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Suit No. 493 of 1979 and Civil Miscellaneous Applications Nos. 3841, 3852 and 3853 of 1986, decided on 28th September, 1986.

‑‑‑0. IX, R. 13‑‑Limitation Act (IX of 1908), S. 5‑‑Ex parte decree setting aside of‑‑Condonation of delay‑‑Limitation‑‑Computation of time for limitation‑‑Knowledge of decree‑‑Where defendants came to know of ex parte decree when they were served with notice of execution thereof, time, held, was to be computed from date of knowledge‑‑Application filed setting aside of fiat parte decree within one month from date of knowledge would be within time‑‑Application for condonation of delay was allowed and ex parte decree was set aside.

‑‑0. IX, R. 6‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 118‑‑Suit for recovery of money for use and occupation of land‑‑Exercise of discretion‑‑Ex parte decree granted without recording evidence‑‑Claim between parties highly disputed‑‑Burden of proof‑‑Where dispute between parties was highly controversial and debatable, burden, held, was on plaintiff to prove genuineriess and reasonableness of claim‑‑Court was required in such cases to) exercise discretion by deciding case after recording evidence on damages rather than passing ex parte decree without recording evidence.

Collector Mardan arid others v . Faiz Muhammad P L D 1986 Pesh. 19 and P L D 1978 S C 89 rel.

Ch. Abdul Majeed arid Qamar Abbas for Plaintiff.

Abdul Nasir Khan for Defendants.

The plaintiffs have failed this suit for the recovery of a substantial sum of Rs.54,144.50 which is made up of a claim of Rs.46,463 for use and occupation charges of 1 :he land belonging to the plaintiffs and used by the defendant for period 17‑10‑1976 to 31‑3‑1978; expenses on publication of notices incur red by the plaintiffs in the sum of Rs.1,276 and interest on the principle amount amounting to Rs.7,201.

According to the allegations in the plaint, the defendants have used the land for the purpose of storing their machinery and goods on the plot belonging to the plaintiff. After exchange of notices between the parties this suit was fled. A written statement was filed by the defendants and on pleadings of parties the following issues were framed:‑

"(1) Whether or not the a charges claimed by the plaintiffs are reasonable

(2) What should the decree be and consequences of costs "

The case was fixed for regular hearing on 16‑5‑1984 when the plaintiff's counsel was present, but t :he defendants remained absent and an ex parte decree was passed against the defendants.

I have read this order of the learned Judge and it appears that the defendants were willing to pay the normal rents of the land to the plaintiff, but were resisting the claim of the plaintiff only on the ground that it was highly in flated and exaggerated. The learned Judge, without recording any evidence on this crucial issue, proceeded to pass decree.

This application has been filed under Order IX, Rule 13 read with section 151. C . P. C . praying for setting aside this ex parte decree

Another application Civil Miscellaneous Appeal No. 3852 of 1986 has been filed under section 5 of the Limitation Act. Both these applications are supported by an affidavit. The affidavits have been filed by the defendants as well as by the Advocate of the defendants in support of both these applications.

So far as Civil Miscellaneous Appeal No. 3852 of 1986 is concerned, the affidavit of the defendants is to the effect that the defendants had no knowledge or information about the date of hearing. They expected that the suit would be fixed in due course and they would be informed by their Advocate. The defendants came to know of the fate of the suit i.e. ex parte decree only on 21‑8‑1986, when they were served with the notice of execution of the ex parte decree. This application has been filed on 28‑8‑1986 and if time is to be computed from the date of knowledge, this application would be within time. In the circumstances of the case and particularly in view of the affidavit of the learned counsel himself, I would allow this application moved under section 5 of the Limitation Act and hold that the application for setting aside the ex parte decree is within time.

This application under Order IX, Rule 13 read with section 151, C . P. C . is also supported by an affidavit of the defendant as well as the Advocate of the defendant. As a matter of fact the burden to explain the circumstances under which this ex parte decree came to be passed is on the defendant's Advocate and not on the defendants themselves, because this case was being conducted by the Advocate. This position is frankly admitted by the learned counsel for the defendants as is evident from his personal affidavit. The learned counsel has filed a detailed affidavit of the circumstances under which the suit was ex parte decreed and of the date of knowledge of this ex parte decree. Reference may be made to paras. 6, 7 and 8 of the affidavit of the learned counsel. I would do well to reproduce these paras. in extenso: ‑

"(6) That I made necessary enquiries and I found that I being a chronic patient of high blood pressure was doing light work during third week of August, 1984. I checked up the cause list of 16‑5‑1984 and I found that unfortunately I had omitted to note from the cause list that the suit was fixed on 16‑5‑1984 and since I had omitted to note the date I could not inform of the date to the defendant and I and the defendant came to know of the ex parte judgment dated 16‑5‑1984 on 21‑8‑1986.

(7) That I say that the ex parte judgment dated 16‑5‑1984 is bad in law. I say that there was no wilful or deliberate default on my part or on the part of the defendant.

(8) That I say that the defendant should not be made to suffer for the accidental slip or omission on my part."

It may be mentioned that no counter‑affidavit was filed till 25‑9‑1986 and even then a copy of the same was not supplied to the counsel of the defendants. This matter was called several times since morning and I have heard the learned counsel for the defendants Mr. Abdul Nasir Khan now at 12‑45 p.m. In the circumstances I would not consider the counter‑affidavit because no copy of the counter‑affidavit was supplied to the learned counsel for the defendants till today.

From the perusal of the affidavit of the Advocate of the defendants it appears that the misfortune occurred on account of the illness of the Advocate for the defendants. It is on account of human error that the defendant's counsel could not read the case which was published in the cause‑list and as rightly urged by the learned counsel in para. 8, the defendants should not be made to suffer, "for the incidental slip or omission on my part".

During the arguments the learned counsel for the defendants has relied on a very recent case decided by Mr. Usman Ali Shah, J., Collector Mardan and others v. Faiz Muhammad P L D 1986 Pesh. 19. His Lordship has closely examined the provisions of Order IX, Rule 6, C.P.C. In this judgment a case decided by the Supreme Court, reported in PLD 1978 SC 89 has also been referred to. Their Lordships of the Supreme Court while examining the impact of the amended Order IX, Rule 6, C.P.C. have held that the words 'pass decree without recording evidence inserted in the Rule by Law Reforms Ordinance, 1972, do not completely absolve the Court from the duty to record evidence and pass a decree, as a matter of course on account of the absence of the defendant on the date of hearing. Their Lordships have considered the situation in which patently time‑barred suit or patently dishonest, absurd or exaggerated claims may have been filed and if such claims are mechanically or as a matter of course decreed on account of absence of the defendants, it would work grave injustice and cause great prejudice to the class of defendants who may have genuine defence, but for good cause were prevented from attending the Courts on the dates of hearing.

In the present case the defendants were struggling to establish that the claim of the plaintiff was highly exaggerated and instead of charging normal rents for the land the plaintiffs were demanding arbitrary and fanciful charges for the use and occupation of the land. Indeed this was the only issue involved in the case.

Learned counsel for the defendant has argued that it was incumbent on the plaintiffs and obligatory on the Court to record evidence on this issue. Being in the nature of damages and being a highly disputed claim, the burden was on the plaintiffs to establish the genuineness and reasonableness of charges they were claiming. Obviously the plaintiffs have failed to do that. There remains a highly controversial and debatable issue between the parties, whether the charges claimed by the plaintiffs are fair, equitable or they are highly exaggerated or fanciful as urged by the learned counsel for the defendants. In the circumstances it was a fit case in which the Court should have exercised the discretion by deciding the case after recording the evidence on damages rather by passing an "ex parte decree without recording evidence". This would be in confirmity with the decisions relied upon by the learned counsel for the defendant. Particularly the dictum laid down by the learned Judges of Supreme Court in the case reported in PLD 1978 S C 89.

I would, therefore, set aside the ex parte decree, allow this Application (Civil Miscellaneous Appeal No. 3841 of 1986) and restore the suit to its original number to be disposed of in due course. The application stands disposed of.

This application under Order XXI, Rule 26, C.P.C. becomes infructuous in view of setting aside the ex parte decree.

The application stands disposed of as having become infructuous.

The learned counsel for the plaintiff states that as the decree was passed on account of a fault attributable to the Advocate of the defendants he would not claim any costs.

A.A. Order accordingly

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