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Writ Petition No.727 of 1985, decided on 4th June, 1985.
---O.IX. R.7--Ex parte order--Setting aside of--Ex parte proceedings ordered by Trial Court against defendants/petitioners when plaintiff had yet to produce his evidence--Defendant can join the proceedings at any stage without seeking recall of ex parte order passed against him--Provisions of Order IX, R.7 C.P.C. are attracted only if defendant applies for setting aside of ex parte proceedings taken ii, his absence but where no substantial proceedings -in defendant's absence were conducted, prayer for setting aside of ex parte proceedings would be merely an idle formality--Courts below, held; had fallen in error in not allowing defendants to join proceedings the stage of production of evidence by plaintiff--Such orders suffering from error apparent on face of record were liable to be corrected through judicial review and were thus set aside and case sent back to Trial Court for hearing defendants/ petitioners.
Krishen Lal Malhotra v. Madan Lal & others P L D 1950 Lah. 82; Ghulam Muhammad and others v. Mst.Irshad Begum and others PLD 1964 Lah. 782 and Habib Ismail Bajwa v. Kh. Ghulam Mohy-ud-Din P L D 1970 Lah. 428 ref.
C.A. Rahman for Petitioners.
Nemo for Respondents.
Date of hearing: 4th June, 1985.
Respondent No.3 filed a suit against the petitioners' predecessor-in-interest, namely Rashid Ahmad, for permanent injunction. During the pendency of the suit the latter died and was substituted by the petitioners. On 20-5-1984, the suit was fixed for plaintiff-respondent's evidence, but the petitioners did not enter appearance. The learned trial Court passed an order that they should be proceeded against ex parte and adjourned the case to 16-7-1984 for recording the respondent's evidence. But, on that date, the petitioners moved an application for setting aside the ex parte order. It was dismissed by the learned trial Court on 30-7-1984, as barred by time. The learned District Judge concurred with this dismissal. The petitioners' revision petition thus failed. The order dated 18-12-1984 passed by the learned District Judge in revision is under challenge in this writ petition.
2. The name of the respondent's learned counsel has been cited in the cause list, but no one appears on his behalf, despite repeated calls made, both before and after the interval. Ex parte proceedings are, therefore, conducted against him.
3. I have heard the learned counsel for the petitioners. It is discernible from the record that the respondent had yet to produce his evidence when on 20-5-1985, ex parte proceedings were ordered against the petitioners. Thereafter uptil now no evidence on behalf of the respondent has been recorded. It is well-settled that a defendant can join the proceedings at any stage without seeking the recall of 1A the ex parte order passed against him. A reference in this connection may be made to Krishen Lal Malhotra v. Madan Lal & others P L D 1950 Lah. 82; Ghulam Muhammad and others v. Mst.Irshad Begum and others P L D 1964 Lah. 782 and Habib Ismail Bajwa v. Kh. Ghulam Mohy-ud-Din P L D 19760 Lah. 428.
In the instant case, since by the date the petitioners' reappeared in the trial Court, i.e. on 16-7-1984, the respondent had not produced any evidence, they could well participate in the proceedings and cross-examine the respondent's witnesses without applying for setting aside the ex parte order. Order IX, Rule 7 C.P.C., is attracted only if the defendant applies for setting aside of the ex parte proceedings taken in his absence but where no substantial proceedings in the defendant's absence, as, in the case in hand, are conducted, the prayer for setting aside of the ex parte proceedings will be merely an idle formality. The Courts below have fallen in error in not allowing the petitioners to join the proceedings at the stage of production of his evidence by the respondent. In this behalf the impugned orders suffer from error apparent on the face of the record. These orders are, therefore, liable to be corrected through judicial review.
4. This writ petition, is, therefore, accepted, the impugned orders are set aside and the case is sent back to the learned trial Court for hearing the petitioners who shall be at liberty to join the proceedings, cross-examine the respondent's witnesses and produce their evidence in rebuttal, if they desire to do so.
As the respondent has not appeared to contest this writ petition, the parties are left is bear their own costs.
S.Q./M-364/L Petition accepted.
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