Case Fixed

2 0 11 S C M R 2 9 9
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ghulam Rabbani, JJ
Mrs. ASMA HASSAN---Petitioner
Versus
Mrs. KAUSAR H. HAMID and others---Respondents
Civil Petition No. 353-K of 2010, decided on 24th June, 2010.
(On appeal from the order/judgment dated 19-5-2010/25-5-2010 passed by High

Court of Sindh, Karachi, in Constitutional Petition Nos.373 and 384 of 2010).
Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 16(1)(2)---Constitution of Pakistan, Arts. 185(3) & 199---Tentative rent order,

non-compliance of---Striking off defence of tenant by Rent Controller directing him
to vacate premises within 30 days---Order of Appellate Court dismissing tenant's
appeal and granting him one (1) year's time for vacating premises without notice and
providing opportunity of hearing to landlady and without requiring tenant to keep
making payment of monthly rent during such period---Dismissal of tenant's
constitutional petition by High Court with direction to vacate premises within 30
days---Validity---Tenant had blatantly violated rent order and had not paid rent to
landlady even at appeal stage---Appellate Court had entertained tenant's application
for grant of one year's time on a date when case was fixed for announcement of
judgment, which was shifted to next date and then appeal was dismissed while
granting tenant such time without notice and giving opportunity of hearing to
landlady---Landlady had later on made complaint to Chief Justice of Pakistan and Chief
Justice of High Court against Judge of the Appellate Court---Such complaint was sent to
District and Sessions Judge, who after enquiry opined that Judge of the Appellate Court
had failed to dispose of case with judicial mind; and that his integrity was questionable in
such circumstances---Such clear remarks against Judge of Appellate Court would require
an appropriate action against him---Supreme Court dismissed tenant's petition and
directed office to send copy of its judgment to Chief Justice of High Court to consider
initiating an appropriate disciplinary proceedings against Judge of Appellate Court, if not
taken earlier, in accordance with law.
Page No. 1 of 3
Saathi Muhammad Ishaq, Advocate Supreme Court and K.A. Wahab Advocate-on-
Record for Petitioner.
Nemo for Respondents.
Date of hearing: 24th June, 2010.
JUDGMENT
GHULAM RABBANI, J.---Mrs. Kausar H. Hamid respondent No. 1, herein filed a Rent
Case in which, the Rent Collector, Karachi East, passed an order on application under
section 16(1) of the Sindh Rented Premises Ordinance, 1979 requiring the petitioner,
herein to deposit arrears of the rent within 30 days and to continue depositing future rent
at the rate of Rs.60,094 per month on or before 10th of every calendar month. No
compliance of this order was made, therefore, the defence of the petitioner was struck off
and she was required to hand over vacant possession of the premises in question to
respondent No. 1 within 30 days. Her appeal was dismissed; however, the Appellate
Court granted 1 year's time to the petitioner for vacating the premises in question.
2. Feeling aggrieved, both the parties challenged the above decision by way of 2 separate
Constitutional Petitions. The petition of the petitioner was dismissed by a short order
dated 19-5-2010 followed by reasons dated 25-5-2010, requiring her to hand over within
30 days the vacant possession to the respondent No.1 whose petition was also disposed of
accordingly, vide judgment impugned herein.
3. We have heard learned counsel for petitioner in presence of one Hamayun Latif Hamid,
husband and attorney of respondent No. 1. During the course of arguments, learned
counsel admitted the default in making payment of the rent as held by the learned Rent
Controller; so also, he admitted that the rent was not paid to the respondent No. 1 at the
appeal stage. Learned counsel, however, urged that the order of the Appellate Court
granting 1 year's time to vacate the premises be revived. When asked as to under what
provision of law the period of time asked for could be revived; particularly, where the
petitioner had, blatantly, violated the order of the Rent Controller to pay the rent; she had
failed to show scruples to pay the determined rent subsequently, and where the Appellate
Court had, without hearing the land lady granted such a long period of time with obvious
restraint and deviance from normal course to put a condition requiring the petitioner to
keep making payment of monthly rent during the extended period much to the detriment
of the land lady to suffer financially, learned counsel is not in a position to furnish any
satisfactory reply.
4. On perusal of impugned judgment we have noted that the learned Appellate Court
having heard the arguments of both the parties on 11-2-2010 fixed 15-2-2010 for
announcement of judgment, which was deferred to 17-2-2010 when on an application of
petitioner for grant of 1 year's time for vacating the tenement the date of announcement
of judgment was shifted to next date viz. 18-2-2010 when the appeal of the petitioner was
dismissed and 1 year's time was granted without any notice to the other side and without
Page No. 2 of 3
providing, opportunity of hearing to the land lady. It appears that the landlady/respondent
No. 1 had, subsequently, made a complaint to the honourable Chief Justice of Pakistan
and the honourable Chief Justice of High Court of Sindh making allegation of preparation
of the false case diary for 17-2-2010 by learned Judge of the Appellate Court. The said
complaint was sent to the District and Sessions Judge, East for enquiry, who concluded
the same with following observation:--
"From the bare reading of the judgment and keeping on record for grant of one
year's time for vacating the premises to the appellant/tenant without notice and or
hearing the other side on the application anyone can opine that the Ld. Judge has
failed to dispose of the appeal with judicial mind and would not feel any
hesitation to say that the integrity of the Ld. Judge is questionable in such
circumstances."
5. Having discussed the matter as above and on examining the material made available on
record, we do not find any legal or factual defect in the impugned judgment to warrant
interference. Therefore, we dismiss this petition. However, before parting, we feel
constrained to observe in the given circumstances, where a clear finding has been given
that, "the appellate Judge failed to dispose of the case with judicial mind" and a very
serious remark has also appeared against him in the term that the integrity of the learned
Judge is questionable in such circumstances", it requires an appropriate action against
him. We, therefore, direct the office to send a copy of this judgment to Hon'ble Chief
Justice of High Court of Sindh to consider initiating an appropriate disciplinary
proceedings against the concerned judge, if not already taken, in accordance with law.
S.A.K./A-102/SC Petition dismissed.
Page No. 3 of 3
2010 S C M R 1422
Pres en t: Nasir-ul-Mulk and Khilji Arif Hussain, JJ
TASLEEM KHAN---Petitioner
Versus
SHER GHULAM and others---Respondents
Civil Petition No.228-P of 2006, decided on 2nd March, 2010.
(On appeal from the judgment/order dated 31-1-2006 of the Peshawar High Court,
Peshawar passed in Criminal Revision No.50 of 2003).
(a) Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Non-production of further evidence by plaintiff on date fixed due to

absence of his counsel---Closure of plaintiff's evidence and dismissal of suit by Trial
Court upheld by Appellate Court and in revision by High Court---Validity---Plaintiff had
completed evidence of official witness with extraordinary delay of six years---Trial
Court had granted plaintiff further adjournment of a period of more than two months with
clear indication that entire evidence must be produced, otherwise his evidence would be
closed under O. XVII, R. 3, C.P.C.---Absence of plaintiff's counsel on relevant date
could not excuse absence of his witnesses---Plaintiff had been provided last opportunity,
but still his evidence was not available, thus, Trial Court was left with no alternative but
to proceed in accordance with law---Trial Court had dismissed suit on basis of evidence
on record---Supreme Court refused to grant leave to appeal to plaintiff.
(b) Civil Procedure code (V of 1908)---
---- O. XVII, R. 3---Absence of counsel could not excuse absence of plaintiff's witnesses
on date fixed for recording his evidence.
Waseem-ud-Din Kattak, Advocate Supreme Court for Petitioner.
Page No. 1 of 3
Date of hearing: 2nd March, 2010.
JUDGMENT
KHILJI ARIF HUSSAIN, J.---Aggrieved by the dismissal of his revision by the

impugned judgment dated 24-10-2005 passed by learned Peshawar High Court,
Peshawar, the petitioner/plaintiff seeks leave to appeal.
2. The petitioner/plaintiff instituted a declaratory suit on 3-12-1995 in the Court of Senior

Civil Judge, Lakki Marwat, to the effect that the suit property, described in the plaint, was
purchased by the ancestor of defendant No.1 and mutation No.2488 dated 4-4-1950, was
wrongly effected and similarly inheritance mutation No.2789 attested on 20-11-1957 was
also a result of fraud and mutation No.4318 dated 29-5-1983 by the ancestor of the
respondent/defendant Nos.2 and 3 in favour of respondent/defendant No.1 was an
attempt to deprive the petitioner/ plaintiff of his due right. The petitioner/plaintiff prayed
that all the above mentioned mutations be declared illegal incorrect and ineffective upon
his rights and also sought possession of the suit property.
3. In support of his suit, the petitioner/plaintiff produced only one witness i.e. Halqa
Patwari P.W. and on the dates fixed by the trial Court for recording further evidence of
his side, he failed to produce any evidence and the learned trial Court was left with no
alternative but to proceed under Order XVII, Rule 3, C.P.C., and on the basis of the
evidence adduced before him, learned Civil Judge, Lakki, by his judgment and decree
dated 24-6-2002, dismissed the suit of the petitioner/plaintiff, against which he filed
appeal, which too was dismissed by learned District Judge, Lakki, by his judgment and
decree dated 10-3-2003. There against the petitioner/plaintiff preferred civil revision,
which has also been dismissed by learned Peshawar High Court, Peshawar, by its
impugned judgment dated 31-1-2006, giving rise to this petition.
4. Mr. Waseem-ud-Din Khattak, .ASC in support of the petition, vehemently contended

that proper opportunity for producing the evidence was not provided to the
petitioner/plaintiff by the trial Court while dismissing his suit, the appeal filed by him
too could not succeed, and so also the revision preferred thereagainst by the
petitioner/plaintiff was dismissed by learned High Court committing error of law by not
appreciating this aspect of the matter.
5. After hearing learned counsel and, with his assistance, perusing the record, we find that
trial Court has rightly opted the provision of Order XVII Rule 3, C.P.C. and dismissed the
suit on the basis of the evidence produced before it and learned appellate Court as well as
learned High Court have also come to the right conclusion with cogent reasons discussing
the matter comprehensively. Para 6 of the impugned judgment of the High Court is
reproduced for ready reference:--
Page No. 2 of 3
"In any case after an extraordinary delay of six years, the evidence of the official
witness was completed on 5-2-2002, the petitioner/plaintiff should have produced
the entire evidence on 5-4-2002. Absence of his counsel cannot excuse the absence
of his witnesses. Further adjournment to a period of more than two months i.e. 24-
6-2002, was with the clear direction that the entire evidence must be produced,
otherwise the evidence shall be closed under Order XVII Rule 3, C.P.C. The last
opportunity was provided but still the evidence was not available. Hence the Court
was left with no alternative but to proceed in accordance with law. No illegality or
irregularity has been committed by the learned trial Court. The argument with regard
to the illness of a witness has not been raised on the day whey the evidence was
closed. It was taken as a ground in the memorandum of appeal but even then neither
the name of the witness nor nature of illness or .any proof thereof was produced. No
evidence, whatsoever, in this regard was placed on file even in the revision
petition."
6. The trial Court had shown sufficient indulgence and there does not appear any
impropriety or defect for ultimately closing side of the petitioner/plaintiff on account of his
consistent failure to produce evidence despite seeking repeated adjournments.
7. As regards the contention of learned Advocate for the petitioner that trial Court could not
dismiss the suit without considering the evidence on record, has no cavil with this
proposition. From the record it appears that not only trial Court but also appellate Court on
the basis of evidence on record came to the conclusion that petitioner/ plaintiff failed to
prove his claim.
8. To satisfy ourselves, we called upon the petitioner to refer to any piece of evidence on
record, on the basis of which decree can be passed in his favour, which he failed to point
out.
9. In this view of the matter, there seems no infirmity in the impugned judgment warranting
interference by this Court.
10. In the given circumstances, there is no substance in this petition. The same is dismissed
and leave refused, accordingly.
S.A.K./T-1/SC Leave refused.
Page No. 3 of 3
2010 S C M R 322
Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Jawwad S.

Khawaja, JJ
Dr. AGHA IJAZ ALI PATHAN---Petitioner
Versus
THE STATE---Respondent
Criminal Revision Petitions Nos. 9 of 2008 in Criminal Miscellaneous Application

No.181 of 2007 in Criminal Miscellaneous Application No.282 of 2006 in Criminal
Petition No.361-L of 2004, decided on 15th October, 2009.
(On review from the order dated 14-1-2008 passed by this Court in Cr.M.A. No.181 of
2007 in Cr.M.A. No.282 of 2006 in Cr.P.L.A. No.361-L of 2004 and on appeal from
the judgment dated 17-5-2004 passed by the Lahore High Court, Lahore in Cr.A.
No.1749 of 2000).
National Accountability Ordinance (XVIII of 1999)---
----S. 10---Constitution of Pakistan (1973), Art.185(3)---Petition had already been

converted into appeal and allowed by a short order of Supreme Court acquitting the
accused---Said order was subsequently recalled and the case was directed to be fixed for
rehearing after notice to the parties---Validity---Short order had been recorded in clear
terms and signed by Judges of Supreme Court, whereby the judgments of Trial Court and
Appellate Court were set aside, conviction and sentence awarded to accused were also set
aside and he was acquitted by the charge-Decision so made and announced through the
short order was presumed to be solemn, well considered, conscious, deliberate and a final
verdict covering all points arising out of the case, and as such the case ought not to have
been fixed for re-hearing---Admittedly, the order for rehearing the case had been passed
without hearing the accused--Lis in the matter could not be treated to be pending having
already attained finality in the eyes of law---Order recalling the short order with direction
to fix the case for rehearing after notice to the parties was, therefore, set aside, as a result
the short order stood revived and operative in law.
The State v. Asif Adil and others 1997 SCMR 209 rel.
Page No. 1 of 7
Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Fateh
Khan v. Boze Mir PLD 1991 SC 782; Abdul Rashid v. Abdul Salam and others 1991
SCMR 2012 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR
584 ref.
Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court and Ch. Akhtar Ali,
Advocate-on-Record for Petitioners.
Abdul Baseer Qureshi, Deputy Prosecutor General NAB and Dr. M. Asghar Rana,
Addl. P.G. NAB for the State/NAB.
Date of hearing: 15th October, 2009.
JUDGMENT
GHULAM RABBANI, J.---The petitioner is a qualified doctor. He appeared in

competitive examination of CSS held for the year, 1995 and having secured 2nd
position was allotted DMG group. While he was serving as Assistant Commissioner
in the Province of the Punjab a Reference was filed against him by the Acting
Chairman NAB. Pursuant to that he was tried by the Accountability Court No.IV,
Lahore and on being found guilty of an offence of corruption and corrupt practices
within the meaning of section 9 of NAB Ordinance, 1999 (hereinafter referred to as
the said Ordinance) he was awarded punishment under section 10 of the said
Ordinance to suffer R.I. for four years and a fine of Rs. five lac; in default whereof
to undergo further R.I. for one year, etc. vide judgment dated 22-11-2000. Appeal
thereagainst was dismissed by learned Division Bench of the Lahore .High Court,
Lahore vide judgment dated 17-5-2004, with the following observations:
"In the afore-referred circumstances the sentence of imprisonment for four

years was on the higher side and ends of justice-would have been met if he
had been awarded sentence of imprisonment for a period of two years and the
sentence of fine to the tune of Rs.2,00,000 would have been sufficient.
However, since the appellant has undergone the entire period of sentence of
imprisonment we are inclined to reduce the sentence to what he has already
undergone. Since the amendment in section 15 of the NAB Ordinance, 1999
came into -effect during the pendency of this appeal, we are inclined to
further modify the sentence in terms of this section and hold that the
appellant shall stand disqualified for a period of 10 years in terms of the
amended provision and not 21 years as directed by the learned trial Court
which was in accord with the unamended section 15 of the NAB Ordinance,
1999."
Feeling aggrieved the petitioner file Cr.P.L.A. No.361-L of 2004 before this Court,
which was dismissed for non-prosecution by this Court vide order dated 27-3-2006.
Page No. 2 of 7
Criminal Miscellaneous Application bearing No.282 of 2006 made by the petitioner
for restoration of the main petition was also dismissed for non-prosecution vide
order dated 22-3-2007. Subsequently, the petitioner made another Criminal
Miscellaneous Application bearing No.181 of 2007, which too, was dismissed vide
order dated 14-1-2008 petitioner, thereafter, filed Criminal Review Petition No.9 of
2008, which was heard by a three Members Bench and was allowed in the following
terms vide order dated 14-11-2008.
"For the reasons to be recorded later, Criminal Review Petition No.9 of 2009
is allowed, orders of this Court dated 14-1-2008, 22-3-2007 and 27-3-2006
are recalled, Criminal Petition No. 361-L of 2004, is converted into appeal
and is allowed. Consequently, the impugned judgment of the High Court as
well as of the Trial Court are set aside, conviction and sentence awarded 4o
the petitioner is also set aside and he is acquitted of the charges.
(Sd.)
Abdul Hameed Dogar, C.J.
(Sd.)
Ijaz-ul-Hassan Khan, J.
(Sd.)
Ch.Ejaz Yousaf, J.
It appears that no reasons were recorded,, rather above-referred short order dated
14-11-2008 was, later, re-called and the case was ordered to be fixed for re-hearing
after notice to the parties vide order dated 19-3-2009-, reproduced as follows:
"While dictating judgment in the instant case answer to certain questions,

inter-alia, as to why the amount of interest accrued on the money deposited
in the Accounts NO.PLS 215, PLS 916, CD-1184 and Special Saving
Account No.SSA-90, etc. was withdrawn by the petitioner and Was kept with
him till initiation of proceedings against him i.e. during the 'period from 14-
4-2000 to 31-8-2000 etc. could not be found as such short order dated 14-11-
2008 announced in Court may be recalled and the case may be fixed for re-
hearing after notice to the parties.
(Sd.)
Ch, Ejaz Yousaf; J
Page No. 3 of 7
Hon. Mr. Justice Ijaz-ul-Hassan Khan
Agreed
(Sd.)
Ijaz-ul-Hassan Khan
Hon. C.J.
I agree.
(Sd.)
Abdul Hameed Dogar, C.J
2. In the above backdrop of the case this matter has come up before us. We have
heard learned counsel for the petitioner and Additional Deputy Prosecutor-General,
NAB. Learned counsel for, the petitioner has contended that a short order, for the
reasons to be recorded, signed and announced by the Judges like the one in the
instant case, disposing of the case determining the rights and liabilities of the parties
finally, is fully operative in law with all legal consequences to follow. He placed
reliance on the case reported as The State v. Asif Adil and others 1997 SCMR 209.
Learned counsel has stated that in the instant case, since a short order was recorded
and was duly signed by a Three Member Bench of the this Court whereby Criminal
Petition No.361-L of 2004 was converted into appeal and allowed; the judgments of
Trial Court as well as of the High Court were set aside, conviction and sentences
awarded to the petitioner were, too, set aside and he was acquitted of the charge, no
lis against the petitioner, thereafter, was pending to' be fixed for re-hearing.
3. On the other hand, learned Deputy Prosecutor General NAB, has, vehemently,
opposed this proposition and has stated that the review petition filed by the
petitioner shall be deemed to be pending in view of order dated 19-3-2009.
4. We have carefully gone through the case law cited (supra) by learned counsel for
the petitioner. In that case a Division Bench of the High Court of Sindh comprising
Muhammad Aslam Arain and Shoukat H. Zubedi, JJ, disposed of two sets of appeals
viz. appeals filed by convicts against their convictions and sentences and the appeals
filed by the State against acquittal of co-accused, vide order, dated 24-2-1994, in the
following terms:--
"Convicts' appeals .---Arguments concluded. For reasons to be recorded

separately, 'we accept this appeal' set aside the conviction and sentence and
acquit the appellant. He shall be released forthwith unless required in any
other case.
Page No. 4 of 7
State's acquittal appeals.---Arguments concluded. For reasons to be recorded
separately, the appeal is dismissed."
The same Bench also disposed of two cases, however, before the reasons could be
recorded in the above matters, Shoukat H. Zubedi, J. who was an Additional Judge, was
not confirmed and ceased to be Judge. w.e.f. 23-3-1994. Other learned Judge Mr. Justice
Muhammad Aslam Arain, J. as then he was, on 7-7-1994 passed the order that "Short
order passed in the above appeals (on 24-2-1994) be treated as final orders." The learned
Judges retired from service w.e.f. 11-5-1995 on attaining the age of superannuation. The
State, therefore, filed petition for leave to appeal against the above referred short order
dated 7-7-1994 before this Court which was dismissed on 20-11-1996. Ajmal Mian, J., as
then he was, having referred to plethora of the case law, expressed that among others
following legal principles are deducible:
(i) ………………………….
(ii) ………………………….
(iii) ………………………….
(iv) ………………………….
(v) ………………………….
(vi) ………………………….
(vii) ………………………….
(viii) that the short orders which have been recorded and signed by the judges
concerned and have been pronounced in Courts shall be fully operative in law and
in consequence thereof, the cases in respect of which the same have been passed
shall stand disposed of in law."
Having said so, it was held that the short orders under reference passed by the Division
Bench of High Court of Sindh, which were duly signed and pronounced by the learned
Judges, for all intents and purposes, in view of the situation obtaining, were final orders
and could not be set aside and the case could not be remanded for re-trial of the accused
who stood acquitted in some of the appeals by the High Court and in some of the appeals
by the trial Court as well as by the High Court. It was observed that:--
Page No. 5 of 7
"12. In the case in hand, Shoukat H. Zubedi, J., one of the learned Judges of the
Division Bench which heard the above matters and passed short orders, was not
confirmed as a permanent Judge on 24-2-1994 and, therefore, had ceased to be a
Judge. It was not possible to have reasons of the above Division Bench as a
judgment in support of the above short orders. However, it was open to the other
learned Judge available, namely, Muhammad Aslam Arain, J. to have recorded
reasons in terms of Rule 3 in Chapter 4-H under the sub-heading "Rules of
Procedure in Appeals in Volume V of the Rules and Orders of the High Court
quoted hereinabove in para. 3, which would have been deemed to be minutes and
not judgment. This was not done by the above learned Judge. On the contrary, on
7-7-1994 he ordered that the short orders in appeals passed on 24-2-1994 be
treated as final orders. He also ceased to be a Judge with effect from 11-5-1995
upon his retirement. The position which has now emerged is that none of the two
Judges of the Division Bench concerned ,is available and, therefore, the reasons in
terms of above Rule 3 cannot be recorded. The point in issue is, as to whether the
above short orders whereby the convicts appeals were allowed and the acquittal
appeal were dismissed, can be treated as final orders for the purpose of disposal of
the appeals concerned. The answer of the above controversy is very aptly
provided in the judgment in the case of in re; Office Reference dated 28-4-1981
(supra) decided by a Division Bench of the High Court of Sindh comprising Zafar
Hussain Mirza and Nasir Aslam Zahid, JJ. (as their lordships then were), namely,
that the cases in which short orders have been recorded and signed by the
concerned Judges, stand disposed of and the said short orders are fully operative.
The above view is in line with the view earlier taken by another Division Bench
of the same High Court quoted hereinabove in para. 10(viii). Somewhat similar
view was taken by a Division Bench of the Lahore High Court comprising A. R.
Sheikh and Shafiur Rehman, JJ. In the case of Abdur Rahim v. Taj Muhammad,
(supra), in which short order recorded in Urdu allowing a revision petition by the
Settlement Commissioner under the Displaced Persons (Compensation and
Rehabilitation) Act was treated as a final order.
13. We are inclined to hold that the short orders under reference passed by the
above Division Bench of the High Court of Sindh, which were duly signed and
pronounced by the learned Judges, for all intents and purposes in view of the
situation obtaining, are final orders. The same cannot be set aside and the cases
cannot be remanded for re-trial of the accused who stand acquitted in some of the
above appeals by the High Court and in some of the appeals by the trial Court as
well as by High Court. Our above view is supported by a well settled proposition
of law that a party should not be made to suffer on account of an act/omission on
the part of Court or other State functionaries. In this regard; reference may be
made to the case of Muhammad Hanif and others v. Muhammad and others PLD
1990 SC 859, the case of Fateh Khan v. Boze Mir PLD 1991 SC 782, the case ' of
Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 and the case of
Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584."
5. In the instant case a short order dated 14-11-2008 was recorded in clear terms and was
signed by Judges of this Court, whereby the judgments of Trial Court as well as of
Appellate Court were set aside, the conviction and sentence awarded to the petitioner
were also set aside and the petitioner was acquitted of the charge. Needless to observe
that the decision so made and announced through Short Order is presumed to be solemn,
well considered, conscious, deliberate and a final verdict covering all points arising out of
the case. Considered as such, in our view it ought not to have been fixed for re-hearing.
Admittedly, the order dated 19-3-2009 was passed without hearing the petitioner. Having
said so, in the light of above cited case (1997 SCMR 209), we are clearly of the view that
the lis in the instant matter cannot be treated to be pending having already attained the
finality in the eyes of law. Therefore, the order dated 19-3-2009 recalling the short order
with direction that the case be fixed for re-hearing after notice to the parties is set aside;
as a result the short order dated 14-11-2008 shall stand revived and operative in law.
Office is directed to consign the file to record.
Page No. 6 of 7
N.H.Q./I-20/S Order accordingly.
Page No. 7 of 7
2010 C L C 807
[Northern Areas Chief Court Gilgit]
B efore Muzaffar Ali, J
MUHAMMAD MUSA----Petitioner
Versus
JAN MUHAMMAD and 3 others----Respondents
Civil Revision No.24 of 2008, decided on 20th August, 2009.
Civil Procedure Code (V of 1908)---
----O. IX, R.6(1)(a)---Ex parte proceedings against defendant---Provisions of O.IX

R.6(1)(a), C.P.C. had empowered the court to proceed against defendant ex parte and
pass a decree without recording evidence, if he did not appear b e f o r e the court when
the suit was called on for hearing; and if summons had been duly served, O.IX R.6(1),
C.P.C.---Words "the suit was called for hearing" occurring in O.IX, R.6(1)(a), C.P.C.
had legal importance---Word " h e a r i n g " in the context meant (a) a date fixed for
hearing of final arguments on the subject-matter, (b) a date fixed for evidence, ( c ) a
date fixed for framing of issues by the courts, while a date fixed for hearing of
interlocutory matters, was not a date of hearing of the case---In the present case date on
which the defendant was proceeded ex parte was not a date fixed for hearing of the suit,
but was supposed to be a date to deal the interlocutory matter; and the date was not
fixed by the Trial Court, but was fixed by the Chief Court directing the parties to attend
Trial Court---Ex parte proceedings on the said date were without jurisdiction and null
and void ab initio---Both the impugned orders/decree passed by the Trial Court as well
as Appellate Court below were set aside and case was remanded to the Trial Court to
hear the application filed by the defendant for setting aside ex parte proceedings against
him and to dispose the same on merits.
1987 SCMR 733; PLD 1975 SC 678; PLD 1973 Lah. 659; 1993 SCMR 1949; 1992
SCMR 707; PLD 1991 SC 1104; PLD 1990 SC 285; 1997 CLC 1080; PLD 1993 Lah.
564; PLD 1964 SC 97; PLD 1981 SC 21; 1991 MLD 63; 1990 CLC 1473; PLD 1986 Q.
121; 1986 CLC 1320; PLD 1981 Lah. 508; PLD 1971 Lah. 746; 1992 SCMR 707; 1987
SCMR 733; PLD 1975 SC 678; 1997 CLC 1080; 1993 CLC 926; 1990 CLC 1473; 1988
MLD 69; PLD 1976 Pesh. 108; 1973 SCMR 103; PLD 1964 SC 97; 1986 CLC 1320;
1986 CLC 2507; PLD 1986 Quetta 121; 1985 CLC 471; 1983 CLC 1238; PLJ 1982 Lah.
Page No. 1 of 5
261; PLD 1981 Lah. 508; PLD 1971 Lah. 746; PLD 1970 Lah. 412; PLD 1967 Lah. 151;
PLD 1964 B.J. 58; 1993 SCMR 1949; PLD 1977 SC 599; 1973 SCMR 103 and PLD
1971 Quetta 77 ref.
Javed Iqbal for Appellant.
Manzoor Ahmed for Respondents.
Date of hearing: 20th August, 2009.
JUDGMENT
MUZAFFAR ALL, J.--- This case has been remitted back to me by the august Supreme
Appellant Court, Northern Area Gilgit, after setting aside judgment dated 14-11-2007
passed by me with the direction to give de nove judgment in the case with reasons,
treating the 2nd appeal as revision.
The facts of the case are as such that the Civil Suit No.73 of 2002 was instituted on 23-1-
2002 in the Court of Civil Judge, 1st Class, Astore and on 23-4-2003, the suit was
transferred to the Court of Civil Judge, Chillas by the Additional District Judge, Diamer.
The parties to the suit appeared before the learned Civil Judge, Chillas and the suit was
fixed on 10-6-2004 for plaintiff's evidence. On 10-6-2004 the defendant remained absent
from the Court but a counsel named in the order sheet as Mir Muhammad, stated at bar
that he has been engaged by defendant and he would submit his Wakalat Nama on the
next date and the request of the named counsel was allowed by the Court. The plaintiffs
also failed to produce their witnesses, but they submitted an application under section
151, C.P.C. with the prayer to file list of witnesses. The application was refused and the
case was again fixed for plaintiff's evidence on 9-8-2004 and on 9-8-2004, the defendant
was proceeded ex parte and statements of P.Ws. were recorded by depriving the
defendant from his right to cross-examine the P.Ws. as he was absent and proceeded ex
parte.
On 24-8-2004, when the suit was fixed for consideration, the defendant appeared before
the Court and submitted an application for setting aside ex parte proceedings dated 9-8-
2004 against him. The case was fixed on 11-9-2004 for replication to the application and
the plaintiffs submitted their replication against the application on the fixed date and the
case was adjourned for arguments on the application on 30-10-2004 but the arguments on
the application could not be heard on the appointed date as the record of the case was
called by this Court in connection with transfer application. This Court refused the
transfer application and the parties were directed to attend the Court of Civil Judge
Chillas again on 5-3-2005. The defendant failed to attend the Civil Court, Chillas on the
above date and he was once again proceeded exparte without disposing the application
dated 24-8-2004 for setting aside the ex parte proceedings dated 9-8-2004. The ex parte
proceedings dated 5-3-2005 followed the decree dated 23-6-2005.
Page No. 2 of 5
The decree dated 23-6-2005 was challenged before learned Additional District Judge,
Astore directly and the learned Additional District Judge took cognizance of the same
without it being assigned to him under section 4(2) of the Civil Courts Ordinance 1962
(hereinafter called Ordinance) and dismissed the appeal on the point of limitation. The
order passed by the learned Additional District Judge was impugned before me and I
without going into merits deeply, passed the order dated 14-11-2007 and remanded the
case to the trial Court by setting aside the impugned orders passed by both the learned
lower Courts. The order dated 14-11-2007 was assailed before august Supreme Appellate
Court Northern Areas and honourable the Judges of the Supreme Appellate Court being
dissatisfied with the order, remitted the case hack to me with the direction to pass de novo
judgment on the subject with cogent reasons as required by law to follow by a Judge. At
this juncture, I without suffering from egotism concede, that the august Supreme Court
has very rightly pointed out my slackness. So I as per direction of the august Supreme
Appellate Court converted the 2nd appeal into revision and heard the learned counsel for
the parties and reached to the conclusion as under: ---
On going through the record and the relevant laws with the assistance of both the counsel,
I feel that both the impugned judgments required to be examined in the light of Order IX,
rule 6(1)(a), C.P.C.
Order IX, rule 6(1)(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];
This provision of law empowers Court to proceed a defendant ex parte, if he does not
appear before the Court when the suit is called on for hearing and if summons has duly
been served, the Court may proceed ex parte and pass decree without recording evidence.
In this provision the words "the suit is called for hearing" are having very legal
importance and the higher judiciary as well as the august Supreme Court of Pakistan has
interpreted the word "hearing" as means (a) a date fixed for hearing of final arguments on
the subject-matter (b) a date fixed for evidence (c) a date fixed for framing of issues b the
Court. While a date fixed for hearing of interlocutory matters is not a date of hearing of
the case for instance a date fixed for hearing of an application submitted to meet a
situation arisen during pendency of the suit is not a date which comes within the ambit of
"date of hearing" of the suit and if any party to the suit does not appear on such date
before the Court, then the Court can dispose of the application by deciding the
interlocutory issues arisen therein and the suit itself cannot be disposed of. In holding the
above view, I have been supported by case-law as under:---
(1) 1987 SCMR page 733, (2) PLD 1975 SC page 678, (3) PLD 1973 Lah. page
659, (4) 1993 SCMR page 1949, (5) 1992 SCMR page 707, (6) PLD 1991 SC
page 1104, (7) PLD 1990 SC page 285, (8) 1997 CLC page 1080 and (9) PLD
1993 Lah. page 564.
Keeping the above discussion in view, I perused the record of the case and visited the
order sheets maintained by the trial Court thereby, the suit was proceeded ex parte on 9-8-
2004 against the defendant for his absence from the Court on the said date and statements
of P.Ws. were recorded as the date fixed for, and the suit was fixed for consideration on
24-8-2004. The defendant appeared before the Court on 24-8-2004 and submitted an
application for setting aside the proceedings dated 9-8-2004 taken against him and the
date was adjourned for replication to the application and after receiving the replication,
issue under application was fixed for arguments on 30-10-2004, but before the arguments
Page No. 3 of 5
on the application were heard, the record was called to meet a transfer application by this
Court and the case was remitted back to the Civil Court by this Court fixing the date as 5-
3-2005 to appear the parties before the trial Court. On 5-3-2005, the defendant failed to
appear before the trial Court on the appointed date and the trial Court once again
proceeded the defendant ex parte and the suit was fixed for consideration which followed
the judgment dated 23-6-2005 instead of dealing the previous application submitted by
the defendant for setting aside the ex parte proceedings dated 9-8-2004 against him as the
same was subjudice to dispose of prior to record was called by this Court, hence the
above date on which the defendant was proceeded second time was not a date of hearing.
Since, the date, on which the defendant was proceeded ex parte was not a date fixed for
hearing of the suit but was supposed to be fixed to deal the interlocutory matter under the
application dated 24-8-2004 and also the date was not fixed by the trial Court but was
fixed by this Court directing the parties to attend the trial Court as such the ex parte
proceedings on the date were without jurisdiction and null and void ab initio. I am
supported in holding the view by the case laws (1) PLD 1964 SC 97, (2) PLD 1973 Lah.
page 659, (3) PLD 1981 SC page 21, (4) 1991 MLD 63, (5) 1990 CLC 1473, (6) PLD
1986 Quetta 121, (7) 1986 CLC 1320, (8) PLD 1981 Lah. 508 and (9) 1971 Lah. 746.
The judgment dated 23-6-2005 though has been passed on merits, discussing the
evidence adduced by the plaintiffs but the same follows the ex parte proceedings against
the defendant and the ex parte proceedings having no legal effects, as the date was not for
hearing of the as such no limitation will run against it and it can be set aside under section
151, C.P.C. and once the section 151 is taken into cognizance then Article 181 of the
Limitation Act governs the issue which provides 3 years of limitation period. The learned
1st Appellate Court has also erred in law by ignoring this crucial legal aspect of the case,
hence the order dated 17-5-2007 has no legal effect and also without jurisdiction under
the Ordinance as the Appeal No.CA5 of 2005 has been taken cognizance of, without
being the same entrusted to the learned Additional District Judge by the District Judge
concerned. On the above point of law, I have been assisted by the case-law cited as (1)
1992 SCMR 707, (2) 1987 SCMR 733, (3) PLD 1975 SC 678, (4) 1997 CLC 1080, (5)
1993 CLC 926, (6) 1990 CLC 1473, (7) 1988 MLD 69, (8) PLD 1976 Pesh. 108, (9)
1973 SCMR 103, (10) PLD 1964 SC 97, (11) 1986 CLC 1320, (12) 1986 CLC 2507, (13)
PLD 1986 Quetta 121, (14) 1985 CLC 471, (15) 1983 CLC 1238, (16) PLJ 1982 Lah.
261, (17) PLD 1981 Lah. 508, (18) PLD 1971 Lah. 746, (19) PLD 1970 Lah. 412, (20)
PLD 1967 Lah. 151, (21) PLD 1964 B.J. 58, (22) 1993 SCMR 1949, (23) PLD 1977 SC
599, (24) 1973 SCMR 103 and (25) PLD 1971 Quetta 77.
The above discussion, after going through the relevant case-law made by the august
Supreme Court of Pakistan and High Courts, has persuaded me to hold that both the
impugned orders are without jurisdiction, void and having no legal effect as such it is
least important to go into the point that either the defendant has shown sufficient or good
cause for his absence from the Court on the appointed date or not, as this point would be
important when the appointed date was proved to be the date of hearing of the suit.
Consequent upon the above discussion, both the impugned orders/decree passed by the
learned trial Court as well as the learned Additional District Judge are set aside and the
case is remanded to the trial Court to hear the application dated 24-8-2004 filed by the
defendant for setting aside ex parte proceedings dated 9-8-2004 against him and to
dispose the same on merits then to move towards the suit. The trial Court is also directed
to expedite the trial keeping in view the delay caused in the matter. The defendant is also
penalized to pay cost of Rs.10,000 for his irresponsible attitude in the case, parties to
appear before the trial Court on
Page No. 4 of 5
H.B.T./3/Glt Case remanded.
Page No. 5 of 5
2010 C L C 1416
[Gilgit-Baltistan Chief Court]
Before Sahib Khan and Muzaffar Ali, JJ
ABDUL REHMAN LONE---Appellant
Versus
ABDUL WAHAB LONE and another---Respondents
C.F.A. No.13 of 2006, decided on 28th April, 2010.
----O. VII, R.2, O.IX, R.13 & O. XLIII, R.1(d)---Suit for recovery of amount---Date of
hearing'---Scope---Ex parte decree, setting aside of---In the present case, when the matter
was fixed for final order, Trial Court took a turn, without assigning any reason, and fixed
the case for re-arguments, but passed ex parte decree which was set aside; again the case
was fixed for further proceedings and impugned decree of ex parte was passed---Date on
which impugned ex parte decree was passed, in circumstances, could not be said to be
"date of hearing"---Once case was fixed for orders after getting the written arguments, the
proper course was to give its judgment on merits; and even when the case was fixed for
re-arguments and the parties made lame excuse, proper course was to give judgment on
merits---When defendants were absent from the court, proper course for the court was to
deliver judgment on merits---Trial Court, in circumstances, had failed to exercise the
jurisdiction vested with and patently erred in law by passing ex parte decree without
going into merits of the case---Impugned ex parte decree was set aside and case was
remitted to the Court, to deliver judgment on merits.
Mst. Shamshad Begum alias Sharam Khatoon v. Distinct and Sessions Judge Dadu
through Presiding Officer and 4 others 1998 CLC 1128 ref.
Abdul Hameed for Appellant.
Johar Ali for Respondents.
Page No. 1 of 3
JUDGMENT
MUZAFFAR ALI, J.---This 1st appeal has been submitted against the ex-parte decree
dated 15-4-2005, passed by the learned Civil Judge Astore. The decree was refused to set
aside vide judgment dated 21-9-2006, passed by the learned Civil Judge Astore declaring
the application under Order IX, Rule 13, C.P.C. to be time-barred and without sufficient
cause.
The facts of the case briefly are as such that, the present respondents filed Suit No.62/95,
before the trial Court for recovery of money against the present appellant and others. The
suit got maturity for final arguments after a longstanding proceedings in the trial Court
and on 15-4-2005, the learned trial Court passed the ex parte decree to get rid of the suit,
hence this appeal before this Court against the ex parte decree.
We heard the learned Counsel for the parties and visited through record of the case and
have taken aback by going through the Order sheets maintained by the learned trial
Court, particularly, our surprise reached to the climax, when we read the Order sheets
dated 25-6-2002, 6-11-2002, 10-12-2002, 5-4-2003 and 8-5-2003. The Order sheet dated
25-6-2002 reveals that, the case was referred to some arbitrators, who felt reluctant to
decide the case as such the learned trial Court fixed the case for written arguments to
submit on 20-8-2002, but on the appointed date the case was again fixed for arguments
without demanding written arguments, then on 6-11-2002, the Court honourd the written
arguments submitted by the parties and case was fixed for orders on 10-12-2002 and on
the appointed date the plaintiff remained absent, but sent an application for adjournment,
the request was granted and case was fixed for orders on 5-4-2003, on the appointed date,
the parties attended the Court, but their counsel remained absent. The Court despite
announcing the order, granted time for re-arguing the case without stating any reason not
to pass Order and 8-5-2003 was fixed for re-arguments, on the appointed date, the parties
attended the Court, but the Counsel for the defendants remained absent from the Court
and case was adjourned for 23-6-2003, with the warring to hear the one sided arguments,
if the defendants or their counsel remained absent and like wise some more adjournments
were granted by fixing the case for arguments and on 15-5-2004, an ex parte decree was
passed against the defendants but same was restored and case was fixed to attend the
Court on 20-8-2004, vide Order sheet dated 8-7-2004.
On 20-8-2004, the case was adjourned, without fixing the same for arguments or re-
arguments, to 29-09-2004, on the appointed date, the plaintiff requested that the matter is
being patched up by one of their relatives, as such sought adjournment and Case was
adjourned for 25-11-2004. on the appointed date, the case was adjourned to 9-3-2004 for
further proceedings as the defendants were not in attendance on the appointed date, the
defendants again remained absent and case was adjourned for further proceedings, and
following date was fixed on 15-4-2004 and on the appointed date, the impugned ex parte
decree in favour of the plaintiff is passed as the defendants remained absent.
All the above history shows that, how carelessly the suit has been dealt by the trial Court,
1st, when the suit became matured, the case was fixed for arguments, then it was sent to
arbitration and again it was fixed for arguments and written arguments were called from
the parties and after submission of the written arguments by the parties, the case was
Page No. 2 of 3
fixed for final order and again, the Court took a turn without assigning any reason to fix
the case for re-arguments, but passed an ex parte decree and same was set aside and again
the case was fixed for further proceedings and the impugned decree was passed, as such
the date on which the impugned ex parte decree is passed can not be said to be "date of
hearing" although if the case was simply fixed for arguments it would be date of hearing.
The above circumstance of the case transpire that, the Court carelessly and without
applying conscious mind has taken the case, while once the case was fixed for orders
after getting the written arguments, the proper course was to give its judgment on merits
and even when the case was fixed for re-arguments and the parties made lame excuses
then the proper course was to give judgment on merits. Lastly when the defendants
remained absent from the Court, than too, the proper course for the Court was to deliver
its judgment on merits, hence the learned trial Court has erred in law patently, in this
respect we followed the case law titled "Mst. Shamshad Begum alias Sharam Khatoon v.
District and Sessions Judge Dadu through Presiding Officer and 4 others 1998 CLC 1128.
Keeping in view the above circumstance of the case, it can be said that, the learned trial
Court has failed to exercise the jurisdiction vested with and patently erred in law by
passing ex parte decree without going into merits of the case and the date on which the
impugned ex parte decree has been passed can not be said to be date of hearing for
passing ex parte decree without going into merits of the case, hence restoration
application is within the time by applying Article 181 Limitation Act, which provides 3
years.
The upshot of the above discussion is that, the ex parte decree dated 15-04-2005 is set
aside and the case is remitted back to trial Court to deliver his Judgment on merits
without any inordinate delay, however the petitioner is penalized to pay Rs.10,000 cost
for his non serious attended before the trial Court.
A.R.K./56/Glt Case remanded.
Page No. 3 of 3
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.
----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.
Page No. 1 of 3
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
Page No. 2 of 3
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.
Page No. 3 of 3
2006 Y L R 1466
[Lahore]
Before Mian Saqib Nisar, J
ASHFAQ-UR-REHMAN and another---Petitioners
Versus
WALI MUHAMMAD and 10 others---Respondents
Civil Revision No.2390 of 2005, heard on. 22nd February, 2006.
----O. XVII, R.3---Two connected suits subsequently separated---Dismissal of one suit

for non production of evidence---Contention of plaintiffs was that they misunderstood the
date of hearing, as both cases were earlier tried together, therefore, they validly thought
that their case was also fixed for the date as in the other matter---Validity---In case of two
connected suits proceeding almost together, the possibility of noting down the wrong date
could not be ruled out, High Court, therefore, allowed petition, in the interest of justice,
which required that the rights of parties should not be thwarted on the technicality, rather
those be decided on merits.
Malik Amjad Pervaiz for Petitioners.
Kh. Khalid Butt for Respondents.
Date of hearing: 22nd February, 2006.
Page No. 1 of 2
JUDGMENT
MIAN SAQIB NISAR, J.---The petitioners brought a suit for the specific performance
against the respondents seeking the enforcement of the agreement to sell dated 1-9-1997,
pertaining to the area measuring 5 Kanals, 5 Marlas and 1-1/2 Sarsais (described in
paragraph No.1 of the plaint); another suit was filed by them regarding another parcel of
the land, but against the same respondents; both the suits were pending in the one Court
and same dates of hearing were fixed but on 24-11-2004, through the administrative order
of the learned District Judge, both the cases were withdrawn from the Court of Mr.
Mubassar Nadeem, Civil Judge and were entrusted to the Court of Rana Muhammad
Azam; the learned transferee Court fixed the cases for 21-12-2004 for the evidence of the
petitioners but on the said date, bifurcated the dates by fixing the present case for 26-1-
2005 and the other for 27-1-2005; since then both the case were tried separately and
ultimately on the requisite day i.e. 23-2-2005, when the petitioners failed to appear before
the Court; their evidence has been closed by the learned trial Court, by applying the
provisions of Order XVII, rule 3, C.P.C. and the suit has been dismissed. It may also be
relevant to mention here that the other suit is still pending before the learned trial Court.
2. It is the case of the petitioners that they misunderstood the date of hearing, as both the
suits were earlier tried together, therefore, they validly thought that this case is also fixed
for the date in the other matter. Without prejudice to the above, it is also submitted that
even otherwise, the suit should not have been dismissed by applying the provisions of
Order XVII, rule 3, C.P.C., as none appeared on behalf of the petitioners, on that date,
rather it should have been dealt with under Order XVII, rule 2, C.P.C. It is also stated that
on the said date, even respondents' side was not represented and thus, it cannot be ruled
out that the respondents had also noted down wrong date of hearing. Aggrieved of the
dismissal of their suit, the petitioners preferred an appeal, but without any success.
3. Learned counsel for the petitioners has reiterated the argument. I have scanned the
record and find that in view of the two connected cases proceeding almost together, the
possibility of noting down the wrong date cannot be ruled out, thus, in the interest of
justice, which requires that the rights of the parties should not be thwarted on the
technicality, rather those be decided on merits. Resultantly, by allowing this petition, I set
aside the judgments and decrees of the Courts below and direct the learned trial Court to
fix this case along with the other, on the same date for hearing and to decide the same by
trying the two mattes simultaneously. But I do find that the petitioners have been
negligent to an extent by allegedly noting an incorrect date of hearing; had they examined
the file and procured the order sheet, as should be done, they would have found that this
case was not fixed along with the other matter; besides the above, as the petitioners had
obtained certain opportunities to produce their evidence, but have failed, therefore, may
be they wanted to avoid the situation of closure of their evidence, choosing a lesser
rigorous order of dismissal of the suit for non-prosecution, with the hope to get it revived
by showing the wrong noting of the date, thus, in order to compensate the respondents'
side, the petitioners are directed to pay Rs.5,000 as costs, which shall be paid by the
petitioners to the respondents on he next date of hearing.
F.B./A-48/L Petition allowed.
Page No. 2 of 2
2005 C L D 653
[Lahore]
Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ
MANZOOR AHMAD and another---Appellants
versus
AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Manager

Nankana Sahib Branch and 3 others---Respondents
R.F.A. No.488 of 2001, heard on 25th January, 2005.
(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---
----S. 9---Procedure of Banking Court---Scope---Borrower or a customer or Banking

Company may institute a suit in the Banking Court by presenting a plaint and thereupon
the defendants be served through bailiff, by registered acknowledgment due notice, by
courier and by publication in the newspapers---If the defendant, after the service of
summons, does not obtain leave from the Banking Court, he shall not be entitled to
defend the suit and in default of doing so the allegations of fact in the plaint shall be
deemed to be admitted and Banking Court may pass a decree in favour of the plaintiff.
(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---
----S. 9---Procedure of Banking Court---Defendant-bank had failed to file any

application, seeking leave to defend the suit and Banking Court, instead of proceeding
against the Bank, for not filing the leave application penalized the plaintiffs by rejecting
their plaint---Validity---Held, Banking Court did not adopt the procedure, as prescribed in
the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997
and had in fact, gone outside the scope of S. 9(4) of the said Act---Approach of the
Banking Court was perfunctory and casual as S. 9(4) of the Act provided that defendant
shall not be entitled to defend the suit, unless he obtained leave from the Court---Banking
Court, in the present case, instead of giving premium to the plaintiffs for the neglect of
the Bank, for not filing leave application, rejected the plaint in complete oblivion of the
facts of the case and law on the subject---Banking Court therefore, had completely by-
passed the procedure, as provided under S. 9 of the Act and had evolved its own
procedure---Banking Court, which was creation of a Statute; was bound by the provisions
of that Statute---Impugned judgment of the Banking Court was set aside by the High
Court in appeal being contrary to the provision of the Act.
Messrs Waheed Corporation through Proprietor and another v. Allied Bank of

Pakistan through Manager 2003 CLD 245 and Sheikh Muhammad Kashif v. Askari
Leasing Limited through Manager/Chief Executive of Branch/ Recovery Officer 2004
CLD 1645 ref.
(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---
----S. 9---Civil Procedure Code (V of 1908), O. VII, R.11---Procedure of Banking

Court---Record, in the present case, revealed that the suit was not fixed for “hearing” as
Page No. 1 of 4
contemplated under the law and only the matter regarding the deposit of certain money
and the production of receipts thereto was fixed before the Court---Plaint of the plaintiff,
in circumstances, could not have been rejected by the Banking Court on the date so
fixed---Judgment of the Banking Court was set aside by the High Court in appeal.
(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---
----S. 9---Civil Procedure Code (V of 1908), O. VII, R. 11---Procedure of Banking

Court---Rejection of plaint---Scope---Banking Court was not completely divested of
exercising the powers under O.VII, R. 11, C.P.C.---Such powers could not be exercised
before deciding the application for leave to defend the suit.
Messrs Waheed Corporation through Proprietor and another v. Allied Bank of

Pakistan through Manager 2003 CLD 245 and Sheikh Muhammad Kashif v. Askari
Leasing Limited through Manager/Chief Executive of Branch/ Recovery Officer 2004
CLD 1645 ref.
Muzammal Akhtar Shabbir for Appellants.
Date of hearing: 25th January, 2005.
JUDGMENT
MIAN HAMID FAROOQ, J.---Appellants/plaintiffs, through the filing of the

present first appeal, under section 21 of the Banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act, 1997, has called in question judgment dated 28-5-
2001, whereby the learned Banking Court rejected the plaint in the appellant's suit for
declaration and permanent injunction.
2. Facts leading to the filing of the present appeal are that the appellants filed the
suit for declaration and permanent injunction, against the respondents, before the learned
Banking Court, at Lahore. Upon presentation of the plaint, the learned Banking Court
issued pre-admission notices to the respondents by registered post acknowledgement due
and by telegram. Pursuant to the notices issued to the respondents, the respondent-Bank,
on 10-5-2001, entered appearance through its learned counsel, but failed to file
application seeking leave to defend the suit. Subsequently, the learned Banking Court
proceeded to reject the plaint in appellant's suit, in purported exercise of powers under
Order VII, rule 11, C.P.C., on the ground that the plaint does not disclose any cause of
action, vide impugned judgment dated 28-5-2001, hence the present appeal.
3. Learned counsel for the appellants has contended that the respondents did not file
any application seeking leave to defend the suit but the learned Banking Court, instead of
decreeing the suit, has erroneously rejected the plaint. He has further submitted that the
impugned judgment is liable to set aside in view of the judgments reported as Messrs
Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through
Manager 2003 CLD 245 and Sheikh Muhammad Kashif v. Askari Leasing Limited
through Manager/Chief Executive of Branch/ Recovery Officer 2004 CLD 1645.
4. Notices were sent to the respondents for today and the presumption is that the
same have been served upon the respondents. Despite that none has entered appearance to
defend this appeal, hence they are proceeded ex parte.
5. In view of the arguments of the learned counsel, we have examined the

summoned record and find that on 20-4-2001, when the plaint was presented to the
Banking Court, it issued pre-admission notices to the respondents for 10-5-2001, through
registered post and by telegram and the respondents were directed to file the latest
statement of accounts. On 10-5-2001, the respondent- Bank, instead of filing the
Page No. 2 of 4
application seeking leave to defend the suit, as required under section 10 of Act XV of
97, appeared before the learned Banking Court through its learned counsel and showed its
inclination to contest the suit. On the subsequent date, the appellants were directed to
deposit a sum of Rs.20,000 and to produce the receipt whereof before the Court and on
the succeeding date the plaint was rejected. It appears appropriate to reproduce the
different orders passed by the learned Banking Court, which read as follows:--
6. Section 9 of Act XV of 1997 inter alia envisages that a barrower or a customer or

Banking Company may institute a suit in the Banking Court by presenting a plaint and
thereupon the defendants be served through Bailiff, by registered acknowledgement due,
by courier and by publication in the newspapers. Section 9(4) of the said Act provides
that if a defendant, after the service of summons, does not obtain leave from the Banking
Court, he shall not be entitled to defend the suit and in default of doing so the allegations
of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a
decree in favour of the plaintiff.
7. Placing the afore-narrated facts in juxtaposition with the provisions of section 9 of

Act XV of 97, it is evident that the learned Banking Court did not adopt the procedure, as
prescribed in the said statute and has, in fact, gone outside the scope of section 9(4) of
Act XV of 97. Admittedly, the respondent-Bank did not file any application, seeking
leave to defend the suit and the learned Banking Court, instead of proceeding against the
respondent-Bank, for not filing the leave application, has penalized the appellants by
rejecting their plaint. We are of the view that the approach of the learned Banking Court
in rejecting the plaint is perfunctory and casual. As noted above, section 9(4) specifically
provides that a defendant shall not be entitled to defend the suit, unless he obtains leave
from the Banking Court. In the instant case, the learned Banking Court, instead of giving
premium to the appellants for the neglect of the bank, for not filing leave application,
rejected the plaint in complete oblivion of the facts of the case and law on the subject.
The learned Banking Court has completely bypassed the procedure of Banking Courts, as
provided under section 9 of Act XV of 97 and has evolved its own procedure. It is
pertinent to mention here that the Banking Courts, which are the creature of the statute,
are bound by the provisions and procedure provided under that statute. The learned
Banking Court on the one hand proceeded in violation of the procedure provided under
section 9 of the Act XV of 97 and on the other hand rejected the plaint.
8. There is another aspect of the case. It appears from the record that on 28-5-2001,
the suit was not fixed for hearing, as contemplated under the law and the matter regarding
the deposit of Rs.20,000 and the production of receipts thereto was fixed before the
Court. As the suit was not fixed for “hearing” on 28-5-2001, therefore, the plaint could
not have been rejected, as erroneously done in the present case. On this count too, the
impugned judgment cannot be sustained.
9. From the above, it may not be construed that a learned Banking Court is
completely divested from exercising the powers under Order VII, rule 11, C.P.C.,
however, the same cannot be exercised before deciding the application for leave to defend
the suit. It has been held in the cases of Messrs Waheed Corporation through proprietor
and another and Sheikh Muhammad Kashif (ibid) relied upon the learned counsel that:--
“ Undoubtedly after the grant of leave to defend and treating the leave application
as written statement, the respondents are within their right to have filed an application
under Order VII, rule 11, C.P.C. and if the Court reaches the conclusion that the case falls
under any of the clauses of Order VII, rule 11, C.P.C., of course, plaint could have been
rejected, but in no way before the grant of leave to defend the suit. ”
10. In the above perspective, we have examined the impugned judgment and find that
the same is contrary to the provision of Act XV of 97, thus, we are inclined to interfere in
the impugned judgment and set the same aside.
11. Upshot of the above discussion is that the present appeal is allowed and the
impugned judgment dated 28-5-2001 is set aside. Result would be that the suit, filed by
the appellants titled “Manzoor Hussain etc. v. Agriculture Development Bank of Pakistan,
etc.” shall be deemed to be pending before the learned Banking Court, which shall decide
the same after hearing the parties and of course in accordance with law.
Page No. 3 of 4
M.B.A./M-860/L Appeal allowed.
Page No. 4 of 4
2006 C L C 1574
[Karachi]
B efore Gulzar Ahmed, J
IBRAHIM FIBRES LIMITED through General Manager----Plaintiff
Versus
COLLECTOR OF CUSTOMS (APPRAISEMENT), KARACHI and another----

Defendants
Suit No.880 of 2001, decided on 21st June, 2006.
Specific Relief Act (I of 1877)---
----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & 4-A---Suit
for declaration, permanent and mandatory injunction---Interim stay orders, extension
of---Interim stay was granted to plaintiff on his furnishing Bank guarantee till next date---
Said interim orders continued uptill the date when the matter was adjourned---By consent
the matter was fixed for hearing of final arguments and plaintiff had filed application for
extension of stay orders---Interim orders were extended till date of hearing---High Court
observed that if suit was not proceeded on fixed date for any reason attributable to
plaintiff or his counsel, interim order passed in the case would stand automatically
vacated.
Raja Tilat Mehmood v. Ismat Ahteshamul Haq 1999 SCMR 2215 ref.
Farogh Nasim holding brief for Khawaja Shamsul Islam for Plaintiff.
Raja M. Iqbal for Custom Department.
Page No. 1 of 3
Asghar Farooqui, Standing Counsel.
ORDER
GULZAR AHMED, J.---By this application, plaintiff has sought extension of interim
orders dated 30-6-2001 and 7-1-2002 which have continued until 16-1-2006 but were not
extended. Similar was the position on 1-2-2006. It appears that vide order dated 30-6-
2001 interim stay was granted to the plaintiff on furnishing bank guarantee for the sum
demanded by the Customs Authorities till next date. On 7-1-2002 there was an order of
adjourning the matter to 17-1-2002, till then the defendant shall not encash bank
guarantee. Admitted position is that these interim orders have continued up till 16-1.2006
on which date the matter was adjourned as the counsel for the plaintiff was reported to be
busy before another Bench. On 1-2-2006 again the interim orders were not extended and
the matter was adjourned on the ground that defendant counsel is not well. The plaintiff
filed an application under Order XXXIX, rules 1 and 2 being C.M.A. 4589 of 2006 in
which the plaintiff has prayed for direction to the defendant for de-blocking of bill of
entries noted therein. After hearing the counsel for the parties on 15-6-2006 an order was
passed whereby issues were framed and as the parties counsel have agreed that no oral
evidence is required to be recorded, by consent the matter was fixed on 11-7-2006 for
hearing of final arguments. Subsequently, the plaintiff has filed this application.
Learned counsel appearing for the parties have extensively argued the matter and have
cited judgments in support of their contentions. The plaintiff counsel, has stated that it
was through bona fide error that the request for extension of interim order was not made
on the said two dates. On the other hand the counsel appearing for the defendants have
opposed the application contending that the extension of the interim order cannot be
made for the reason that the interim order is only effected for a period of six months in
terms of Rule 4-A of Order XXXIX, C.P.C. and that similar principle will apply as are
provided in sub-Article 4-A of Article 199 of the Constitution. The learned Standing
Counsel has also argued that the reason for non-extension of the interim order has argued
before the Court is even not mentioned in the affidavit filed in support of this application.
After considering, the arguments of the learned counsel. I do not feel inclined at this stage
to go into the niceties of their respective contentions of the learned counsel for the reason,
as noted above the matter is already fixed for final arguments on 11-7-2006 and following
the principle as laid down in the case of Raja Tilat Mehmood v. Ismat Ahteshamul Haq
1999 SCMR 2215, the interim orders are extended till 11-7-2006. It may be noted that if
the suit is not proceeded on this date for any reason attributable to the plaintiff or his
counsel, the interim order passed in this case will stand automatically vacated. At this
stage Mr. Raja M. Iqbal, learned counsel for the Customs Department has pointed out that
the Customs Department has recovered an amount of Rs.78.73 million towards its dues
and he has no objection if the bank guarantee furnished by the plaintiff to the extent of
this amount is allowed to be discharged. Accordingly it is ordered that to the extent of
Rs.78.83 million which have been recovered by the Customs Authorities, the bank
guarantee will stand discharged. The application in the above terms stand disposed of.
H.B.T.I-15/K Order accordingly.
Page No. 2 of 3
Page No. 3 of 3
1999 C L C 1070
[Lahore]
Before Raja Muhammad Khurshid, J
PROVINCE OF PUNJAB through
Collector, Gujrat and another---Petitioners
versus
Ch. MUHAMMAD RIAZ---Respondent
Civil Revision No.708 of 1989, heard on 26th November, 1998.
(a) Civil Procedure Code (V of 1908)---
----0. XVII, R.5---Appearance of parties on the day when Presiding Officer was
absent---Non-issuance of slips of paper by the ministerial officer---Effect---Legal
prejudice will be caused to the parties---Where the parties or any one of them had chosen
to remain absent, then no such prejudice would be caused if the matter was fixed to an
adjourned date for the purpose specified in the order of adjournment.
(b) Civil Procedure Code (V of 1908)---
----0. IX, R.13---Setting aside of ex parte decree---Officer who persued the case was
transferred and no other person was deputed to follow the case---Mere fact that one of the
officers was transferred and no other was deputed to pursue the case would not be a legal
ground nor it would constitute a sufficient cause for setting aside the ex parte decree.
(c) Civil Procedure Code (V of 1908)---
Page No. 1 of 6
----0. IX, R.13 & S.115---Ex parte decree was granted against petitioner by Trial Court
and application for setting aside the same was filed by petitioner after period of
limitation---Trial Court dismissed application being without sufficient cause and appeal
filed against that order was also dismissed--Validity---Where petitioner absented himself
from Court on the adjourned date without showing sufficient cause, order passed by Trial
Court could, in no way, be considered as illegal or nullity in the eyes of law so as to
enlarge the limitation, which could be otherwise available---Both the Courts below had
agreed on the question of fact that damage suffered by respondent due to nonfeasance of
petitioner came to specified amount---Interference by High Court in revision was not
called for in circumstances.
Muhammad Qasim and others v. Moujuddin and others 1985 SCMR 218; Nowsheri Khan
v. Said Ahmad Shah 1983 SCMR 1092; Jamila Begum and others v. Abdullah Jan and
others PLD 1997 Pesh. 55; Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 and
Ghulam Muhammad and others v. Muhammad Siddique and others 1984 SCMR 1190
ref.
Muhammad Iqbal for Petitioners.
Haji Abdul Waheed Butt for Respondent
Date of hearing: 26th November, 1998
JUDGMENT
This revision petition is filed to impeach the ex pane judgment, dated 2-6-1986 passed by
the then Senior Civil Judge, Gujrat. The appeal against that judgment was also dismissed
by the then learned Additional District Judge. Gujrat vide his judgment, dated 9-7-1988.
2. The brief facts are that the respondent/plaintiff on 19-5-1981 filed a suit for the
recovery of Rs.40,000 as damages against the appellant. It was contended in the suit that
the complainant was running a brick kiln at the distance of about one furlong from
Rajbah 1-R/14-R maintained by the Irrigation Department. However, there was a breach
in the aforesaid Rajbah (Water Channel), which inundated the brick kiln of the
respondent/plaintiff on 14-5-1981 thereby damaging his property consisting of Coal,
Phak, Burada and about one lac bricks. The damage to the aforesaid property was
assessed at Rs.40,000. 3. The appellant/defendant filed written statement on 29-3-1982
and took
up the plea that the water channel was 59,800 feet in length and its banks were properly
maintained. The breach had allegedly taken place on account of water theft committed by
the agriculturists and as such the petitioner/defendant was allegedly not responsible for
any damage to the property of respondent/plaintiff. The issues in the suit were struck on
22-6-1986 and the matter was fixed for evidence of the parties. The respondent/plaintiff
concluded his evidence on 21-11-1983. The case was fixed for the evidence of the
petitioner/defendant for 10-3-1984. On that date the petitioner/defendant could not
Page No. 2 of 6
produce his evidence and the matter was adjourned on his request to 4-9-1984 on the
payment of conditional costs. The matter could not be attended to as the Presiding Officer
was on leave on two dates of hearing. Ultimately the date for hearing was fixed as
12-2-1985 but nobody appeared for the petitioner/defendant on the aforesaid date
whereupon the matter was adjourned to 27-2-1985, 12-5-1985, 30-9-1985, 12-11-1985,
18-12-1985 and thereafter, the impugned judgment was made on 2-6-1986 granting ex
parte decree in favour of the respondent/plaintiff.
4. The petitioner/defendant moved an application for setting aside the ex parte decree on
1-10-1986 which was rejected vide order, dated 28-4-1997 passed by the learned Senior
Civil Judge, Gujrat. Aggrieved from the aforesaid rejection of the petition, the
petitioner/defendant filed an appeal, which was also dismissed by the learned Additional
District Judge, Gujrat vide his order, dated 9-7-1988 as pointed out above.
5. The learned counsel for the petitioner has submitted that the learned trial -Court
dismissed the petition for setting aside the ex parte decree without examining the
evidence in the case. In this respect, it was contended that no issue was framed to say
whether there was any sufficient cause for setting aside the ex parte decree. In failure to
do so, the petitioner/defendant was highly prejudiced as he had no occasion to contest the
suit in the Court below.
6. Secondly it was alleged that the impugned order whereby the petition for setting aside
the ex parte decree was dismissed, was void ab initio, as the case was adjourned on
3-12-1984 to 12-2-1985 by the Reader of the Court in the absence of the learned
Presiding Officer. It was, therefore, alleged that the adjourned date for evidence of the
petitioner/defendant was not a date of hearing as it was in violation of Order XVII, Rule
5, C.P.C., and since the order in question was allegedly void ab initio, therefore, any
super structure of the orders based thereon was also illegal and not sustainable in the eyes
of law, nor the question of limitation would arise even if the appeal was made before the
learned lower appellate Court after the prescribed limitation period of 30 days. In this
connection, it was alleged that if the order was nullity, the appropriate remedy was under
Article 181 and not Article 168 of the Limitation Act, 1908 and the period of limitation
under the former Article was three years and not 30 days for filing a petition for setting
aside order of dismissal or ex parte. Reliance was placed on Muhammad Qasim and
others v. Moujuddin and others reported as 1985 SCMR 218, Nowsheri Khan v. Said
Ahmad Shah reported as 1983 SCMR 1092 and Jamila Begum and others v. Abdullah Jan
and others reported as PLD 1997 Pesh. 55. It was contended by the learned counsel for
the petitioner that learned lower appellate Court was wrong to hold that the appeal was
time-barred. It was urged that the revision petition be accepted and the case be remanded
to the learned lower appellate Court for decision on merits.
7. The learned counsel for the respondent has submitted that this revision petition was
filed in 1989 and was pending since then although the initial suit was filed somewhere in
May, 1981. It was, therefore, alleged that there was no point to remand the case to the
learned lower appellate Court as the same was hanging fire for more than two decades.
Even otherwise on the legal premises, the authorities cited by the learned counsel for the
petitioner were not allegedly applicable to the present case because those deal with the
appellate jurisdiction and not with the jurisdiction of the trial Court, which is distinctly
defined in Order XVII, Rule 5, C.P.C. as to what order had to be passed by the Reader of
the Court when the trial Judge was absent. It was alleged that there was no para materia
provision in C.P.C. for dealing with the appeals in such like situation. Secondly it was
contended that in the reported cases, all the appeals were dismissed for non-prosecution,
but in the instant case, the appeal was held time-barred because initial order was made by
the leaned trial Court on 2-6-1986, but the petition for setting aside ex pane judgment was
moved by the petitioner/defendant in the Court on 1-10-1986. The ex parte judgment in
Page No. 3 of 6
the case was originally delivered by the learned trial Court on 2-6-1986 against which
appeal was filed on 13-5-1987 i.e. beyond the period of limitation. It was, therefore,
contended that in the Court below order was rightly passed, and in the instant case no
sufficient reason was alleged, therefore, the learned trial Court was not bound even to
frame the issue in that respect. Reliance was placed on Zulfiqar Ali v. Lal Din and
another reported as 1974 SCMR 162, wherein it was held that the party as well as the
counsel were bound to see that the matter is properly and diligently prosecuted. Again the
order dismissing the application for setting aside the ex parte decree for want of sufficient
cause was allegedly not revisable under section 115, C.P.C. Reliance was placed on
Ghulam Muhammad and others v. Muhammad Siddique and others reported as 1984
SCMR 1190.
8. 1 have considered the foregoing submissions and find that the present case was
instituted in the Court below on 19=5-1981. It was fixed for 23-6-1981 and on that date,
the petitioner/defendant was got served, but nobody turned up, whereupon the ex parte
order was made against them, and the matter was adjourned for ex parte evidence on
17-9-1981. However, later on the ex parte order was set aside on showing of sufficient
cause for non-appearance on the part of petitioner/defendant and the matter proceeded
onward. The petitioner/ defendant submitted written statement in which they took up the
plea that they had been performing their duties in maintaining water channel in the proper
manner and as such the breach had nothing to do with their functionaries as the same was
caused by the people while committing theft of the water. The learned trial Court
appointed a commission the report of which is on record showing that the
respondent/plaintiff had suffered total loss of about Rs.38,500. The commission
examined six witnesses namely Ch. Sardar Khan, Muhammad Inayat, Ali Muhammad,
Munshi Muhammad Anar, Sami Muhammad and Ch. Muhammad
Riaz/respondent-plaintiff. The P.W. namely Ch. Sardar Khan also assessed the loss up to
Rs.40,000. The other witnesses also stated that due to breach of water, the plaintiff had
suffered damage to his property in the approximation of Rs.40,000. The evidence brought
on record by the plaintiff consisted of P.W.1 Syed Ijaz, P.W.2 Ch. Sardar Khan and the
complainant himself as P.W.3. All these witnesses were cross-examined and according to
them, the damage caused to the property of the plaintiff was about Rs.40,000. The report
of the commission was brought on record as Exh.P-2.
9. After the evidence of the plaintiff/respondent, the matter was fixed for evidence of
petitioner/defendant for 3-12-1984. The file was wrongly pout up in the Court on
3-10-1984 perhaps because the date of hearing appeared to be written as 3-10-1984. The
presiding Officer, however, directed that since the date of hearing was 3-12-1984,
therefore, the file should come on that date. On the aforesaid date, the counsel for the
plaintiff was present, but no body appeared for the defendants. The Reader of the Court,
therefore, adjourned the case to 12-2-1985, for evidence of defendants as the Presiding
Officer was on casual leave. On 12-2-1985 nobody appeared for the defendants,
whereupon the defendants were proceeded against ex parte and the matter proceeded
further, resulting into ex parte decree.
10. It is to be seen, if there is any non-compliance of the provisions contained in Order

XVII, Rule 5, C.P.C. It will be appropriate to reproduce the provisions contained in Rule
5 of Order supra. It runs as follows:-
"When on any day the Presiding Officer of the Court is absent by reason of illness or any
other cause, the parties to the suit or proceeding set down for that day (notwithstanding
the knowledge that the Presiding Officer would be absent) shall appear in the Court in the
Court-house on that day and the ministerial officer of the Court authorised in that behalf
shall hand over to the parties slips of paper specifying the other date fixed for proceeding
with the suit or proceeding and signed by him. "
Page No. 4 of 6
It follows from the perusal of the aforesaid rule that a ministerial, officer of the Court
shall hand over to the parties slips of paper specifying the other date fixed for proceeding
with the suit or proceeding and signed by him.
11. The above rule pre-supposes the presence of the parties in order to be aware about the
next date of hearing and also to get slips of papers specifying A the adjourned date. This
by implication makes it compulsory for the parties to appear on a date, when the
Presiding Officer is absent. The proceedings under this rule would only become invalid,
if the parties had presented themselves and were not given the slips of papers duly signed
by the ministerial officer of the court. In that case, legal prejudice will be caused to the
parties in the absence of issuance of such slips by the ministerial officer. - However, if the
parties or any one of them had chosen to remain absent, then no such prejudice would be
caused if the matter is fixed to an adjourned date for the purpose specified in the
adjourning order. In such a situation, on the date so fixed, the Court may conduct the
same proceedings as scheduled on the date on which the parties were absent. In the
instant case, the petitioners/defendants were well-aware that evidence of the
respondent/plaintiff has already been examined and that the case has been fixed for their
evidence, but they had chosen to be absent on 3-12-1984 and also did not bother to
appear in the Court on any subsequent date till the ex parte decree was passed on
2-6-1986. However, they moved a petition for setting aside the ex parte decree on
2-10-1986. This petition was clearly barred by time nor any reasonable cause was shown
therein for setting aside the ex parte decree. In this connection, it was contended that the
case in the Court below was pending adjudication but the officer, who was conducting the
case was transferred to Sargodha and he left for his new place of posting after delivering
the charge at Gujrat. Hence nobody was deputed to conduct the case, which resulted into
ex parte decree about which they came to know when a warrant for execution of the same
was sent through a bailiff of Court on 30-9-1986. The contents of this application clearly
show that the petitioners/ defendants were highly negligent because nobody was
appointed to pursue the case after the transfer of the officer Incharge conducting the case.
This conduct can hardly be appreciated on the part of any litigant much less of the
Government, which had a vast machinery to pursue its matters as compared to a private
citizen. The mere fact that one of the officer was transferred and no other was deputed to
pursue the case would be no legal ground nor it would constitute a sufficient cause for
setting aside the ex parte decree, particularly when the B petitioners/defendants knew
very well that the case has been pending in the Court and the evidence of the
respondent/plaintiff had also been recorded and their case was at the evidence stage. This
type of negligence is not only palpable but highly detestable. The learned trial Judge was,
therefore, right in law that there was no sufficient cause to set aside the ex parte decree.
The lower appellate Court also rightly held that apart from a remedy for a petitioner
under Order IX, Rule 13, C.P.C., the petitioners/defendants had an alternate remedy in
appeal to challenge the ex parte decree, but they opted not to file any appeal till the
limitation time had hopelessly expired. Since the petitioners/defendants absented from
the Court below on the adjourned date without showing sufficient cause, therefore, the
impugned order passed by the learned trial Judge could in no way be considered as
illegal, or a nullity in the eyes of law so as to enlarge the limitation, which could be
otherwise available. Even the petitioners did not make any application for enlarging time
of limitation. In that situation, the impugned order passed by the Court below , as well as
by the learned lower appellate Court would not call for interference in the revisional
jurisdiction particularly when apart from the limitation, the learned lower appellate Court
had made an observation that the trial Court had taken into consideration, the evidence
brought on record while passing the impugned ex parte decree. I have myself gone
through the evidence brought on record in the trial Court, which I have already all used
to. The respondent/plaintiff had examined three witnesses, who were cross-examined and
according to them the loss suffered by the plaintiff was in the tune of about Rs.40,000.
The same was also in line with the report submitted by the Local Commissioner after
examining six witnesses at the spot. In such a situation, on merits even, the impugned
decree was good in the eyes of law. It will be an exercise in futility to take a narrow view
of the matter by passing a remand order on technical premises as proposed by the learned
counsel for the petitioners/defendants, that since the appal was time-barred, therefore, it
Page No. 5 of 6
may be sent back for decision afresh. I have already pointed out that since the basic order
passed by the learned trial Judge in granting ex parte decree was not nullity in the eyes of
law, therefore, the question of limitation was rightly determined by the learned lower
appellate Court and did not call for interference particularly when both the Courts below
have agreed on the question of fact that the damage suffered by the respondent/plaintiff
due to the D nonfeasance of the petitioners/defendants came to Rs.40,000.
12. The revision petition being meritless is dismissed, with costslD throughout.
Q.M.H./M.A.K./P-61/L Revision dismissed
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2 0 11 S C M R 2 9 9

[Supreme Court of Pakistan]

Mrs. ASMA HASSAN---Petitioner

Mrs. KAUSAR H. HAMID and others---Respondents

Civil Petition No. 353-K of 2010, decided on 24th June, 2010.

(On appeal from the order/judgment dated 19-5-2010/25-5-2010 passed by High

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 16(1)(2)---Constitution of Pakistan, Arts. 185(3) & 199---Tentative rent order,

Nemo for Respondents.

Date of hearing: 24th June, 2010.

S.A.K./A-102/SC Petition dismissed.

[Supreme Court of Pakistan]

Pres en t: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

SHER GHULAM and others---Respondents

Civil Petition No.228-P of 2006, decided on 2nd March, 2010.

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

----O. XVII, R. 3---Non-production of further evidence by plaintiff on date fixed due to

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

Waseem-ud-Din Kattak, Advocate Supreme Court for Petitioner.

Date of hearing: 2nd March, 2010.

KHILJI ARIF HUSSAIN, J.---Aggrieved by the dismissal of his revision by the

2. The petitioner/plaintiff instituted a declaratory suit on 3-12-1995 in the Court of Senior

4. Mr. Waseem-ud-Din Khattak, .ASC in support of the petition, vehemently contended

S.A.K./T-1/SC Leave refused.

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Jawwad S.

Dr. AGHA IJAZ ALI PATHAN---Petitioner

Criminal Revision Petitions Nos. 9 of 2008 in Criminal Miscellaneous Application

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Petition had already been

Date of hearing: 15th October, 2009.

GHULAM RABBANI, J.---The petitioner is a qualified doctor. He appeared in

"In the afore-referred circumstances the sentence of imprisonment for four

Abdul Hameed Dogar, C.J.

"While dictating judgment in the instant case answer to certain questions,

Ch, Ejaz Yousaf; J

Abdul Hameed Dogar, C.J

"Convicts' appeals .---Arguments concluded. For reasons to be recorded

[Northern Areas Chief Court Gilgit]

B efore Muzaffar Ali, J

JAN MUHAMMAD and 3 others----Respondents

Civil Revision No.24 of 2008, decided on 20th August, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, R.6(1)(a)---Ex parte proceedings against defendant---Provisions of O.IX

Javed Iqbal for Appellant.

Manzoor Ahmed for Respondents.

Date of hearing: 20th August, 2009.

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

ABDUL REHMAN LONE---Appellant

ABDUL WAHAB LONE and another---Respondents

C.F.A. No.13 of 2006, decided on 28th April, 2010.

Civil Procedure Code (V of 1908)---

Abdul Hameed for Appellant.

Johar Ali for Respondents.

A.R.K./56/Glt Case remanded.

Before Muhammad Alam Khan, J

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

Civil Procedure Code (V of 1908)---

Saleem Ullah Khan Ranazai for Respondent.

Date of hearing: 26th May, 2008.

MUHAMAD ALAM KHAN, J.---Impugned herein is the order of learned Additional

3. On presentation of the plaint, the defendant-appellant Muhammad Idrees appeared