Mst. ZUBAIDA BEGUM Versus IMAM YAR BAIG
MUZAFFAR ALI, J.--- This petition has been preferred against the impugned order/judgment dated 13-11-2012 passed by the learned Division Bench of the Chief Court Gilgit-Baltistan whereby the judgment/order dated 20-5-2011, passed by the learned District Judge Gilgit in Revision No.4 of 2009, was upheld, consequent whereupon, the Order/Judgment dated 30-2-2009 passed by the learned Civil Judge Hunza by virtue of which the application filed under Order IX, Rule 13, C.P.C. was dismissed.
2. The concise sketch of the facts wrapped with this petition are as such that the present petitioner filed a Civil Suit against the respondents/defendants in the court of learned Civil Judge Hunza seeking cancellation of a power of attorney and also sought perpetual injunction against the respondents/defendants. The learned trial court on the receipt of Suit issued the process under law to ensure the attendance of the respondents and exhausted all measures necessary for the appearance of the respondents i.e. issue of summons, issuance of substituted summons and a publication was also got published in the newspaper but the respondents/defendants did not appear to defend the suit filed against them. The learned trial Court passed the ex parte decree dated 10-11-2006.
3. The respondent No. 2 herein feeling aggrieved and dissatisfied made an application on 30-11-2006 under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree dated 10-11-2006. The learned trial Court accepted the application vide order dated 30-3-2009 while setting aside the ex parte decree.
4. The present petitioners called in question the order dated 30-3-2009 before the learned District Judge Gilgit through a Revision Petition. The learned District Judge dismissed the Revision petition vide order dated 20-5-2011. The petitioners being dissatisfied from the order passed by the learned District Judge, assailed the same though a Writ Petition No.58 of 2011 before the Chief Court Gilgit-Baltistan. The learned Division Bench of the Chief Court Gilgit-Baltistan also dismissed the writ petition vide order dated 13-11-2012, hence this petition for leave to appeal.
5. The learned counsel for the petitioner argued vehemently that the learned trial court did not adhere to the relevant point in question rather the application filed under Order IX, Rule 13, C.P.C. was accepted only on the ground that the application was filed within time, whereas, the other point i.e. "sufficient cause" has not been taken into consideration while deciding the application. The learned trial court lost sight of the fact that no sufficient cause for setting aside the ex parte decree was mentioned in the application which was necessary ingredient to be taken into consideration for the just decision. He argued further that the "sufficient cause" is pre-requisite under Order IX, Rule 13, C.P.C. for setting aside an ex parte decree. As such the courts below have failed to appreciate this legal point, therefore, the impugned orders passed by all the three courts below are not tenable in law and all are liable to be set aside by granting leave to appeal.
6. We have heard the learned counsel for the petitioner at full length and have also perused the record with his able assistance.
7. When the learned counsel was confronted with the fact that the date fixed for appearance of the defendants in the trial court was a holiday and also asked him about the legal consequences of the same situation. He referred Order XVII, Rule 4, C.P.C. which reads as follows.
"Appearance of parties on the day next after the holiday Where a suit or proceeding is set down for a day which is a holiday, the parties thereto shall appear in the court on the day next following that day or, when two or more successive days are holidays, on the day next following the last of the successive days, and the court may then either proceed with the suit on such day, or fix some other day thereafter."
8. This rule has been added by Ordinance No. XII of 1972 and it bounds the parties to attend the Court, on the following working day after the holiday, fixed for proceedings by the Courts or, when two or more successive days are holidays, on the day next following the last of the such successive days. This provision has been introduced to avoid delay in proceedings of the case, involved in effecting fresh service upon the parties. The rule does not deal with the absence of a party on the next day to the holiday and its consequences. The provision only contemplates for attendance of the parties without awaiting fresh notices to be issued by the court on the next day, when a case is fixed on a day which comes to be a holiday.
9. The learned counsel failed to point out a specific penal clause or a provision, which might be said to have taken effect in a situation arised because of absence of party, on the next day to the holiday as envisaged in Order XVII, Rule 4, C.P.C. Since the Rule 4 has been incorporated in Order XVII, C.P.C. which deals with the adjourned date of hearing as such we are of the opinion that, absence of a party on a day next to the holiday can be dealt with under Order XVII, Rule 2, C.P.C., the same is reproduced as under:-
Order XVII, Rule 2, C.P.C.
"Procedure if parties fail to appear on a day fixed . Where, on a day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other Order as it thinks fit"
10. This rule provides a procedure to deal with such like situation when a party makes himself absent from the Court on an adjourned date of hearing and the Court is vested with the discretion to dispose of the Suit in one of the modes provided under Order IX, C.P.C. or make such other order as the Court deems fit. The word "hearing" in the rule 2 has significance and stands as pre-requisite in order to exercise the discretion of the Court under Rule 2 of the Order XVII, C.P.C. and also under Order IX, C.P.C.
11. The word "hearing" has not been defined in the C.P.C. but the superior judiciary has interpreted its connotation i.e. (a) a date fixed for framing of issues (b) adducing of witnesses (c) date fixed for arguments (d) investigation of real controversy between the parties by the Court. The august Supreme Court as well as High Courts in Pakistan have also held that no Courts have discretion or power to pass an ex parte decree on a date which is not fixed for hearing of the case and likewise the Courts are having no power to dismiss any suit in default when the date is fixed not for hearing. (underline is ours)
12. The august Supreme Court as well as the High Courts in Pakistan have declared the ex parte decrees and orders for dismissal in default void ab initio and without jurisdiction passed by the lower judiciary in the cases wherein the cases were not fixed for hearing but were fixed for (a) just appearance of the parties (b) filing of written statements/replication or (c) to deal an interlocutory matter in the case, challenged before them in several cases.
13. In view of what has been discussed in the preceding paragraphs and if it is read in its juxtaposition with the case in hand, it transpires that the date 10-11-2006 was fixed for appearance of the defendants before the trial court as such the date was not fixed for "hearing" of the case, therefore, the impugned ex parte decree dated 10-11-2006 had been passed without application of judicious mind which rendered the same void ab initio in law. If the ex parte decree is basically void ab initio, no sufficient cause as incorporated in Order IX, Rule 13, C.P.C., is required to be shown for setting aside the impugned ex parte decree. The ex parte decree which is basically void ab initio may be set aside even in exercise of inherent power of the courts under section 151, C.P.C. to make such order which may be necessary to meet the ends of justice or to avoid any abuse of process of court. Our view is fortified further by the dictum laid down by the superior courts of Pakistan time to time reported as PLD 1975 SC 689, 1987 SCMR 63, 1991 MLD 63 and 1992 SCMR 707.
14. In view of what has been discussed above, we have reached to an inescapable conclusion that the petition in hand is meritless and without any substance and warrants no interference in the concurrent findings of the Courts below and same is dismissed no orders as to the cost.
Leave Refused.
HBT/26/GB Petition dismissed.