defendants for the recovery of Rs.22,97,700 with interest at the rate of 14 per cent per annum. Suit was instituted in the Court of Senior Civil Judge Attock. Defendants were served. They appeared in Court and were asked to file their written statement. For some dates of hearing, suit was adjourned for them to file their written statement. As they failed to submit defence despite opportunity, trial court took action under Order VIII, Rule 10, Civil Procedure Code, struck off the defendants' defence and proceeded against them ex parte. In the absence of the defendants, Court recorded ex parte proof and relying thereon gave decree to the plaintiffs for the amount claimed in the suit with interest.

3. On 20‑12‑86, defendants put in an application for setting aside of the ex parte decree stating that service upon them was inadequate and that for the grounds stated in the application they had sufficient cause for their non‑appearance in the civil suit. Plaintiffs opposed the application submitted that it was barred by time and that grounds stated therein were incorrect. Substantial defence was that the defendants had not made out sufficient cause for setting aside of the ex parte decree. It may be observed that the defendants had also filed an application under section 5 of Limitation Act for condonation of delay. Plaintiffs traversed the contents of this application also. On 23‑12‑1986, application for setting aside the ex parte decree came up for hearing before the Senior Civil Judge. It was ordered that it be registered and notice be issued to the respondents for 22‑1‑1987. On 22‑1‑1987, plaintiffs submitted their written reply. As the original file had not been received, it was requisitioned for 5‑2‑1987, when the parties were also directed to address preliminary arguments. Order recorded on 22‑1‑1987 show that Presiding Officer was on leave and the proceedings were taken by duty Judge. On 5‑2‑1987, the case was again adjourned to 22‑2‑1987 for the case file and also for hearing preliminary arguments. In the order passed on 22‑2‑1987, Senior Civil Judge observed that the points raised in the pleadings ,could not be decided without evidence, and proceeded to frame following three issues:

(1) Whether the application is time‑barred, O.R.

(2) Whether there are sufficient grounds to set aside ex parte decree, O.P.

(3) Relief. and postponed the case to 23‑4‑1987 for evidence of the parties. By the same order, court prohibited the applicants from transferring their Mills. On 23‑4‑1987, when the case came up for hearing, the defendants who were applicants before the court below, requested for adjournment. Learned Court found that no ground for further adjournment was made out and proceeding under Order XVII, Rule 1(3), Civil Procedure Code dismissed the petition. It is against this order that the defendants, through Mr. S.M. Nasim. Advocate, have come up in first appeal to this Court. Mr. Muhammad Afzal Siddiqui, Advocate, who had to appear for the respondents, did not turn up and the appeal, therefore, was heard ex parte. It may be noted that after Mr. S.M. Naseem learned counsel for the appellant had concluded his address and I had announced the Order allowing the appeal, Mr. Muhammad Afzal Siddiqui appeared in Court at about 10‑30 a.m. In this circumstance, I had not the advantage of hearing the arguments from the respondents' counsel.

4. On behalf of the appellants, it was contended that the action taken by the trial Court in refusing adjournment and closing the appellants' evidence in pursuance to the provisions in Order XVII, Rule 1 (3) (Lahore amendment) was erroneous. In this behalf, it was submitted that the Court was also wrong in being greatly influenced by the alleged earlier defaults of the defendants in the course of the civil suit which had culminated in ex parte decision against them. Main attack on impugned decision was that circumstances of the case under consideration called for accommodation of a request for another adjournment. In support, learned counsel referred to Mst. Zetoon Begum and 2 others v. Muhammad Ilyas and 6 others P L D 1971 Lah.' 143, Lal v. Ghulam Muhammad P L D 1975 Lah. 385, Rahim Bux v. Nazir Khanam and another 1980 C L C 595, M/s Ideal Departmental Stores v. United Bank Ltd. 1985 C L C 2559, Musa and others v. Faqiria and others 1985 C L C 2929, Dr. Abdul Waris v. Javed Hanif and 6 others P L D 1986 Lah. 381, Mian Zafar Iqbal and 5 others v. Bashir Ahmad Khan and another P L D 1987 Lah. 650.

5. This appeal raises two main points for consideration; one is in regard to the application of Order XVII, Rule 1(3) (Lahore amendment) and second is in regard to legality as also the propriety of the action taken by the learned Judge below in closing the evidence and dismissing the application for setting aside of the ex parte decree.

6. On consideration of the provisions of law and the decided cases, in my judgment, this appeal is obviously to succeed for two reasons: Firstly, as is evident from para 2 of the impugned order, the learned Judge was to a great extent influenced by the previous lapses of the defendants in the civil suit. In the aforesaid para, he referred to the dates given to the defendants for their 'written statement and from these dates of hearings, inferred that the conduct of the defendants was not clean but was mala fide and that the desired to further delay the proceedings against them. In decidin whether sufficient cause was made out for further "adjournment, previous defaults, if any, were not to be taken note of. In Musa Khan and others (1985 C L C 2929) it was observed that 'it is also well‑established that the previous default, if any, is not to be taken note of while considering the question under Order XVII, Rule 1(3), C . P. C . or rule 3 thereof as to whether a party is entitled to grant of further opportunity. Two decisions of the Supreme Court in Seth Shivrattan G . Mohatta and another v . Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669, Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others P L D 1966 SC 461 also, assist in this behalf. As for the application of Order XVII, Rule 1(3) is concerned, it is enough to say that by its own force it does not apply to proceedings for setting aside of the ex parte decree. Its plain language indicates that it applies to adjournments in the suit. Obviously, proceedings in the suit come to an end when a decree is passed, be it ex parte or contested. By means of proceedings taken under Rule 13, Order IX, ex parte decree may be set aside and in that eventuality, the civil suit which had culminated in the ex parte decree stands revived. It is evident that in case application under rule 13 succeeds it results in the status quo ante and parties are relegated to the position at which the proceedings were taken ex parte. Proceeding consequent on an application for setting aside a decree are not merely a branch of the suit which is terminated when the ex parte decree is passed and the suit does not revive if at all only after the proceedings in the application are terminated successfully. It, therefore, follow that the proceedings taken by the defendants were not proceedings in the suit, but were distinct proceedings which might have had the effect of causing a rehearing of the suit, which in the present case had finally ended in the leaving the ex parte judgment to stand as it was. See 'Piroj Shah & Co. v. Qarib Shah (A I R 1926 Lah. 379). This, however, does not solve the whole issue. Adjournment is in the discretion of the Court. There is no authority for a genera notion that parties whose cases are fixed before Courts have a sort of right to obtain adjournments without any sufficient reason being given therefor. On my examination of various provisions of Civil Procedure Code, it is clear to me that the proceedings under Order IX, are proceedings of an original nature and by virtue of section 141 of the C . P . C . the procedure provided in the Code in regard to suits is to be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. After holding that Order XVII, Rule 1(3) also applied to the proceedings of the present kind, next question which arises for consideration was whether after declining the adjournment evidence could be closed and application for setting aside of the ex parte decree dismissed, In Pirzada Amir Hassan etc. v. Mrs. Shamim Shah Nawaz etc. 1984 C L C 3080 a D.B. judgment, it was held by this Court that such an action could be taken by the Court. To speak with respect, this decision enunciates correct statement of law with which I respectfully agree. Otherwise, also it being a Division Bench judgment was binding upon me sitting alone. Next question is about the propriety of the action. As observed above, adjournment is in the discretion of the Court. It can accept the request and grant the adjournment. It can also refuse the request and decline adjournment. However, like all judicial powers exercise of discretion must be judicial and not unjudicious. Undeniably, adjournment can be allowed for sufficient cause only and cannot be granted as a matter of course on the mere asking of litigant party. What is sufficient cause has not been defined in the Code and rightly so because it is always dependent upon circumstances of each case. In the present case, the cause given for seeking adjournment was that the defendants were busy in some other affairs, nature whereof however was not disclosed. From the records, it appears that request for adjournment was made orally by the learned counsel for the defendants who were not shown to be present in Court on that day. After settlement of issues on behalf of defendants, this was the first request for adjournment. Ex parte decree covered lacs of rupees. Defendants suffered ex parte decree in the result of their not filing the written statement in time and also on the basis of their non‑participation in the subsequent proceedings in the suit. One adjournment to the defendants for adducing evidence was conducive to the cause of justice. Judicial despatch and quick decision of the cases are, no doubt, a laudable object and a good thing also, but justice is still better. In Mian Zafar Iqbal and 5 others (P L D 1987 Lahore 650) it was observed "quick disposal is one thing. But it is subordinate to arriving at a just decision. Just decision without allowing a single opportunity to a plaintiff to have his say is hardly likely to come about." Anxiety of the Courts of justice has always been to lean in favour of adjudication on merits unless the litigant by his, own conduct makes it impossible for the Court to proceed further in that direction. Human lapse is always there, but unless it was of a grave magnitude attracting penal action which in the present case was of dismissal, Court may take a lenient view of the lapse by allowing an opportunity for the decision of the controversy on merits.

7. On a review of all the circumstances, nature of the decree and the amount involved therein, I think, it was no justice to have declined adjournment. To me, it would have appeared to be a better exercise of jurisdiction if the learned Judge had allowed one more opportunity to the defendants for proving their case set up in the application for setting aside of the ex parte decree. As observed, general rule is decision on merits. Ex parte decisions and the dismissal in default should be an exception.

8. For the reasons given above, appeal is allowed, impugned decision dated 23‑4‑1987 of learned Court below is set aside and the case remanded to him for deciding of it afresh. Learned Judge shall give one chore opportunity to the defendants to adduce evidence and in case they fail, law shall take its own course without any further leniency. As the defendants were a little negligent in putting up their defence they shall pay Rs.2,000 as costs to the plaintiffs before they are permitted to let in their evidence. Before leaving the case, it may be observed that the defendants shall conclude their evidence within three months without fail. Similar period shall also be allowed to the plaintiffs for rebuttal evidence and the trial Judge shall complete the trial within six months. Parties have been directed to appear before the Court below on 30‑1‑1988. Records be sent down. Costs of this appeal shall be borne as incurred.

9. A. A./K‑63/L Case remanded.