PROVINCE OF PUNJAB vs Lt.Gen.(Retd.) WAJID ALI BURKI

ORDER

' ABDUL QADEER CHAUDHRY, J.--Leave is sought against the judgment of the Lahore High Court dated 6-7-1980.

2. The facts, in brief, are that the respondent brought a suit for securing possession of the land mentioned in the plaint against the petitioner. The suit came up for hearing before the learned Civil Judge on 12-2-1974 when summons were issued to the defendant. According to the petitioner, on 6-5-1974, some alleged representative of the defendant in the suit appeared and sought adjournment for engaging a Government pleader. The suit was adjourned to 8-6-1976 for filing of written statement. Again on 8-6-1974 an adjournment was sought by some alleged representative of the defendant and the suit was decreed ex parte. The petitioner challenged this decree before the District Judge on 21-2-1980. An application under section 5 of the Limitation Act was also filed praying for condonation of delay in the filing of the appeal. The learned District Judge dismissed the appeal as barred by time. The petitioner filed a Civil Revision in the High Court which was also dismissed in limine.

3. Learned counsel for the petitioner submitted inter alia, that no authorised representative of the defendant had appeared in the Court and the record is silent about it. He further submitted that no evidence was recorded by the trial Court before passing the decree. He has placed reliance on Shamroze Khan v. Muhammad Amin PLD 1978 SC 89 and Sakhawat-ud-Din v. Muhammad Iqbal 1983 SCMR 1269(1).

4. In Shamroze Khan's case, it was observed that 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. Under Order XVII, Rule 2 where on any 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. Once the case was adjourned at the request of alleged representative of the petitioner, the only course open to the Court was to proceed in accordance with Order IX which has not been done in the present case. Order IX, rule 6(1)(a) is inapplicable to the facts of the present case. This provision applies to the date fixed in the summons for the hearing of the suit when the defendant appears in response to the summons issued by the Court under Order V, C.P.C. Order VIII, rule 10 also does not apply because the Court had not directed specifically to file the written statement. All these questions require examination by this Court.

Leave is granted.

6. The execution of decree (if not executed) is stayed meanwhile. The respondent shall further make an account of mesne profits if any from the date of decree upto the final decision of the appeal.