There is no limitation for Order IX Rule 7 Petition

PLJ 2014 Peshawar 324
[Bannu Bench Bannu]

Present: Muhammad Daud Khan, J.

KHAYAL BADSHAH--Petitioner

versus

AFZAL KHAN and 4 others--Respondents

C.R. No. 252-B of 2013, decided on 3.6.2014.

Civil Procedure Code, 1908 (V of 1908)--

----O. IX, Rr. 6 & 7--Ex-parte proceedings--Limitation for filing application--Suit to tune of Rs. 500000/-, was decreed against petitioner--Ex parte proceedings against defendant was taken under Order IX Rule 6, CPC and a remedy against such order was to be provided under Rule 7 of Order IX, CPC, as Limitation Act, 1908 does not provide any limitation for filing an application under Rule 7--As a matter of fact Rule 7 itself govern period during which an application for setting aside ex parte proceedings can be moved for convenient Rule 7 of Order IX, CPC.    [Pp. 326, 327 & 328] A, B, C, D, E, F, G, H & I

Mr. Shad Ali Khan Khattak, Advocate for Petitioner.

Mr. Muhammad Ibrahim Khan, Advocate for Respondents.

Date of hearing: 3.6.2014.

Judgment

Through instant revision petitioner the petitioner assailed the order dated 26.02.2013 of learned Civil Judge-II, Takht-e-Nasrati, Karak (Trial Court) and that of order dated 4.7.2013 of learned Additional District Judge, Takht-e-Nasrati, Karak, whereby application for setting aside ex parte decree dated 30.05.2012, was dismissed by both the Courts below.

2. Brief facts of the case are that Afzal Khan Respondent No. 1 filed a suit for declaration alongwith permanent injunction against the petitioner and remaining respondents on the ground that he is owner in possession of the suit house, on the basis of sale-deed dated 03.06.2008, as alternative relief he also sought recovery of Rs. 500000/-.

3. On notice the defendant Khyal Badshah and remaining other respondents/defendants appeared and contested she said by submitting their written statements. On divergent pleading of the parties, the learned trial Court framed issued and parties submitted their list of witnesses. Thereafter, when the case was fixed for evidence, the petitioner absented himself and thereby proceeded ex parte on 18.12.2012. However, remaining respondents/defendants adduced their evidence On conclusion of trial the suit of respondent/plaintiff was decreed to the extent of Rs. 5,00,000/-, vide judgment and decree dated 30.5.2012.

4. On 20.10.2012, the petitioner made an application for setting aside ex parte proceedings as well as ex parte decree passed against him by the learned trial Court. Respondent No. 1 contested the same by submitting replication. The learned trial Court after hearing learned counsel for the parties, dismissed the application vide its order dated 26.02.213 and the appeal filed against the same order was also dismissed by the learned Appellate Court, vide its judgment dated 04.07.2013. Feeling aggrieved the petitioner preferred instant revision petition.

5. Mr. Sahd Ali Khan Khattak, leaned counsel for the petitioner contended that both the surbodinate Courts below dismissed the application of petitioner on the sole ground of it being barred by time, whereas limitation in such a case runs in terms of Article 181 of the Limitation Act. The learned counsel mainly relied on the case law PLD 1981 SC 21. He further contended that the petitioner had not only prayed for setting aside ex parte decree dated 30.05.2012, but has also prayed for setting aside ex parte proceedings dated 18.02.2012, for which, since no period of limitation is prescribed and residuary Article 181 of the Limitation Act, shall be attracted and the period for filing such an application would be three years.

6. Muhammad Ibrahim Khan learned counsel for respondent/plaintiff strongly opposed the augments of petitioner's counsel and supported concurrent judgments of both the Courts below.

7. I have heard considered the arguments of learned counsel for the parties and with their valuable assistance record perused.

8. In the instant case there were four other defendants alongwith petitioner/defendant. The other defendants have actively participated in the proceedings, whereas the only petitioner/defendant casually used to appear before the trial Court and on 18.2.2012, when the case was fixed for evidence, he usually did not appear and was proceededex parte under Rule 6(a) of order IX, CPC. As there were four other defendants, who were appearing regularly, therefore proceedings between the respondent/plaintiff and respondents/defendants were continued. After conclusion of trial, the learned trial Court, vide its judgment and decree dated 30.5.2012 decreed the suit of plaintiff/ respondent to the tune of Rs. 500000/-, against petitioner/defendant.

9. Ex parte proceedings against defendant dated 18.2.2012 was taken under Order IX Rule 6, CPC and a remedy against such order was to be provided under Rule 7 of Order IX, CPC, as the Limitation Act, 1908 does not provide any limitation for filing an application under Rule 7. As a matter of fact Rule 7 itself govern the period during which an application for setting aside ex parte proceedings can be moved for convenient Rule 7 or Order IX, CPC is reproduced as under:--

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court direct as to costs or otherwise, be heard in answer to the suit as it he had appeared on the day fixed for his appearance."

According to this Rule an application can only be filed by the defendant when the case is adjourned ex parte and he files an application "at or before such hearing". It means that if this stage is crossed and an ex-parte decree is passed, then the defendant is precluded from questioning an order passed under Rule 6 Order IX, CPC, before the same Court, therefore, the prayer made by the petitioner in his application under order IX Rule 13, CPC, for setting aside ex parte proceedings dated 18.2.2012 is not maintainable.

10. For getting an ex parte decree set aside, the defendant has an option by two ways, one by filing an application under Order IX Rule 13, CPC and second by preferring an appeal under Section 96, CPC. For filing an application under Order IX Rule 13, CPC, the limitation governs under Article 164 of the Limitation Act. This article provides a period of 30 days for filing such application. For ready reference Article 164 of the Limitation Act, is reproduced herein below.

Description of Suit

Period of Limitation

Time from which period begins to run.

164, By a defendant, for an order to set aside a decree passed ex-parte.

Thirty Days.

The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.

11. The above article reveals that it is divisible in two parts. First part postulates the period of Limitation is 30 days from the date of decree and second part provides that if summons was not duly served then from the date of knowledge, the period of thirty days shall be computed.

The word "summons" used in Article 164 refers to the first summons issued to the defendant after institution of the suit and that the defendant under second part of the said Article would only be benefited if he is able to prove that the first summons was not duly served and then he would be entitled to reckon the period of 30 days from his knowledge of the decree. Otherwise, if the initial summons was duly served, then the date should be reckoned from the date of the decree. Wisdom can be taken from principle laid down in the case "Mian Kamal Din Vs Malik Muhammad Bashir and other (PLD 1962 Lahore 456).

12. In the instant case, after institution of suit, the summons were duly served upon defendant/petitioner, he was duly represented by his counsel during trial, submitted written statement and list of witnesses  and  during  recording  evidence when he realized proving the case against him, he deliberately disappeared before the Court. The defendant proceeded ex-parte on 18/2/2012 and later on after conclusion of trial, ex-parte decree against him was passed on 30/05/2012. While application for setting aside the ex-parte decree was made on 20/10/2012 after four months and 20 days without justifying any plausible reason and sufficient cause.

13. A person against whom an adverse order is passed and implementing and affecting his interest, yet he does not take any step to get it set aside within prescribed period of Limitation, he cannot claim exemption of limitation after expiry of period of Limitation. The Court cannot grant a free hand or free passage of time to such people who are not vigilant about their rights. Guidance can be taken from 2005 YLR 1096. It is settled principle of law that the object of law of Limitation is to be construed strictly, coupled with the condition that each day of his delay is to be explained by the party concern, because in civil a matter valuable right accrues to the other side by laps of time and it is necessary that each delay should be satisfactorily explained.

14. The conduct of the petitioner/defendant application is rightly precluded from challenging the merits of the ex-parte decree dated 30/05/2012. Reliance can be placed on case title "Muhammad Hussain & other Vs settlement & Rehabilitation Commission and others" (1975 SCMR 304) and Ministry of Defense Vs Javed & Co" (2005 CLC 1004 Peshawar).

15. As far as ex-parte decree is concerned, it has same legal effect and as good as contested decree with the exception that the modes and mechanism for setting aside such decree; may be more in any case. The Hon'ble Supreme Court of Pakistan reiterated this view in recent case titled "Hazrat Ullah and other Vs Rahim Gul and other" (PLD 2014 SC 380) wherein it is held that:

An ex-parte decree is valid, having same legal effects as contested decree, with the exception that mode and mechanism for setting such decree may be more; in any case."

16. I have gone through the case "M/s. Rehman Weaving Factory (Regd), Bahawalnagar Vs Industrial Development Bank Of Pakistan (PLD 1981 SC 21), relied upon by the learned counsel for the petitioner is not applicable to the instant case. The petitioner's case falls in the first part of Article 164 of the Limitations Act, while the referred judgment is related to a second part. There lordships in the Supreme Court dilated upon the word "Summons" used in Article 164 of the Limitation Act, so as include in some notices required to be issued in certain eventualities, thus the referred case does not advance the case of petitioner.

17. In these circumstances, I do not incline to take view different from the one taken by the both learned subordinate Courts. Resultantly, there is no merit in the petition, which is dismissed. No order to costs.

(R.A.)  Petition dismissed

Maintainability of Petition after notices are duly served

PLJ 2014 Lahore 821

Present: Muhammad Khalid Mehmood Khan, J.

SHABBIR HUSSAIN--Petitioner

versus

MUHAMMAD YOUNAS etc.--Respondents

C.R. No. 1457 of 2007, decided on 29.4.2014.

Civil Procedure Code, 1908 (V of 1908)--

----O.IX, R. 13--Ex-parte decree--Application for setting aside ex-parte order was dismissed--Application for setting aside decree was filed instead of filing appeal against decree--No restraining order was passed by High Court in writ petition--Trial Court was justified to pass decree--Validity--An ex-parte order was passed against petitioner in a suit for specific performance of an agreement and ex-parte order was in field till today, petitioner assailed ex-parte order by way of writ petition during pendency of writ petition, trial Court passed a decree against petitioner--Held: Trial Court when was satisfied that defendant was duly served then application under Order IX, Rule 13, CPC was not maintainable and only remedy available to petitioner was to file appeal against ex-parte judgment and decree--Petition was dismissed. [P. 825] A & B

Civil Procedure Code, 1908 (V of 1908)--

----O.IX, R. 13--Suit for possession through specific performance of an agreement--Ex-parte decree--Applicatioon for setting aside ex-parte order was dismissed--Instead of filing appeal against decree filed an application under Order IX, Rule 13, CPC for setting aside decree--Issue of ex-parte order and ex-parte decree were two independent causes of action--Contention--Application under Order IX, Rule 13 of CPC was independent cause of action and earlier litigation between parties was for setting aside ex-parte order which has no relevance with ex-parte decree--Validity--Ex-parte order and ex-parte decree are two independent causes of action, petitioner challenged an ex-parte order before competent forum and finally petitioner filed writ petition against the order but High Court had not suspended proceedings before trial Court--Petitioner even after passing an ex-parte order was entitled to participate in subsequent proceedings of suit but he had failed to do so--Factual position of the instant case was that in a suit petitioner was proceeded ex-parte, no doubt he challenged the order of ex-parte proceedings before High Court but had failed to procure restraining order--In absence of restraining order Civil Court recorded evidence and passed the decree.       [Pp. 825 & 826] C

Civil Procedure Code, 1908 (V of 1908)--

----O.IX R. 13--Ex-parte order--Summons were not served or prevented by any sufficient cause to appear before Court--Validity--Petitioner filed application before trial Court for setting aside ex-parte order after coming to know pendency of suit, so trial Court was justified to dismiss application under Order IX Rule 13, CPC for setting aside ex-parte decree without recording evidence as order was available on file of the suit--Held: Application under Order IX, Rule 13, CPC is maintainable only where ex-parte decree is passed without service of defendant or defendant was prevented by any sufficient cause from appearing before the Court--Petition was dismissed.     [P. 826] D

Civil Procedure Code, 1908 (V of 1908)--

----O.IX R. 13--Ex-parte order--Application for setting aside ex-parte order was dismissed--Although petitioner was not admitting that he had sold suit property but certified copy of sale-deed showed that petitioner had sold suit property through a registered sale-deed--Validity--Petitioner had sold property through registered sale-deed which showed that petitioner tried to defraud respondent and Court--Petitioner had not informed trial Court about fact that he was no more owner of property--Acts of petitioner establish that he intentionally avoided to appear before Court and intentionally tried to linger on proceedings only to avoid passing of decree against him--Petition was dismissed.   [P. 827] E

Syed Kaleem Ahmad Khurshid, Advocate for Petitioner.

Mr. Nisar Ahmad Baryar, Advocate for Respondents.

Ch. Ali Muhammad, Advocate for Respondent No. 1.

Date of hearing: 7.3.2014.

Order

Through this Civil Revision, the petitioner has assailed the order dated 16.5.2007 passed by learned civil Court on an application under Order IX Rule 13, CPC and an order dated 12.6.2007 passed by the learned appellate Court.

2. Briefly stated the facts of this case are that Respondent No. 1 filed a suit for possession through specific performance of an agreement to sell dated 09.5.1998 asserting that the parties agreed to sale and purchase of suit property against consideration of Rs.750,000/-, out of Rs.750,000/- a sum of Rs.592,000/- were paid to petitioner being earnest money.

3. The petitioner on 12.9.2000 was proceeded against ex-parte, his application for setting aside ex-parte order was dismissed on 04.10.2004. The petitioner's appeal against order dated 04.10.2004 too failed on 27.5.2005. The petitioner filed a Writ Petition No. 13070/2005 assailing the orders dated 04.10.2004 and 27.5.2005 of learned Civil Court and learned appellate Court, the writ petition was pending disposal when the learned trial Court decreed the suit on 28.9.2005 against the petitioner after recording evidence. This Court vide order dated 20.10.2005 disposed of the writ petition ordering that "if the application of the petitioner is allowed by the Court below, he can move an application for the revival of this petition" and disposed of the writ petition on 20.10.2005 with the above said remarks.

4. The petitioner instead of filing appeal against decree dated 20.10.2005 filed an application under Order IX Rule 13, CPC for setting aside decree dated 28.9.2005. The learned Civil Judge on 16.5.2007 dismissed the application under Order IX Rule 13, CPC. The petitioner's appeal against the order dated 16.5.2007 also failed on 12.6.2007. Hence, the present revision petition.

5. Learned counsel for petitioner submits that ex-order dated 16.5.2007 of learned civil Court is without lawful authority as the application was decided without framing issues and recording the evidence. The petitioner's writ petition was pending disposal before this Court for setting aside ex-parte order and as such the learned Civil Courtwrongly recorded the evidence and passed the impugned decree. The appellate Court on wrong assumption of facts and law passed order dated 12.6.2007. The learned appellate Court has wrongly assumed that the petitioner's writ petition was dismissed by this Court, in fact the petitioner's writ petition was disposed of with the permission that it can be revived at any time. Learned counsel submits that the petitioner's application for setting aside ex-parte decree has been passed without attending to the facts and law on the point and as such the same is liable to be set-aside. Learned counsel for petitioner has relied on Muhammad Iqbal Fasih v. National Bank of Pakistan,Lahore (PLD 1980 Lahore 38), Zulfiqar and others v. 1. Shahadat Khan, 2. Shahadat Khan and another (2008 SCJ 38), Registrar, Lahore High Court, Lahore v. Muhammad Naveed Hashmi and another (PLJ 2011 SC 49), Messrs Chanar Sugar Mills Ltd and others v. Collector (Sales Tax) and others (2006 SCMR 901), Fazal Bibiand others v. Abdul Haq and others (1991 CLC 291), Muhammad Hussain Afzal v. Ziaullah and others (PLD 2003 Supreme Court 625), Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq (1985 SCMR 1228), Saif Ullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926), Muhammad Azeem v. Muhammad Yousaf, etc (NLR 1985 CLJ 373), Syed Bahadar Ali Shah v. Syed Maryam Gillani and others (1991 CLC 775), Rana Muhammad Afzal Khan v. The State (1997 MLD 2145), M. Yasin Siddiqi etc. v. Ch. Muhammad Boota (1983 Law Notes (Lahore), 417), Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others (2002 CLC 1085), Sikandar Mahmood and 9 others v. Saeed Hassan and 17 others (PLD 1998 Lahore 118), Ahmed Khan v. Haji Muhammad Qasim and others (2002 SCMR 664), Attock Oil Co. Ltd v. Dr. Ghaith R. Pharaon and others (1996 SCMR 1803), Syed Iftikhar-ud-Din Haidar Gardezi and 9 others (1996 SCMR 669), Mst.Zaitoon Bibi v. Dilawar Muhammad through Legal Heirs (2004 SCMR 877) and Messrs Landhi Industrial Trading Estates Ltd, Karachi v. Government of West Pakistantthrough Excise and Taxation Officer, "N" Division Karachi (1970 SCMR 251).

6. Learned counsel for respondent supports the judgments of two Courts below and submits that respondent filed two suits against two brothers, i.e. the petitioner and his brother namely Bashir Ahmad, for specific performance of two agreements, the petitioner filed a suit for cancellation of agreement to sell, the respondent filed an application before the District Judge for consolidation of the suits and all the suits thus were consolidated. The petitioner failed to appear intentionally and the learned trial Court firstly passed ex-parte order which is in field till today and has not been set aside by any competent Court of law.

7. Learned counsel for respondent submits that as no restraining order was passed by this Court in Writ Petition No. 13070/2005 and as such the learned trial Court was justified to pass the decree as the petitioner was not attending the suit. The learned trial Court even in the absence of petitioner passed the decree after recording ex-parte evidence. Learned counsel has referred number of documents including certified copy of judgment of Hon'ble Supreme Court of Pakistan passed in Civil Appeal No. 381-L of 2012 in case titled Bashir Ahmad v. Muhammad Younas and others and submits that Bashir Ahmad is the real brother of petitioner and the petitioner and his brotherBashir Ahmad entered into agreement to sell through two separate agreements with the respondent for sale of their respective properties. Both the brothers adopted the same strategy and intentionally avoided to appear in Court and to defend the suit. Case of Bashir Ahmad was finally decided by the Hon'ble Supreme Court of Pakistan whereby the petitioner's brother Bashir Ahmad's appeal was dismissed and the fact of consolidation of four cases is available in the said judgment. Learned counsel for respondent further placed on record a certified copy of sale-deed showing that it was registered at No. 17901 on 07.11.2006 with the Sub-Registrar, the sale-deed shows that petitioner has sold the suit property to one Ch. Muhammad Azam s/o Ch. Bahadar Ali and it is specifically mentioned in the said sale-deed that the property is not subject matter of any litigation. Learned counsel submits that the purchaser Ch. Muhammad Azam has further sold the property through registered sale-deed No. 3482 registered on 15.3.2008 with the Sub-Registrar, Faisalabad in favour of Muhammad Yasin s/o Nazir Ahamd and mutation in his favour has also been attested. Learned counsel submits that after the sale of property the petitioner become non owner and as such this petition is liable to be dismissed on this score alone. Learned counsel for respondent has relied on Col. (Retd.) Mansoor Akbar v. Fazal-e-Rab Pirzada and others (2012 SCMR 540), Zafar and 2 others v. Ghulam Muhammad and 9 others (2005 CLC 525)

8. Heard. Record perused.

9. It is an admitted fact that an ex-parte order was passed against the petitioner in a suit for specific performance of an agreement and the said ex-parte order is in field till today, the petitioner assailed ex-parte order by way of Writ Petition No. 13070/2005, during the pendency of said writ petition the learned trial Court passed a decree against the petitioner and on 20.10.2005 this Court passed the following order in Writ Petition No. 13070/2005:

"It is stated that the main suit out of which the present petition has arisen, has been ex-parte decreed in favour of Respondent No. 3 and against the petitioner. The petitioner has moved an application for setting aside the ex-parte decree, which is yet pending.

2. Be that as it may, for the time being the present petition has become infructuous. However, if the application of the petitioner is allowed by the Court below, he can move an application for revival of this petition. Disposed of as such".

10. The petitioner's application under Order IX Rule 13, CPC was dismissed by the learned trial Court holding that petitioner's application for setting aside ex-parte order was dismissed on 04.10.2004 and appeal there against was also dismissed on 27.5.2005, inspite of these two orders the petitioner was having an opportunity to participate in the proceedings in main suit but he failed to participate in the subsequent proceedings. It is also held by the learned trial Court that High Court has also dismissed as withdrawn the petitioner's writ petition for setting aside ex-parte order dated 13.9.2005 keeping in view of the above facts. The learned trial Court come to the conclusion that the learned trial Court when was satisfied that the defendant/petitioner was duly served then application under Order IX Rule 13, CPC was not maintainable and the only remedy available to petitioner was to file appeal against an ex-parte judgment and decree dated 28.9.2005.

11. The argument of learned counsel for petitioner is that the application under Order IX Rule 13, CPC was on independent cause of action and the earlier litigation between the parties was for setting aside ex-parte order which has no relevance with the ex-parte decree. It is true that  ex-parte  order  and  ex-parte  decree are two independent causes of action, the petitioner challenged an ex-parte order before the competent forum and finally the petitioner filed writ petition against the order dated 04.10.2004 and 27.5.2005 but this Court has not suspended the proceedings before learned trial Court. The petitioner even after passing an ex-parte order, was entitled to participate in subsequent proceedings of suit but he failed to do so. The factual position of the case in hand is that in a suit petitioner was proceeded ex-parte, no doubt he challenged the order of ex-parte proceedings before the High Court but failed to procure the restraining order. In the absence of restraining order the learned Civil Courtrecorded the evidence and passed the decree. In these circumstances it has to be seen, whether application under Order IX Rule 13, CPC was maintainable or the petitioner was to file an appeal.

12. Order IX Rule 13, CPC is read as under:--

"13. Setting aside decree ex parte against defendant.--(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

13. The perusal of Order IX Rule 13, CPC shows that the petitioner has to satisfy the Court that summons were not served on him or he was prevented by any sufficient cause to appear before the Court when the suit was called on for hearing. In this case, the facts are different, the petitioner filed application before the learned trial Court for setting aside ex-parte order after coming to know the pendency of suit, so the learned trial Court was justified to dismiss the application under Order IX Rule 13, CPC for setting aside ex-parte decree without recording the evidence as order dated 04.10.2004 and 27.5.2005 was available on the file of the suit. The application under Order IX Rule 13 is maintainable only where the ex-parte decree is passed without the service of defendant or defendant was prevented by any sufficient cause from appearing before the Court.

14. There is another aspect of case, although the petitioner is not admitting that he has sold the suit property but the certified copy of sale-deed submitted by learned counsel for respondent before this Court, shows that the petitioner has sold the suit property through a registered sale-deed to one Ch. Muhammad Azam on 07.11.2006, this mean after selling the suit property the petitioner ceased to exist to be the owner of suit   property.   The   decree   in   favour  of  respondent  was  passed  on 28.9.2005 and the petitioner sold the property through registered sale-deed on 07.11.2006, which shows that petitioner tried to defraud the respondent and Court both. Further, he has not informed the learned trial Court about the fact that he is no more the owner of property. The above acts of petitioner establish that he intentionally avoided to appear before the Court and intentionally tried to linger on the proceedings only to avoid the passing of decree against him. The above said facts and law conclude that impugned judgment and decree and orders did not suffer any legal infirmity or illegality.

15. In view of the above, the revision thus fails and is dismissed.

(R.A.)  Revision dismissed

Technicalities would be avoided and matter would be decided on Merit

PLJ 2014 Lahore 830
[Multan Bench Multan]

Present: Muhammad Tariq Abbasi, J.

SADIQ HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN etc.--Respondents

W.P. No. 1555 of 2011, heard on 9.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Ex-parte decree--Application for setting aside of ex-parte decree--Petition was dismissed for non-prosecution--Ex-parte proceedings were initiated against respondent hence an application was moved by her to set aside proceedings--Due proceedings in the application were in progress, but due to absence of petitioner, his petition for setting aside of ex-parte decree was dismissed--It has been observed that trial Court, towards passing order, whereby during proceeding in an application moved by respondent for setting aside exparte proceedings was dismissed--Even when an application for restoration of petition for setting aside of ex-parte decree was moved, it was also turned down--Decision of the matter would be made on merit in accordance with law, after recording pro and contra evidence of the parties and technicalities would be avoided.    [Pp. 831 & 832] A, B & C

2012 CLC 1503, 2002 CLD 345, 2009 PCr.LJ 619 & PLD 2011 Lah. 14 rel.

Mr. Muhammad Fazil, Advocate for Petitioner.

Rana Ayub Elahi, Advocate for Respondents.

Date of hearing: 9.4.2014.

Judgment

Through this writ petition judgment dated 11.1.2011, passed by the learned Addl. District Judge, Multan has been called in-question, whereby an appeal filed by the petitioner against the order dated 28.10.2009, passed by the learned Trial Court, through which an application moved by the petitioner for restoration of the petition, for setting aside of the ex-patte decree has been dismissed.

2. The precise facts are that the Respondent No. 3 filed a suit, against the petitioner, whereby she claimed maintenance allowance of herself as well as two daughters namely Mst. Razia Bibi, Mst Fauzia Bibi (Respondents No. 4 & 5) and two sons namely Wajid Ali and Sajjad Hussain (Respondents No. 6 & 7). In the said suit, the petitioner appeared and requested for filing of the written statement but subsequently, became absent. Consequently, the suit was ex-parte decreed on 20.1.2007. The petitioner preferred a petition on 20.2.2007, whereby he sought setting aside of the abovementioned ex-parte decree. In the said petition, the issues were framed and the evidence of the petitioner was recorded but he again became ab5>ent, hence the petition was dismissed due to non-prosecution on 5.6.2009. For restoration of the said petition, the petitioner moved an application on 21.7.09, but the learned trial Court had dismissed if through order dated 28.10.2009. The petitioner filed an appeal but the same was dismissed through the impugned judgment dated 11.1.2011.

3. Feeling aggrieved, the instant writ petition has been preferred with the contention and the grounds that law always favours decision of cases on merits and not on the basis of technicalities but unfortunately both the learned Courts below, while not realizing the abovementioned preposition have knocked out the petitioner purely on the basis of technicalities and as such a great miscarriage of justice has done with him.

4. The learned counsel for the petitioner has advanced his arguments in the aoovementioried lines and grounds, whereas the learned counsel who has put appearance on behalf of the other side has vehemently opposed the petition.

5. Arguments of all the sides have been heard and the record has been perused.

6. A very strange situation has been noted. Through the plaint, the Respondent No. 3, has claimed maintenance for herself as well as her above-named daughters and sons. But both above-named sons of the parties who are of reasonable ages, are available in the Court standing at the side of the petitioner, with the contention that prior to filing of the suit, they are residing with the petitioner and as such, their mother has wrongly claimed the maintenance allowance, to their extent.

7. It has been observed that the ex-parte decree was passed on 20.1.2007, whereby the petitioner was held entitled for the maintenance allowance of the Respondent No. 3 as well as her above-named daughters and sons. But as stated above, the sons have come forward with the abovementioned contention. The petition for setting aside of the ex-parte decree was moved within time on 20.2.2007. In the said petition, evidence of the petitioner was recorded. In the meanwhile, the ex-parte proceedings were initiated against the Respondent No. 3, hence an application was moved by her to set aside the proceedings. The due proceedings in the said application were in progress, but due to the absence of the petitioner, his petition for setting aside of the ex-parte decree was dismissed on the abovementioned date (05.06.2009).

8. It has been observed that the learned trial Court, towards passing  the  order  dated  5.6.2009, whereby during the proceeding in an application moved by the Respondent No. 3, for setting aside ex-party proceedings the petition for setting aside of the ex-parte decree, filed by the petitioner has been dismissed, has acted harshly. Even when an application for restoration of petition for setting aside of the ex-parte decree was moved, it was also turned down.

9. If the learned trial Court was bent upon to decide the petition for setting aside of the ex-parte decree, even then it should have discussed the evidence of the petitioner, available on the record and then decided the petition on merit and not in the manner as stated above.

10. When the matter in the shape of appeal came before the learned Addl. District Judge concerned, the abovementioned facts and circumstances were totally ignored and in a slipshod manner, the appeal was dismissed through the impugned judgment.

11. While considering all the abovementioned facts and circumstances, especially that two sons, maintenance of whom was also claimed and decreed ex-parte are with the petitioner with the abovementioned contention, I am of the view that the decision of the matter should be made on merit in accordance with law, after recording pro and contra evidence of the parties and technicalities should be avoided. Reliance in this respect is placed upon Haji Lal Shah vs Mst. Nooran through L.Rs. and others (2012 CLC 1503), Muhammad Nazir vs. Haji Zaka Ullah Khan (2002 CLD 345), Hafiz Muhammad Saeed and 3 others vs. Government of the Punjab, Home Department through Secretary, Lahore and 2 others (2009 YLR 2475), Nasreen Bibi vs. The State (2009 P.Cr.LJ 619) and Mst. Safeer Begum and others vs. Additional District Judge and others (PLD 2011 Lahore 14).

12. The above said view has been strengthened/fortified by the august Supreme Court of Pakistan in the case reported as Kathiawar Cooperative Housing Society Ltd vs.Macca Masjid Trust (2009 SCMR 574).

13. Resultantly, the instant writ petition is accepted, the impugned judgment is set aside and the petition for setting aside of the ex-parte decree is restored with a direction to the learned trial Court to decide the petition within two months on receipt of this judgment. The abovementioned shall be subject to payment of all the outstanding interim maintenance allowance fixed by the learned Trial Court in respect of above-named minor girls namely Mst. Razia Bibi and Mst. Fauzia Bibi, by the petitioner, before the learned trial Court, within one month from today, failing which the instant writ petition shall be deemed to have been dismissed.

(R.A.)  Petition accused

Judgment on Section 8 of Code of Civil Procedure

PLJ 2014 SC 835
[Appellate Jurisdiction]

Present: Nasir-Ul-Mulk, Mian Saqib Nisar & Amir Hani Muslim, JJ.

HAZRATULLAH and others--Appellants

versus

RAHIM GUL and others--Respondents

Civil Appeal No. 172 of 2005, decided on 7.1.2014.

(Against the judgment dated 28.4.2003 of the Peshawar High Court, Peshawar passed in Civil Revision No. 669 of 1994)

Specific Relief Act, 1877 (I of 1877)--

----S. 8--Civil Procedure Code, (V of 1908), O. IX, R. 13--Sale deed was not challenged in earlier suit--Ex-parte decree was valid having legal effects--Modes and mechanism for setting aside such decree never assailed through any direct proceedings--Validity--In a suit under Section 8 of Specific Relief Act, 1877, declaration of entitlement is an inbuilt relief claimed by plaintiff of such a case--Once plaintiff is found to be entitled to possession, it means that he/she has been declared to be entitled, which includes declaration of title of plaintiff qua property, and that is integrated into decree for possession; and when she had attained decree for possession and found entitled to possession in terms of Section 8, undoubtedly sale-deed irrespective of it not being directly challenged, would render sale-deed as nugatory and redundant; because title shall be valued on basis of judicial verdict i.e. decree, and sale-deed shall not be a hindrance in her way.  [P. 837] A

Mr. Shakil Ahmed, ASC for Appellants.

Mr. M. Ismail Fehmi, ASC for Respondent No. 1.

Bakhtiar son of Respondent No. 7.

Date of hearing: 7.1.2014

Judgment

Mian Saqib Nisar, J.--This appeal with the leave of the Court dated 3.3.2005 entails the facts:--that the appellants' side filed a suit for declaration claiming ownership of the suit land measuring 2 kanals and 10 marlas bearing Khasra No. 1143 situated in mouza Nodeh Bala on the basis that Qudratullah, the father of the appellants vide sale-deed dated 19.4.1938 had purchased 28 kanals and 9 marlas of land from Mst. Marjan, the original owner (the predecessor-in-interest of the respondents) having differentkhasra numbers including the khasra number mentioned above and a Mutation No. 566 dated 11.12.1944 was also sanctioned in his favour. This suit was contested by therespondents which was decreed by the trial Court. The first appeal of the respondents failed but in the revisional jurisdiction, the learned High Court by setting aside the two verdicts of the Courts below dismissed the appellants' suit.

2.  The other important factual aspect of the matter is that Mst. Marjan filed a suit perhaps in the year 1939 for possession against Qudratullah and some others with regard to, inter alia, the land, subject matter of this suit. Qudratullah was proceeded ex-parte in this matter and the suit was decreed on 13.1.1940 to the following effect:

"This is a suit for possession of the land in suit on the objections that pltff is the owner of the land in suit and that defdts have taken illegal possession. Defdt 1 & admit their claim. Defdts No. 2 & 3 are ex-parte. From the evidence produced the claim is proved prima-facie as against them also. I therefore grant pltff a decree for possession of the land in suit with costs against defdt."

It may also be mentioned here that in an earlier round of litigation arising out of the present suit between the parties with respect to the suit land, the matter had come up before this Court in Civil Appeal No. 189-P of 1990 which was decided by this Court vide judgment dated 6th December, 1992. In the course of hearing of that appeal (CA.189-P/1990) which was filed by the respondents' side, who were the appellants therein, they wanted to place reliance upon the judgment dated 13.1.1940 (supra) to which objection was raised by the appellants of the present case (who were the respondents in that appeal), however, this Court considering the above aspect passed the judgment, the relevant operative part of which reads as below:

"Learned counsel for the respondents acting as much fairly as was possible for him stated that even if it is possible for him and his clients to admit the authenticity of the fresh documentary material brought before this Court, it could not be possible to finally dispose of the lis between the parties without affording them further opportunity of adducing evidence with or without amendment of pleadings. He therefore sought remand of the case to District Judge. Learned counsel for the appellant agreed to this proposal. We order accordingly. The appeal is allowed and the impugned judgment is set aside and the case is remanded to District Judge for the decision of appeal afresh after treating the fresh material placed before and admitted in evidence by this Court, as material before it. The parties shall also be afforded further opportunity to adduce evidence."

3.  After the remand the appellate Court did not follow the noted judgment of this Court in letter and spirit and dismissed the appeal of the respondents, however the learned High Court in its revisional jurisdiction when invoked by the respondents has substantially relied upon the judgment dated 13.1.1940 and has reversed the two decisions of the Courts below. It has been argued by the learned counsel that in the suit for possession filed by Mst. Marjan culminating into the decree dated 13.1.1940, she had never challenged the sale-deed dated 19.4.1938 of the suit land in favour of Qudratullah, their predecessor-in-interest, therefore, such sale-deed is still intact and resultantly, the appellants are/shall be the owners of the property in question. It is further argued that the judgment dated 13.1.1940 was never produced in evidence by therespondents, therefore, the learned High Court has erroneously relied upon the said judgment.

4.  Heard. As far as the second plea of the appellants' learned counsel is concerned which we take up first, suffice it to say that from the judgment of this Court dated 6.12.1992 (portion whereof has been reproduced above), it is clear that including all such documents which the respondents produced before this Court were made part of the evidence of the case and the matter was remanded to the first appellate Court to decide the same (the appeal of the respondents) afresh on the basis of such material, however, this Court also allowed opportunity to the parties to lead any further evidence, obviously if they so desired. The appellants did not adduce any further evidence to rebut the judgment dated 13.1.1940; it is also not controverted at any stage of the proceeding if Qudratullah was not a party to that matter; or that the subject matter of the decree dated 13.1.1940 was not in respect of the suit land (land involved herein), therefore the plea has no force. With regard to the other argument that the sale-deed dated 19.4.1938 was not challenged in the earlier suit filed by Mst. Marjan (the predecessor-in-interest of the respondents), coupled with the appellants' attack that the decree dated 13.1.1940 was ex-parte; it is held that an ex-parte decree is valid, having some legal effects and as good as a contested decree, with the exception that the modes and mechanism for the setting aside such decree may be more; in any case, after having attained the knowledge of that decree, the appellants never assailed it (decree dated 13.1.1940) through any direct proceedings, i.e. either under Order IX Rule 13, CPC or any other remedy available to them under the law, thus for all intents and purposes, the said judgment and decree had attained finality and would be binding upon the appellants.

As far as the plea that Mst. Marjan had never challenged the sale-deed dated 19.4.1938 in favour of Qudratullah in the suit, but only filed a suit for possession, it may be held that in a suit under Section 8 of the  Specific  Relief  Act,  1877,  the  declaration  of  the entitlement is an inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to the possession, it means that he/she has been declared to be entitled, which includes the declaration of title of the plaintiff qua the property, and this is integrated into the decree for possession; and when Mst. Marjan had attained the decree for possession and found entitled to the possession in terms of Section 8 (supra), undoubtedly the sale-deed dated 19.4.1938 in favour of Qudratullah irrespective of it not being directly challenged, would render the above sale-deed as nugatory and redundant; because the title of Mst. Marjan shall be valued on the basis of the judicial verdict i.e. the decree, and the sale-deed shall not be a hindrance in her way.

5.  In view of the above, we do not find any merit in the pleas raised before us by the learned counsel for the appellants. Therefore, this appeal has no merit which is accordingly dismissed.

(R.A.)  Appeal dismissed

Jurisdiction of High Court to grant or refuse Injunction

PLJ 2014 Quetta 80 (DB)

Present: Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ.

MUHAMMAD RABANI, SALES DIRECTOR DALDA FOOD (PVT.) LTD., KARACHI & others--Appellants

versus

AGHA ARSHAD, MARKETING, DISTRIBUTOR OF DALDA & others--Respondents

C.M. Appeal No. 15 of 2012, decided on 24.1.2013.

Arbitration Act, 1940 (X of 1940)--

----Ss. 34 & 41--Civil Procedure Code, (V of 1908), O. XXXIX, Rr. 1 & 2--Interim restraining order--Jurisdiction of High Court for grant or refuse an injunction--Violated terms and conditions of agreement--Validity--Arbitrator(s) or Arbitration Tribunal does not have power to deal with request of an interim injunction, as provision of CPC are not applicable to arbitration proceedings--Powers of Court under Second Schedule of Act, can be exercised by issuing an interim orders for preservation and safety of subject matter of dispute--Mere filing of an application under Section 34 of Act or even stay of proceedings and referring matter to Arbitrator shall not precluded trial Court from dealing with injunction application--By invoking jurisdiction under Section 34 of Act, Court would not become functus-officio, if an interim relief claimed, falls within scope of Section 41 of Act.      [P. 82] A

Civil Procedure Code, 1908 (V of 1908)--

----O. XXXIX, Rr. 1 & 2--Arbitration Act, (X of 1940), S. 34--Interim restraining order--Violated terms and conditions of agreement--Defendant can contest an injunction application can file an application for setting aside an ex-parte order or decree or can file application for appointment of receiver--Not disentitled from claiming stay of suit and request for referring matter to arbitrators--Validity--Since application had not been decided finally and impugned order was interim in nature--Appellants might raise all these objections before trial Court, which should be decided in accordance with provisions of Order XXXIX Rule 1 and 2, CPC--Appeal was dismissed.        [P. 82] B

Syed Ayaz Zahoor, Advocate for Appellants.

Mr. Naseebullah Tareen, Advocate for Respondent No. 1.

Mr. Ayaz Sawati, Advocate for Respondent No. 2.

Date of hearing: 26.12.2012.

Judgment

Jamal Khan Mandokhail, J.--Facts of the case are that the Respondent No. 1/plaintiff filed a suit for a specific performance of an agreement dated 31st May, 2007 and recovery of an amount of Rs.60,08,307/- (rupees sixty lacs eight thousand three hundred and seven rupees only) along with an application under Order XXXIX Rules 1 and 2 CPC, against the appellants and Respondent No. 2 in the Court of Civil Judge-VII Quetta. The trial Court on the first date of hearing i.e. 21st June, 2012 passed an interim restraining order against the appellants and the Respondent No. 2. The appellants and the Respondent No. 2 filed an application under Section 34 of the Arbitration Act, 1940 (hereinafter referred to as the `Act') with a request to slay the proceedings and to refer the matter to the Arbitrator as per clause-28 of the Arbitration agreement. At the same lime, the appellants feeling aggrieved from the interim injunction order, preferred the instant appeal.

2.  The learned counsel for the appellants states that in presence of the application for stay of the proceedings filed by the appellants and the Respondent No. 2, the trial Court should not have extend the order impugned. He stated that even otherwise while granting the restraining order, the trial Court has failed to lake into consideration the three ingredients for the grant of stay i.e. prima-facie case, irreparable loss, and balance of inconvenience. He further stated that the agreement does not preclude the appellants from appointing the Respondent No. 2 as their agent therefore, there was no occasion for the trial Court to pass the restraining order. The learned counsel for the Respondent No. 2 supported the contention of the learned counsel for the appellants.

3.  On the other hand, the learned counsel for the Respondent No. 1 opposed the contention and stated that the appellants have violated the terms and conditions of the agreement, therefore, the Respondent No. 1 has a prima-facie case. If the applicants are not restrained, the Respondent No. 1 will suffer irreparable loss and will face inconvenience. The learned counsel further stated that there is no bar on the trial Court for proceeding and deciding the injunction application, even if the application under Section 34 of the Act, is filed. The learned counsel states that the order impugned is interim in nature and it has not so far been confirmed, therefore, the appellants should have wait for the final decision upon the application under Order XXXIX Rules 1 and 2, CPC filed by the Respondent No. 1.

4.  We have heard the learned counsel for the parties' and have gone through the record. To deal with the jurisdiction of this Court for the grant or refuse an injunction, it may be observed that under Section 41(1) of the Act, the Code of Civil Procedure 1908, is applicable, Clause (b) of the Act, provides that the Court shall have, for the purpose of, and in relation to an arbitration proceedings, the same power of making an order in respect of any of the matters set out in the second schedule of the Act, for the purpose of, and in relation, to any proceedings before the Court. The aforesaid provision of the Arbitration Act, read with the second schedule of the Act inter-alia empowers the Court to grant or refuse an interim injunction. It is because of the fact that the Arbitrator(s) or the Arbitration Tribunal does not have the power to deal with the request of an interim injunction, as the Provision of Civil Procedure Code, 1908 are not applicable to the arbitration proceedings. The powers of the Court under the Second Schedule of the Act, can be exercised by issuing an interim orders for the preservation and safety of the subject matter of the dispute, Thus, mere filing of an application under Section 34 of the Act or even stay of the proceedings and referring the matter to the Arbitrator shall not precluded the trial Court from dealing with the injunction application. The fact that by invoking the jurisdiction under Section 34 of the Act, the Court would not become functus-officio, if an interim relief claimed, falls within the scope of Section 41 of the Act.

5.  The defendant can contest an injunction application, can file an application for setting aside an ex-parte order or decree, or can file an application for the appointment of a Receiver. The same does not disentitle the defendant from claiming stay of a suit and request for referring the matter to the arbitrator. The expression "Any other step into proceeding" used in Section 34 of the Act, is not relatable to any step, action or inaction taken by the defendant during the proceedings of interim applications, such expression is applicable only to the proceedings of the main case, hence, the objection is overruled. As regards the remaining grounds of the appellants, suffice it to observe here, that since the application has not been decided finally and the impugned order is interim in nature, therefore, we are not inclined to dilate upon the same. The appellants may raise all these objections before the trial Court, which should be decided in accordance with the Provisions of Order XXXIX Rule 1 and 2 CPC.

Thus, in view of above, the appeal is accordingly dismissed. The trial Court is directed to decide the application finally in accordance with law, after providing opportunity of hearing to both the parties.

(R.A.)  Appeal dismissed