2013 C L C 214

2013 C L C 214

[Lahore]

Before Shujaat Ali Khan, J

BASHIR AHMAD----Petitioner

Versus

QAISAR MEHMOOD and others----Respondents

Civil Revision No.172 of 2011/BWP, decided on 12th October, 2012.

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

----S. 2(2)---Acknowledged decree, types of---Scope---Preliminary decree, final decree and ex parte decree were acknowledged decrees.

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

----O. IX, Rr.6, 13, Ss.12(2), 96(2) & 114---Ex parte judgment and decree, setting aside of---Scope---Ex paste judgment and decree can be challenged by way of filing an application under Order IX,' Rule 13, C.P.C., a review petition, an appeal and in addition to that an application under section 12(2) of C.P.C.---When the legislators had given an option to the aggrieved party to challenge the ex parte judgment and decree by way of filing an application under O.IX, Rule 13, High Court could not give, verdict to the effect that in such matters, appeal was competent and not an application.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; M.S. Engineering Company v. Muhammad Mushtaq and 2 others 1992 SCMR 1294; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; Sikandar Khan alias Makhu v. Barkhurdar and 3 others 1975 SCMR 464; Azizullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lab. 879 and Anser Hussain v. Mst. Shazia Muhammad Hussain  PCrLJ 2010 Sh.0 (AJ&K) 125 ref.

Ibrahim v. Mst. Kulsoom Begurn 1973 SCMR 589 rel.

Ch. Abdul Ghani and Fazal ul Mabood Chughtai for Petitioner.

ORDER

SHUJAAT ALI KHAN, J.--- By means of this revision petition the petitioner has impugned order dated 7-9-2009 passed by the learned Civil Judge 1st Class, Rahim Yar Khan and that of learned District Judge Rahim Yar Khan dated 3-2-2011.

2. Shorn of unnecessary details, the petitioner filed .a suit for specific performance of contract before the learned Senior Civil Judge, Rahim Yar Khan, which was entrusted to the learned Civil Judge 1st Class. As the defendants did not appear before the trial Court despite substituted service, ex parse proceedings were ordered against them and finally vide judgment and decree dated 9-1-999 decreed the suit of the petitioner ex parte. On 29-9-1999 the defendants/respondents filed an application for setting aside of said judgment and decree. During pendency of the said application the petitioner filed an application under Order VII, rule 11, C.P.C. for dismissal of the application filed by the respondents/defendants which was dismissed by the learned trial Court vide order dated 7-9-2009 against which the petitioner filed an appeal before the learned District Judge, Rahim Yar Khan, which was also dismissed vide order dated 3-2-2011; hence this revision petition.

3. The learned counsel for the petitioner contend that the ex parte judgment and decree being appealable, the miscellaneous application filed by the respondents/defendants was not competent; that while dismissing the application of the petitioner under Order VII, rule 11, C.P.C. both the courts below did not appreciate the fact that during proceedings one Munshi Lal Akhtar had been appearing on behalf of respondents/defendants; that the suit filed by the petitioner was not decreed straight-way after passing of order, for ex parte proceedings against respondents/defendants rather the petitioner produced his ex parte evidence; that once a defendant is proceeded against ex parte after adopting all modes he could not be allowed to seek setting aside of the same; that after decree of the suit valuable rights accrued in favour of the petitioner; that on the dint of application filed by them for setting aside of ex parte judgment and decree the respondents/defendants are humiliating the petitioner and the practice of filing applications for setting aside of ex parte judgment and decree should be declared unlawful through an authoritative pronouncement. In support of his submissions, learned counsel, has relied on the cases reported as Jameel Ahmed v. Saifuddin (PLD 1994 SC 501), Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879), Azad Hussain v.

Haji Muhammad Hussain (PLD 1994 SC 874), M.S. Engineering Company v. Muhammad Mushtaq and 2 others (1992 SCMR 1294), Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89), Sikandar Khan alias Makhu v. Barkhurdar and 3 others (1975 SCMR 464), Azizullah Khan and 4 others v. Arshad Hussain and 2 others (PLD 1975 Lahore 879) and Anser Hussain v. Mst. Shazia Muhammad Hussain (PLJ 2010 Sh.C. (AJ&K) 125).

4. I have heard the learned counsel for the petitioner at considerable length and have also gone through the documents appended with this petition in addition to the case-law cited at the bar.

5. Before entering into unfathomable arena of controversy involved in this petition I deem it appropriate to have a glance on the definition of word "decree" as expounded in section 2 the Civil Procedure Code, 1908, which for convenience of reference is reproduced hereinbelow:---

" 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of OrderXXI but shall not include ---

(a)  any adjudication from which an appeal lies as an appeal from-an order, or

(b)  any order of dismissal for default. "

After going through the above-quoted definition when we scan through the judgments delivered by this court as well as the august Supreme Court of Pakistan the following types of decree have been acknowledged:

(i) Preliminary Decree,

(ii) Final Decree, and

(iii) Ex parte Decree.

6. Now coming to the proposition as to whether the ex parte judgment and. decree can be challenged in an application or that can exclusively be impugned through an appeal. To decide the said application a perusal of Order IX rule 6, C.P.C. would be conducive which for the facility of reference is reproduced hereinbelow:---

"Procedure when only plaintiff appears.--- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then

(a)  When summons duly served.- if it is proved that the summons was duly served, the Court may proceed ex parte, and pass decree without recording evidence.

(b)  When summons not duly served.--- if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c)  When summons served, but not in due time. --- if it is .o roved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement."

7. In a case ex parte judgment and decree is passed against a person the remedy for him has been catered under Order IX, rule 13, C.P.C. which reads as follows:---

"Setting, aside decree ex parte against defendant. --- (1) In 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 that thesummons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit as 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:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.

(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (I)."

It has been established by now that an ex parte judgment and decree can be challenged by way of filing an application under Order IX, I rule 13, C.P.C., a review petition, an appeal and in addition to that an application under section 12(2) of C.P.C. Reliance in this regard. is placed on the case reported as Ibrahim v. Mst.. Kulsoom Begum (1973 SCMR 589) wherein the august Supreme Court of Pakistan has laid law to the following effect:--

"In view of the aforesaid provisions of law once an ex paste decree has been passed against a defendant he has two alternatives before him, name4-(1) either make an application under Order IX, rule 13 of the Code for setting aside the ex parte decree and in case he is unsuccessful an appeal under Order XLIII, rule 1(d) of the Code is available to him, or (2) he may prefer an appeal under section 96, subsection (2) of the Code.

The petitioner not having pursued anyone of the two courses open to him, the High Court was right in rejecting his revision application under section 115 of the Code of Civil Procedure as riot maintainable."

9. It is necessary to mention over here that when the legislators have given an option to the aggrieved party to challenge the ex parte judgment and decree by way of filing an application under Order IX, rule 13 this court cannot give verdict to the effect that in such matters appeal is competent and not an application.

10. Insofar as the contention of learned counsel for the petitioner that the application for setting aside of ex parte judgment and decree was filed with a delay of 8 months is concerned, suffice it to observe that the said fact would be competently dealt with by the learned trial Court while deciding the said application.

11. Insofar as the case-law cited by learned counsel for the petitioner is concerned, suffice it to observe that the same being distinguishable from the facts and circumstances of the instant case is of no help for the petitioner.

11. For what has been discussed above, instant revision petition is dismissed.

SAK/B-28/L                                                                                        Revision dismissed.