1994 M L D 1947

[Lahore]

Before Gul Zarin Kiani, J

MUHAMMAD ARIF---Petitioner

Versus

RAHIM KHAN and 4 others---Respondents

Civil Revision No.1243 of 1994, heard on 29th May, 1994.

Civil Procedure Code (V of 1908)---

----O. IX, R.7 & O. IX, R. 13---Setting aside ex parte order passed against one of defendants---Trial
Court rejected prayer of defendant for setting aside ex parte order on point of limitation---Validity--
-Provision of O.IX, R.7, C.P.C. does not provide for any period of limitation---During pendency of
suit, application for setting aside ex parte order was competent under O.IX, R.7 C.P.C. while after
passing of decree application for setting aside same W maintainable under O.IX, R.13, C.P.C.---
Dismissal of application for setting aside ex parte order on point of limitation by Trial Court was
not valid---Court should be liberal in construing O.IX, R.7, C.P.C. and should not take stringent
view of defendant's absence---Ex parte order, unless set aside would not allow defendant to be
relegated to the previous position he would have occupied if he had appeared---As for joining
future proceedings defendant could not be stopped, therefrom---As regards occupying previous
position, defendant however was obligated to show good cause of it, and unless he did so, he
could not be relegated to it---Defendant having shown justifiable good cause for setting aside ex
parte order deserved to succeed---Ex parte order against defendant was set aside and he was
allowed to join proceedings of suit from the stage of his initial default in appearance to claim cross-
examination of plaintiff's witnesses as also those to co-defendants, if adverse to his interest, on
payment of specified costs.

Ch. Muhammad Yaqoob Sabir for Petitioner. Respondent No.1. in person. Respondents Nos. 3 to 5:
Ex parte.

Date of hearing: 29th May, 1994.

JUDGMENT

Short facts relevant for decision of the civil revision were as follows:---Muhammad Arif
defendant No.3 in the civil suit instituted by Rahim Khan plaintiff-respondent No.1 for declaration
of ownership rights in respect of 153 Kanals of land situate at Mauza Sandhu of Tehsil Pattoki,
District Kasur was declared ex parte by the trial Court on 12-2-1991. Previous to it, he had
submitted his written statement and issues on merits were also settled on 11-2-1990. Meanwhile,
plaintiff gave his evidence and part of the evidence by co-defendants was also recorded. Since
defendant No. 3 was ex parte, he could not cross-examine plaintiff's witnesses and also those of his
co-defendants, in case their testimony was adverse to his interest.

On 15-4-1993, defendant No. 3 applied to the trial Court under Order IX, Rule 7, Civil P.C. for
setting aside of the ex parte order against him and for permission to join future proceedings in the
suit. Vide its order dated 3-5-1993, the trial Court disallowed the petition and further adjourned the
suit for co-defendants remaining evidence.
Aggrieved of the order, defendant No. 3 preferred revision in the District Court at Chunian. Upon
amendment to section 115, Civil P.C. revision petition was returned to him for its presentation in
competent jurisdiction. Thereupon, it was instituted in this Court. It was admitted to hearing today
and was being disposed of in the following manner.

Trial Court found that defendant No. 3 had not made out sufficient cause for setting aside of the ex
parte order against him for being relegated to the stage of his initial default and that the petition
filed by him was also barred by limitation. I shall forthwith advert to the point of limitation which
weighed with the trial Court for turning down the prayer for setting aside of the ex parte order. On
the point of limitation, the trial Court did not think correctly. In Manzoor Ahmad Bhatti, Advocate
v. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another
PLD 1973 Lah. 659, this Court held the view that Order IX, Rule 7, Civil P.C. does not, as such,
provide for a period of limitation. There are two rules which enable defendant to apply for setting
aside the ex parte proceedings taken against him. During the pendency of the suit, such an
application is competent under rule 7, while after the passing of the ex parte decree, application is
maintainable under rule 13 up to the stage, when the case becomes ripe for pronouncing judgment,
Order IX, rule 7 would apply and once the case has become ripe for this purpose the defendant is to
wait for the passing of the ex parte decree and he can approach the Court under rule 13". Obviously,
the view taken by the trial Court runs contrary to the law laid down by this Court in the above-cited
case and, therefore, could not be maintained. As far the good cause shown for setting aside of the
ex parte order, I must affirm that defendant No.3 was negligent. He kept himself out of the field for
almost two years and two months and then returned to join the proceedings. His case was that since
the dispute in the suit was shown to have been compromised, he did not appear at the trial but upon
discovery of true facts, wished to join and defend the suit. There is a view that Court should be
liberal in construing Rule 7 of Order IX, Civil P.C and should not take a stringent view of
defendants absence. All that Rule 7 envisaged was that unless the ex parte order was set aside, the
defendant could not be relegated to the previous position he would have occupied if he had
appeared. If he appeared on the adjourned date of hearing in the suit, he could not be stopped and
precluded from participating iii the proceedings from that stage onward simply because he had not
appeared on the previous hearing and did not show good cause for his non-appearance. As far
joining future proceedings, defendant No. 3 could not be stopped and the rule did not permit t such
a course by the Court. However, as regards occupying the previous position, defendant was
obligated to show good cause for it and unless he did so, he could not be relegated to it. In my view,
he did show a justifiable good cause for setting aside of the ex parte order against him. Therefore,
he deserved to succeed.

In view of the aforesaid, civil revision is allowed; impugned order dated 3-5-1993 of the trial Court
is set aside with the consequence that defendant No. 3 shall be allowed to join the proceedings from
the stage of his initial default in appearance on 12-2-1991 to claim cross-examination of Plaintiffs
witnesses and those of the co-defendants if adverse to his interest and also give his evidence in
defence. However, the order setting aside the ex parte order shall be subject to prior payment of
Rs.2,000 as costs to the plaintiff. It may be observed at the end that the General Attorney of
respondent No, 1 plaintiff in the suit had agreed to the setting aside of the ex parte order on
payment of costs. As far costs in this Court, parties shall bear their own. Parties shall appear before
the trial Court on 11-6-1994. Furthermore, defendant No. 3 shall pay expenses for re-summoning
of witnesses already examined for their cross-examination by him.

AA./M-
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Order accordingly,
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