KAMRAN Co. and others vs Messrs MODERN MOTORS and another

' ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to consider the legality of the order passed by the High Court dated 26-3-1979.

2. The facts, in brief, are that the respondent No, 1 filed a suit on 11-6-1971 for recovery of Rs, 31,300 against the appellants and respondent No, 2 before the Civil Judge, Rawalpindi. The appellants were also impleaded as defendants on the ground that the transaction was made by respondent No, 2 for the alleged joint family business. The appellants filed their written statement denying their liability. The respondent No, 2 was proceeded ex parte. Issues were framed. The case was adjourned to 6-4-1974 which was declared holiday. On 1-7-1974 the case was adjourned for evidence of the plaintiff for 9-11-1974 by the Reader of the Court as the learned trial Judge was on leave. The suit was decreed ex parte on 9-11-1974. According to the appellants they believed that the case had been adjourned to 11-11-1974 whereas the Reader of the Court had adjourned it to 9- 11-1974. The decree was passed without recording any evidence. An application for setting aside the cx parte decree was filed which was dismissed by the trial Court and that order was maintained by the Additional District Judge and the High Court.

3. The admitted position is that the learned Civil Judge was on leave on 1-7-1974 and the Reader of the Court had adjourned the case to 9-11-1974. The provisions of Order XVII rule 5 were not complied with as no slip was handed over to the parties by the Reader of the Court. This provision clearly stipulates that when the Presiding Officer is absent, the ministerial officer of the Court shall hand over to the parties a slip specifying the other date fixed for proceedings. The other illegality committed by the trial Court is that under Order VIII rule 10 where any party from whom a written statement is so required fails to present the same the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. In the present case, written statement was not filed by the respondent No, 2 but the appellants had filed the written statement categorically denying their liability. Even an issue had been framed by the trial Court. Therefore, it was incumbent upon it to have decided the case on merits after recording the evidence. The respondents did not lead any evidence. The provisions of Order VIII rule 10 were not attracted.

4. The learned counsel has referred to Shamroz Khan v. Muhammad Amin PLD 1978 SC 89 wherein it was observed as follows:-- "The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads:-- " the Courts may proceed ex parte and pass decree without recording evidence "

' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence, or without recording evidence and like all discretions vested in the. Courts, this discretion must he exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents."

5. The dictum laid down by this Court in Shamroz Khan's case applies to the facts of the present case also. Under Order XVII, rule 2 if any party fails 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. Order IX rule 6(1)(a) would be applicable after the summons have been duly served and the defendant does not appear but this provision would not be applicable in the present case as after the service of summons, the appellants had appeared and filed the written statement. Thereafter, the issue had been settled. Therefore, it was obligatory on the Court to have decided the case on merits but as no evidence was produced by the respondent a decree could not he passed in the circumstances of the case. The judgments and decrees of the Courts below against the appellants are set aside.

6. During the course of hearing, the learned counsel for the parties talked with each other. The learned counsel for the respondents with the permission of the Court has withdrawn the suit against the appellants. The appeal is consequently disposed of accordingly with no order as to costs.