2008 M L D 1448

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD IDREES---Appellant

Versus

MUHAMMAD KASHIF---Respondent

F.A.O. No.7 of 2007, decided on 11th June, 2008.

Civil Procedure Code (V of 1908)---

----O.IX, R.13, O.XXXVII, Rr.2, 3 & O.XLIII, R.1(c)---Suit for recovery of amount on the basis
of pro note---Application for leave to defend---Dismissal of application---Ex parte decree---
Setting aside of such decree---Defendant appeared before the Trial Court and submitted
application seeking leave of the court to defend the suit---On adjourned date of hearing neither
defendant nor his counsel having appeared, the Trial Court not only dismissed application for
seeking leave to defend suit, but also decreed the suit ex parte---Validity---When ex parte decree
was passed, matter before the court was fixed for hearing of an interim application for leave to
defend suit and the court could only restrict itself to proceedings on the interim application---Act
of the court dismissing the application and simultaneously decreeing the suit was illegal---While
submitting the application for setting aside of the ex parte decree, defendant had agitated the
disputed question of fact in the application which required the recording of proof and disproof
and the order of the Trial Court summarily rejecting application, was violative of principles of
natural justice---Once a disputed question of law and fact was agitated in the application for
setting aside the ex parte decree, the Trial Court was bound to afford an opportunity to the parties
to lead pro and contra evidence---Impugned order was set aside and case was sent back to the
Trial Court with direction to afford an opportunity to the parties to lead pro and contra evidence
with respect to their contentions raised in the application for setting aside the ex parte decree.

Muhammad Aslam v. Falak Sher 1990 CLC 1119 Lah. and Hassan Din and another v. Jalal Din
and 2 others 1992 CLC 33 Lah. ref.

Tariq Aziz Baloch for Appellant.

Saleem Ullah Khan Ranazai for Respondent.

Date of hearing: 26th May, 2008.

JUDGMENT

MUHAMAD ALAM KHAN, J.---Impugned herein is the order of learned Additional District
Judge-V, D.I. Khan vide which the learned Judge rejected the application of the defendant-
appellant, dated 12-6-2007 for setting aside the ex parte decree, dated 27-2-2007.

2. Briefly narrated, the facts of the case are that Muhammad Kashif plaintiff-respondent filed a
suit for recovery of Rs.4,00,000 (Four hundred thousands) on the basis of a pro note, dated 3-8-
2006 under the summary jurisdiction as envisaged under the provisions of Order XXXVII,
C.P.C.
3. On presentation of the plaint, the defendant-appellant Muhammad Idrees appeared before the
trial Court and submitted an application, dated 27-1-2007 seeking leave of the Court and to
defend the suit. The learned trial Court, after calling for replication, adjourned the case to 27-2-
2007 and on the date fixed, neither the defendant-appellant nor his counsel was present and thus,
while dismissing the leave to defend application, the learned Court also decreed the suit of the
plaintiff-respondent on the basis of pro note aforesaid.

4. The defendant-appellant, on coming to know regarding the ex parte decree, moved an

application on 11-6-2007 praying therein that the ex parte decree be set aside and the matter be
decided on merits. The learned trial Court, after calling for replication and hearing the learned
counsel of the parties, rejected the application on 11-10-2007 mainly on the ground that the
defendant-appellant had made appearance before the Court and later on got himself absented and
so, when once knowledge is proved regarding the date of hearing, then, he ought to have
submitted the application within the stipulated period of limitation as envisaged under Article
164 of the Limitation Act. Further ground for dismissal of the application was that no sufficient
cause has been shown by the defendant for setting aside the ex parte decree. It was also held that
the averments in the application regarding the alleged compromise have got no nexus with the
suit proceedings and thus, that cannot be taken into consideration while deciding the question of
setting aside ex parte decree.

5. Mr. Tariq Aziz Baloch, learned counsel appearing on behalf of the defendant-appellant
submitted that in the application, disputed questions of facts had been agitated and the learned
trial Court was not justified to summarily dismiss the application, rather opportunity to lead
evidence pro and contra in support of the application ought to have been given to the defendant-
appellant and thus, the order of the learned trial Court is violative of the well known maxim of
law 'that, "no-one should be condemned unheard", which is so well entrenched in our judicial
system. The learned counsel prayed that the impugned order is not only harsh but also violative
of the principle of natural justice.

6. On the other, hand, Mr. Salimullah Khan Ranazai, learned counsel for the plaintiff-respondent
submitted that the defendant-.appellant was in the know of the proceeding as he had appeared
and submitted and application for leave to defend, thus, he was bound to submit an application
within thirty days of the passing of the ex parte decree as envisaged under the provisions of
Article 164 of the Limitation Act and thus, the order of the learned trial Court is based on sound
interpretation of the provisions of law and learned trial Court has rightly dismissed the
application.

7. I have given my anxious consideration to the submissions made by learned counsel ,for the
parties and have gone through the record of the case minutely.

8. Perusal of the record reveals that on the date when the ex parte decree was passed, the matter
before the Court was fixed for hearing of an interim application for leave to defend and the Court
could only restrict itself to proceedings on the interim application. Thus, the act of the Court,
dismissing the application and simultaneously decreeing the suit, was violative of the dictum
rendered in the case of Muhammad Aslam v. Falak Sher (1990 CLC 1119 Lahore).

9. It is also an admitted fact on the record that while submitting the application for setting aside
of the ex parte decree, the defendant-appellant had agitated the disputed questions of facts in the
application which require the recording of proof and disproof and the order of trial Court
summarily rejecting the application is violative not only of the maxim of law referred to above
but also violative of the principles of natural justice. Once a disputed question of law and fact is
agitated in the application for setting aside the ex parte decree, the trial Court is bound to afford
and opportunity to the parties to lead pro and contra evidence as held in Hassan Din and another
v. Jalal Din and 2 others (1992 CLC 33 Lahore).

10. In view of the facts and circumstances' of the case narrated above, this appeal is accepted, the
order of the learned Additional District Judge-V, D.I. Khan, impugned in this appeal, is set aside
and the case is sent back to the learned trial Court with the direction to afford an opportunity to
the parties to lead pro and contra evidence with respect o their contentions raised in the
application for setting aside the ex parte decree. The application for setting aside the ex parte
decree, dated 11-6-2J07 submitted by Muhammad Idrees defendant-appellant before the learned
trial Court shall be deemed to be pending and the learned trial Court is directed to dispose of the
same on merits keeping in view the observations recorded by this Court. Parties are directed to
appear before the learned Court of Additional District Judge-V, D.I. Khan on 21-6-2008.

H.B.T./101/P Case remanded.