BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SARGODHA vs MUHAMMAD AKRAM

' This revision petition is directed against the judgment and decree dated 12-3-1991 whereby the learned Additional District Judge, Faisalabad dismissed the petitioner's appeal against ex parte decree dated 18-12-1990 by virtue of which the learned Civil Judge, Faisalabad had de'creed the respondent's suit for declaration and mandatory injunction.

2. The relevant facts which gave rise to the present revision petition are that on 1-11--1990 Muhammad Akram, respondent herein, instituted a suit against the Board of Intermediate and Secondary Education, Sargodha, hereinafter referred to as the petitioner, for a declaration to the effect that his correct date of birth was 20-9-1964 whereas in his matriculation certificate issued by the petitioner the said date was wrongly mentioned as 20-9-1961. A prayer was made for the issuance of a mandatory injunction to direct the petitioner to enter the correct date of his birth in the said certificate. After the necessary scrutiny on 3-11-1990 summons for the settlement of issues was issued to the petitioner for 24-11-1990. On 24-11-1990 the petitioner appeared in Court through its representative Raja Muhammad Shard. A copy of the plaint was delivered to him and the case was adjourned to 5-12-1990 for filing of the written statement. On 5-12-1990 the statement of the representative of the petitioner, who on that day was Basharat Ali Bhatti, Assistant Controller Conduct, was recorded. From his statement it appears that the matter about the rectification of the date of birth of the respondent was pending before the petitioner Board and the representative of the said Board had undertaken to decide the said matter after consulting the original record which was to be produced by the respondent. After the said statement the learned trial Court adjourned the case to 9-12-1990 for further proceedings and proper orders {{URDU TEXT}} On 9-12- 1990 again a similar order was made and the case was adjourned to 10-12-1990. It is pertinent to note that on the said date the petitioner was not represented by any one. On 10-12-1990 no one appeared on behalf of the petitioner again as a result of which ex parte proceedings were taken and the case was adjourned to 11-12-1990 for ex parte evidence which was subsequently recorded on 16-12-1990 and 18-12-1990. On the latter date the suit was decreed ex parte.

3. On coming to know about the decree in question the petitioner lodged an appeal before the learned District Judge which was entrusted to the learned Additional District Judge for disposal.

After hearing the parties' learned counsel the appeal was dismissed vide order dated 12-3-1991. Still not satisfied the petitioner has come up in revision before this Court to bring under challenge the correctness of the decisions of the two Courts below.

4. I have heard the learned counsel for the petitioner and the respondent who is a lawyer by profession. I have also gone through the material available on record.

5. In order to find out if the ex parte decree in favour of the respondent was passed in accordance with the law it has to be examined if the date on which ex parte proceedings were taken against the petitioner was a date fixed for hearing, for, ex parte proceedings cannot be taken against a defendant on account of his absence on a date which is not a date of hearing. Perusal of the record would show and it has already been mentioned above that the petitioner was proceeded against ex parte on 10-12-1990 because on that day and the previous date i,e, 9-12-1990 no one- had entered appearance on its behalf. It is not disputed that the said two dates were fixed for "further proceedings and proper orders". None of the said dates in my view, could be considered or taken as a date of hearing. Wherton's Law Lexicon defines the expression "hearing" as "investigation of controversy". In other words a date of hearing is a date on which judicial examination of the dispute between the parties is to take place. Admittedly no controversy was proposed to be investigated either on 9-12-1990 or 10-12-1990, and therefore, these dates could not be termed as dates of hearing. In support of this view the case of Mst. Barkat Bibi (PLD 1949 Lahore 432) may be cited wherein it was held that where no investigation of any matter germane to the suit fell to be performed by the trial Court, and the only order which it could possibly have made was an order of an administrative nature, then the order dismissing the suit on account of the absence of the defendant on that day was without jurisdiction. This view was reiterated in Hashim Khan v. National Bank of Pakistan (1990 SCMR 707). I, therefore, have no hesitation in holding that 10-12-1990 was not the date fixed for the hearing of the case, and therefore, no ex parte proceedings could be taken against the petitioner on account of its default. As the ex parte proceedings were void ab initio the subsequent ex parte decree passed on the basis of such proceedings was also void.

6. The respondent has maintained that the petitioner had not raised this plea before the learned lower appellate Court, and therefore, it was estopped from raising it before this Court in revision. I am not inclined to uphold this objection because the plea which the petitioner has raised before this Court is of a purely legal nature, and therefore, is allowed to be raised in this Court in revision, even if the same was not raised before the learned lower appellate Court. In support of this view the case of Mst. Umar Bibi (PLD 1968 Lahore 629) may be cited.

7. In view of what has been discussed above I accept this revision petition, set aside the judgment and decrees dated 18-12-1990 and 12-3-1991 respectively passed by the learned Civil Judge and Additional District Judge, Faisalabad and remand the case to the learned Senior Civil Judge, Faisalabad to whom the suit is entrusted for decision on merits within six months from 6-3-1993 on which date the parties shall appear before him.

8. Parties are directed to bear their own costs.