Pakhtunkhwa Highway Authority through Managing Director Peshawar Versus Arshad Sher Ali

Order

Shakeel Ahmad, J .--- This is a revision from an order dated 11.10.2024 of the learned Additional District Judge-XII, Peshawar, whereby and whereunder the petitioner was directed to deposit diet money for the official witnesses within 03 days and also to ensure availability of his private witnesses for next date of hearing i.e. 28.10.2024.

2. The facts of the case, in brief, are that the plaintiff/ petitioner brought a summary suit for recovery of Rs. 2,304,000/-. It was stated in the plaint that on 01.01.2024 the defendants/ respondents issued a cheque bearing No.006896015 amounting to Rs. 2,304,000/-, but it was bounced when presented to the bank concerned for encashment. Pursuant to the summons issued by the learned trial Court, the defendants/ respondents put their appearance, submitted vakalatnama on 07.08.2024 and the case was adjourned to 24.09.2024. On the said date, they (defendants/ respondents) failed to appear before the learned trial Court and, hence, were placed ex-parte. Vide order dated 11.10.2024, the plaintiff/ petitioner was directed to deposit diet money for the official witnesses within 03 days and thereafter to serve the official witnesses. He was further directed to ensure availability of his private witnesses for recording their evidence. Being aggrieved of the same order, the plaintiff/ petitioner has filed the instant petition.

3. It was mainly argued by learned counsel for the petitioner that instead of recording ex-parte evidence, the learned trial Court should have decreed the suit, and prayed for setting aside the impugned order dated 11.10.2024.

4. Heard and record perused.

5. In a suit filed under Order XXXVII, C.P.C, which deals with summary suits for recovery of money, the necessity of recording the evidence of the plaintiff, even if the defendants have been placed and proceeded against ex-parte, is governed by the principles of natural justice and fairness in procedure. Order XXXVII, C.P.C allows for a summary judgment based on the presumption of liability (where a suit is based on a negotiable instrument or other clear evidence), but, it does not eliminate the requirement of evidence entirely. Even, if the defendants are placed ex-parte, the Court can still demand sufficient evidence from the plaintiff to prove the claim. This is important for ensuring the judgment is based on solid proof. Even, if the case of the plaintiff, in a summary suit, is correct, the plaintiff must prove it with sufficient evidence before the learned trial Court to scrutinize the genuineness of his claim. It is emphasized that ex-parte decrees in summary suits should not be passed automatically, but should be based on evidence. It is further emphasized that the plaintiff must prove his case by leading evidence even where the defendant is absent in an ex-parte situation. This is essential for procedural fairness in such suits.

6. I find from the record that the plaintiff/ petitioner has prayed for the recovery of Rs. 2,304,000/- from the respondents/defendants, which is a huge amount in a suit filed under Order XXXVII C.P.C, therefore, the requirement for evidence ensures that a judgment is passed only where there is adequate proof to substantiate the claim, protecting the principles of natural justice and fairness.

7. For the reasons given above, I find no illegality, irregularity or jurisdictional defect in the impugned order, whereby and whereunder the petitioner was directed to produce ex-parte evidence in support of his claim. Accordingly, this petition is dismissed in limine. No order as to costs. The Additional Registrar (Judicial) of this Court is directed to send the copy of this judgment to all the District and Sessions Judges in Khyber Pakhtunkhwa for onward circulation and compliance.

SA/58/P Petition dismissed.