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Civil Revision No. 249 of 1982, decided on 18th September, 1985.
‑‑ O.III, r. 2 & O. XXVIL r. 2‑‑Case against Government Appearance on behalf of Government‑Requirement‑Order III, Civil Procedure Code, held, was not applicable to case in which Govern ment was a party, but O. XXVII, C. P. C., would be applicable‑Authorized agents pursuing case of Government, failing to produce document of authority to pursue case‑Such agent held was to have been advised by Court to obtain written authority from department instead of rejecting application for setting aside ex parte decree.
‑ O. 111, rr. 1 & 2‑Authorised agents‑Authority to conduct case‑Requirement‑Power‑of‑attorney placed on record by agent of party in civil matter being undated, held, should not be discarded by Court, unless, same proved to be a fake document.
‑ O. XXVII, r. 2‑Appeal (Civil)‑‑Case against Government‑Department filing power‑of‑attorney before First Appellate Court First Appellate Court passing order failing to notice such power‑of attorney on file and rejecting fresh power‑of‑attorney produced by agent of department on ground of its being undated‑Order of first appellate Court dismissing appeal on ground of non‑prosecution by department in view of his not noticing already filed power‑of‑attorney and rejecting such other document of authority produced subsequently held, was not warranted by law having been passed mechanically and as a matter of automation.
‑‑ O. IX, r. 6‑Power of Court in matter of passing ex parte decree, was discretionary‑Ex parte decree ‑Requirements,
The language of this provision is plain beyond ambiguity on the point that the power of the Court in a matter of passing ex parte decree without recording evidence is discretionary. But discretion to pass ex parte order must be exercised judicially and in this behalf there is no scope open to the Court to act on caprice while passing ex parte decree. By construing contained in O. IX, r. 6, C. P. C. it becomes clear that the Court may pass ex parse decree without recording evidence, if the defendant has been duly served but he chose to remain absent in disregard of the process of the Court. If it is found so, the Court will be entitled to come to a conclusion that the defendant does not have anything in rebuttal of the claim of the plaintiff. In such situation, it will be within the discretion of the Court to decide whether it should grant decree in favour of the plaintiff after record ing evidence or without recording evidence. But this principle, will not be followed by the Court in suits patently time‑barred or suits patently dishonest or suits filed against minors, crippled or blind or persons or widows whose attendance in Court on the date of hearing cannot be supposed just like normally healthy people. "The words" and pass decree without recording evidence "were inserted by the Law Reforms Ordinance, 1972 and before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and object of the amendments was to empower the Courts to decide a case without recording evidence. This meant that the question was left to the discretion of the Courts and it was not incumbent on Courts to decree a suit without recording evidence. Such an intention could not lightly be attributed to the Legislature, nor would it have any justification.
Shamroz Khan and others v. Mohammad Amin and others P L D 1978 S C 89 ref.
‑‑0. IX, r. 6‑Ex parte decree‑Legal effect stated.
It is incumbent on the Courts before‑passing an ex parte decree to give a decision whether it should decree the claim against the defendant after recording evidence or without recording evidence. Where trial Court has not recorded any such decision as to justify the passing of ex parte decree without recording evidence his impugned ex parte decree cannot be sustained. This is not the only act on the part of the trial Court to warrant striking down of his order by which he passed the impugned ex parte decree. Trial Court also failed to appreciate that the department had participated in the proceedings to contest the claim of the plaintiff. When reference to the record show that after the department was served, it filed written statement and issues were framed upon the pleadings of the parties. It is also clear from the record that the two officials were to attend the proceedings regularly on each date of hearing and their presence was to be marked by the trial Court in the order sheets. In these circumstances, it cannot be said that the Department was not in a position to rebut the claim of the plaintiff therefore, the trial Court should have withheld his hand from passing the ex parte decree in favour of the plaintiff against the department/defendant without asking the defendant to produce evidence in support of his claim.
‑‑ O. IX, r. 6‑Ex parte decree‑Discretion of Court‑Principle illustrated.
The Court is not empowered to pass ex pare decree against the defen dant by way of punishment if he is duly served but does not attend the Court. Ex parse decree is to be granted by the Court against the defendant on the presumption that the defendant had no case to challenge the claim of the plaintiff. Where the defendant after service attended the Court through his official representatives and a counsel, if at all the judge was to proceed ex parse against the department/defendant, he should have, in the exercise of his discretion under rule 9 clause (a) of Order IX of the Civil Procedure s' Code, asked the plaintiff to produce cogent evidence in support of his claim, because the defendant was duly represented by its officials representatives and counsel, and had denied the clam of the plaintiff in their written statement and issues had been framed upon the pleadings of the parties. What rule 6 clause (a) has envisaged is that if it is proved that summons was duly served upon the defendant and despite that he did not turn upto Court may proceed ex pane and pass decree without recording evidence The expression duly served' employed in this provision bears significance t denote that if the defendant was properly informed of the action against him and yet he knowingly did not participate in the proceedings, it will be a proof against him that he does not want to contest the claim of the plaintiff and so ex parte decree is warranted in view of his conduct.
---Principle of‑Failure of defendant to attend Court on particular date‑Previously representatives of defendant appearing on every date and participating, in proceedings‑Equity, held, demanded that trial Court, should have adjourned case on payment of costs to plaintiff.
‑‑ S. 115‑Revision‑Ex parse decree passed by trial Court and con firmed by First Appellate Court, was set aside by High Court in exercise of revisional power on ground of being based on wrong view of law and facts‑Case remanded to trial Court with direction to dispose of same on merit and according to law after hearing parties.
Amirzada Khan, A.‑G. for Petitioners.
Muhammad Firdous Khan for Respondent.
Dates of hearing : 8th and 18th May, 1985.
The respondent herein filed suit for recovery of Rs. 22,000 against the Government of N.‑W. F. P. through Collector, Mardan and Executive Engineer, Highway Division Mardan and for the purpose of this revision application it is sufficient to state that by order, dated 19‑7‑1981, the learned trial Judge passed an ex parse decree in favour of the respondents on the ground that the case was called again and again but nobody turned up on behalf of the defendants. Against this order, the petitioners filed applica tion through two officials, namely, Niamat Gul S.D.A. and Abdul Marian, accounts Clerk of the Highway Division for setting aside the ex parse decree. The learned trial Judge by order, dated 6‑12‑1981 rejected the same on the ground that these two officials are unauthorised persons to prosecute the case on behalf of the department. In support of this order be observed :‑
"The perusal of record shows that the application have moved for setting aside the ex pare decree not by the defendants for the Government pleader. It has been moved by two alleged special attornies of the defendants but the file reveals that no special power of attorney is on record. The movers of the application are not qualified to move the application under Order III, rule 2, C. P. C. or under Order XXVII, rule 2, C. P. C. as no authorisation to conduct the suit has been made in their favour."
The petitioners were aggrieved by the ex parte order passed against them, therefore, they preferred appeal before the District Judge who by order, dated 29‑7‑1982 dismissed the appeal only on the ground that the two officials who filed the application for setting aside the ex parte decree before the learned trial Judge were not authorised agents on behalf of the depart ment. Hence this revision application by the petitioners with a prayer that the impugned orders may be set aside and the trial Court be directed to proceed with the case according to law.
I have heard the learned counsel for the parties and perused the record. It would appear that the learned trial Judge attended to this case on two occasion to pass adverse orders against the petitioners. On the first occasion, he passed ex parte decree in favour of the respondent when nobody turned up on behalf of the petitioners. On the second occasion, the above named two officials filed application on behalf of the petitioners for setting aside the ex parte decree but the learned trial Judge rejected the application on the ground that these two officials are not authorised to pursue the cause on behalf of the petitioners. The learned District Judge while dismissing the appeal of the petitioners agreed with the learned trial Judge that the said two officials were not authorised to defend the petitioners. Now the Courts below, as their impugned orders in this respect would show pressed into service Order III, rule 2 and Order XXVII, rule 2, C. P. C. These provisions may be reproduced :‑
(1)
(2) Recognised agents.‑The recognized agents of parties by whom such appearances, applications and acts may be made or done are‑
(a) persons holding powers‑of‑attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties ;
(b) Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agents is expressly authorised to make and do such appearance, applications and acts."
(1)
(2) Persons authorised to act for Government.‑Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
A look at these provisions will show that Order III, C. P. C. is not applicable to a case in which Government is a party. I am supported in this view by reference to Order XXVII, the provisions of which are clear on the point that in a case of this nature, the Government will be dealt with according to provisions of Order XXVII. The two Courts below were, therefore, wrong to invoke the provisions of Order III in aid of their impug ned orders. Now as the provisions of Order XXVII are applicable to this case, it will have to be seen whether the two Courts below were justified to reject the application filed by the abovenamed two officials for setting aside the ex parte decree by pressing into service rule 2 of the said order. This provision has been reproduced above and by going through the same, what it lays down is about persons who shall be deemed to be the recognize agents of the Government in a‑civil matter. It does not lay down that a official claiming to be the agent of the Government in a civil matter but h is not authorised in the case, the Court shall pass ex parte order against the Government. I am, therefore, at a loss to understand as to how the learned trial Judge rejected the application filed by the abovenamed officials on behalf of the petitioners for setting aside the ex parte decree on the ground that these officials were not authorised and so the learned District Judge was equally wrong ,to uphold the order of the learned trial Judge in appeal. Correct that the said officials were not authorised in writing to pursue the cause of the Government in this case, but in the circumstance of the case when these two officials were found to have not been so authorised, the learned trial Judge should have advised them to obtain a written authority from the Department in this case according to rule 2 of Order XXVII, C. P. C. because there is no mandatory or discretionary provision in Order XXVII, C. P. C. with respect to the passing of ex parte decree against the Government if an official appearing before the Court to civil matter on behalf of the Government is not authorised in writing.
It may be pointed out that according to the order‑sheets of the trial Court in this case, the above officials used to appear before the Court in the case on every date of hearing on behalf of the Government and their present was to be marked in every order‑sheet, but the learned trial Judge had never had the trouble to consult the file if they had been issued any authority in writing by the Department nor had ever he asked them if they were authorised in writing by the Department to pursue the case. Had the learned trial Judge cared to do any such thing, surely the Department would have issued there and then written authority in their favour to pursue its cause before the Court and in that event there would have been no occasion for the learned trial Judge to reject the application on 6‑12‑1981 filed by the for setting aside the ex parte decree on the ground, as‑he observed, that authorisation. to conduct the case has been made in their favour". The learned District Judge was also wrong to reject the appeal of the petitioner despite the fact that written authority was produced before him at the appellate stage. He adopted the same ground which the learned trial Jud had advanced in support of his second order dated 6‑12‑1981, namely, that the two officials who filed the application for setting aside the ex parte decree before the learned trial Judge were not authorised agents of the Department. It may be pointed out that the above two officials produced at the appellate stage before the learned District Judge, written authority executed in their favour by the Department, but the learned District Judge turned it down on the ground that the same is undated. There is no law or case‑law to show that undated authority executed in favour of person by a party in a civil matter will have to be thrown out by the Court as a document of no legal value and effect, even though otherwise the same satisfies the legal requirements. I have to observe that merely because the power‑of‑attorney placed on record by an agent of the party in a civil matter is undated, it should not be disregarded by the Court, unless the Court is satisfied that the same is a fake document not executed in hi favour by the concerned party in the civil proceedings before the Court. A there was no challenge to the validity of the said authority having bee executed by the Department in favour of the two officials, I do no understand as to how it occurred to the learned District Judge to dishonour the same merely on the ground of its being undated.
I have noticed one more disquieting feature in the case. By leafing the appellate file of Court of District Judge which consists of few sheets, I fine that there has been filed power‑of‑attorney dared 29‑10‑1981 executed by the Executive Engineer, Highway Division Mardan in favour of the above two named officials for the .prosecution of the present case. This power‑of attorney on its stop is signed by an official of the Court of District Judge in token of having been filed on 4‑5‑1982, as this date has been written b the said official below his signature. Thus, according to the record of the Court of District Judge, this power‑of‑attorney was already on his file when he passed the impugned older dated 29‑7‑1982. I, therefore, wonder as to how this power of attorney escaped notice of the learned District Judge while hearing the appeal in this case. It is not denied that this power‑of ‑C attorney dated 29‑10‑1981 is a genuine document and legally no question can be raised against it. It is also conceded that bad the learned District Judge noticed this power‑of‑attorney, he would have given a different decision. Now as the Department had already placed on the file of the Court of District Judge proper power‑of‑attorney in favour of the above two named officials before he passed the impugned order, dated 29‑7‑1982 and as otherwise even the undated authority executed by the Department in favour of the said officials for the prosecution of the case was also legally a proper document, the learned District Judge should have accepted the same and heard the appeal for examining the question as to whether in the circumstances of the case the learned trial Judge had rightly exercised his direction while passing the ex name decree in favour of the plaintiff.
This brings me to examine the question whether the learned trial Judge while granting ex parte decree in favour of respondent on 19‑7‑1981, had judicially exercised his discretion in the light of the relevant law. I say the learned trial Judge, as the District Judge in appeal had only attended to and upheld the order dated 6‑12‑1981 by which the learned trial Judge dismissed the application on behalf of the Department for setting aside the ex parse decree on the ground that the same was presented by officials not authorised by the Department for the prosecution of the case.
Now although the learned trial was aware of his power of passing ex parte decree but be seems to have not adverted to the relevant provision empowering him in this behalf to understand its meaning and purport. I can, therefore, be said that according to him, ex parte decree can be pass mechanically and as a matter of automation if the defendant or anyone else not duly representing him does not turn up in the case on the date of hearing. The legislature cannot be supposed to enact such law, as it will oblige the Courts to decree patently time‑barred suits or suits patent dishonest or suits filed against minors, crippled or blind persons and widow whose appearance in Courts on the date of hearing cannot be expected just like normally healthy people. Such intention cannot be attributed to the legislature, as it offers violence event to the senses of an average man.
Having observed as above, I now turn to examine the relevant provision in the C. P. C. which confers power on the Court to pass ex parte order in a civil case. This provision is rule 6, clause (a), Order IX of the Code which is to the following effect :‑
"6.‑(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑
(a) if it is proved that the summons was duly served, the Court tray proceed ex parte and pass decree without recording evidence."
The language of this provision is plain beyond ambiguity on the point that the power of the Court in a matter of passing ex parte decree without recording evidence is discretionary. But discretion to pass ex pane must be exercised judicially and in this behalf there is no scope open to the Court to act on caprices while passing ex pane decree. Clause (a) reproduced above says that "if it is proved that summons was duly served, the Court may proceed ex parte and pass decree without recording evidence". By construing this provision, it becomes clear that the Court may pass ex part decree without recording evidence, if the defendant has been duly served but he chose to remain absent in disregard of the process of the Court. If it is found so, the Court will be entitled to come to a conclusion that the defendant does not have anything in rebuttal of the claim of the plaintiff. In such situation, it will be within the discretion of the Court to decide whether it should grant decree in favour of the plaintiff after recording evidence or without recording evidence. But this principle, as I observed above, will not be followed by the court in suits patently time‑barred or suits patently dishonest or suits filed against minors, crippled or blind persons or widows whose attendance in Court on the date of hearing cannot be supposed just like normally healthy people. The question of passing ex parte decree by the Court in a civil matter came up before the Supreme Court in the case of Sharnroz Khan and others v. Muhammad Amin and others (P L D 1978 S C 89). The Hon'ble Judge Dorab Patel who delivered judgment forth Court, after reproducing rule 6, clause (a) of Order IX, C. P. C. observe as under :‑
"The words and pass decree without recording evidence were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide as case without recording evidence. But does this mean that the question was left to the discretion of Courts or does it mean as submitted that it was incumbent on Court to decree a suit without recording evidence If Mr. Inayat Elahi' submission is correct, Courts would be compelled to decree patently time‑barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature nor would we be justified in doing so because the amended rule now reads :
' ..the Court may proceed ex parte and pass decree without recording evidence.'
The means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the; claim against the defendant after recording evidence or without recording evidence and like all discretion vested in Courts, this discretion must be exercised Judicially."
It is thus clear that it sis incumbent on the Courts before passing an ex parte decree to give a decision whether it should decree the claim against the defendant after recording evidence or without recording evidence. As in the present case, the learned trial Judge has not recorded any such decision as to justify the passing of ex parte decree without recording evidence, his impugned ex pane decree cannot be sustained in view of the above dictum laid down by the Hon'ble Judges of the Supreme Court. This is not the only act on the part of the learned trial Judge to warrant striking down of his order by which he passed the impugned ex parte decree. He even failed to appreciate that the Department had participated in the proceedings to contest the claim of the plaintiff reference to the record will show that after the Department was served, it filed written statement and issues were framed upon the pleadings of the parties. It is also clear from the record. as I have note earlier, that the abovenamed two officials were to attend the proceeding regularly on each date of hearing and their presence was to be marked by the learned trial Judge in the order sheets. In these circumstances, it cannot be sail that the Department was nut in a position to rebut the claim of the plaintiff, therefore, the learned trial Judge should have withheld his hand from passing the exparte decree in favour of the plaintiff against the depart ment/defendant without asking the defendant to produce evidence in support of his claim.
I have to observe that the Court is not empowered to pass ex part decree against the defendant by way of punishment if he is duly served but doe; not attend the Court. Ex parse decree is to be granted by the Court against the defendant on the presumption that the defendant has no case to challenge the claim of the plaintiff. But this is not the position in the present case. The‑defendant in this case after service attended the Court through his official representatives and a counsel. In the circumstances, if at all the learned trial Judge was to proceed ex parte against the department/ defendant, he should have in the exercise of his discretion under rule 6, clause (a) of Order IX of the Civil Procedure Code, asked the plaintiff to produce cogent evidence in support of his claim, because the defendant was duly represented by its officials representatives and counsel, had denied theta claim of the plaintiff in their written statement and issues had been framed] upon the pleadings of the parties.
What rule 6, clause (a) ibid has envisaged is that if it is proved that summons was duly served upon the defendant and despite that he did not turn up the Court may proceed ex pane and pass decree without recording evidence. The expression 'duly served' employed an this provision bear significance to denote that if the defendant was properly informed of the action against him and yet he knowingly did not participate in the proceed ings, it Will be a proof against him that he does not want to contest the claim of the plaintiff and so ex parte decree is warranted in view of his conduct.
It is conceded that no presumption can be raised against the defendant in the present case that he had no case against the plaintiff. In the circum stances discussed, the learned trial Judge should have formed opinion that on 19‑7‑1981 (when he passed the impugned ex parte decree), nobody turned up on behalf of the defendant due to unavoidable circumstances. This view is a plausible view when notice is taken of the fact that previously the official representatives of the Department were to attend regularly on every date of hearing and had to participate in the proceedings. Equity, therefore, demands that at the most the learned trial Judge should have adjourned the case on payment of costs to other side.
The learned trial Judge was also wrong to reject the application of the Department for setting aside the ex parte decree on the ground that the officials who filed it were not authorised agents of the Department. I have already observed that the said officials were to appear on behalf of the Department regularly on each date of hearing and their presence was to be marked in the order‑sheets by the learned trial Judge but he never took the trouble to ask the said officials if any authorisation has been executed in their favour by the Department to defend it in the case. Had he so asked them on an earlier occasion, surely the said officials would have produced written authorisation long before the passing of the impugned decree. Even otherwise, as the said officials were admittedly employees of the Department, they were therefore, not strangers by any stretch of imagination. It is a matter of record that the said officials filed application for setting aside the impugned ex parse decree on the same date on which it was passed by the learned trial Judge. The learned trial Judge should, therefore, have asked them to produce written authorisation in their favour from the Department before he was to hear their application for setting aside the ex parte decree. This was a just course in the circumstances of the present case but unfortunately the learned trial Judge did not consider it.
The net result of the above discussion is that this revision application is accepted and while setting aside the impugned ex parte decree of the two Courts below, the case is remanded to the learned trial Judge with direction, to dispose it of on merit and according to law after hearing the parties. Under the circumstances, there will be no order as to costs.
A. A. Revision accepted.
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