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Civil Appeal No. 2 of 1951, decided on 6th June, 1951, from the order of Senior Sub‑Judge, Bahawalpur, dated 20th March, 1951.
Civil Procedure Code (V of 1908), O. IX, r. 6‑Exparte order be Passed and not order under O. XVII, 17, r. 3, in absence of other party‑Such order may be set aside under O. r. IX, 13.
Where a party has taken time to produce evidence 2nd on the date fixed for hearing of that evidence he is absent the proper course to follow is to pass an ex‑Parte decree and not an order under O. XVII r. 3. The words "make such order as it thinks fit" in O. XVII r. 2 do not include an order under r. 3. In such a case, even if the Court purports to deliver judgment on merits, the order is to be treated as an ex parte decree, for the setting aside of which the procedure laid down in O. IX, r. 13, is to be followed.
A. I. R. 1932 Lah. 477 and A. I. ‑R. 1925 All. 182 referred to.
Noor Muhammad applied to be appointed guardian of the person and property of certain minors. Mst. Zeb Ilahi in that case was represented by Jindwada as her Mukhtar Khas. After Noor Muhammad closed his case, Mst Zeb Ilahi was allowed an adjournment to produce her evidence in rebuttal and the case was fixed for 13th of January 1951. On that date none appeared on behalf of Mst. Zeb Ilahi. The Senior Sub‑Judge decided the case on merits.
Jindwada, Mukhtar of Mst. Zeb Ilahi applied under O. IX. r. 13, for setting aside the ex‑carte order. The Senior Sub‑Judge held that as the case was decided by him under O. XVII, r. 3, the question of setting aside the ex‑parte order did not arise. He therefore, dismissed the petition for setting aside the ex‑parte decree on 29th of March 1951. The present is an appeal against that decision. Noor Muhammad is present in person.
O. IX, r. 13, refers to the setting aside of the ex‑Parte decrees. The remedies are open to a defendant against whom ex‑Parte decree has been passed‑ under O IX, r. 6 for default of appearance at the hearing;---
(1) He may appeal from the ex‑Parte decree under section 96 Civil Procedure Code.
(2) He may apply for a review of a judgment under O. LXVII, r.1.
(3) He may apply under this rule for an order to set aside the provided the application is made within the period
In A. I. R. 1932 Lah. 477 it was laid down that where a party has taken time to produce evidence and on the date fixed for hearing of that evidence he is absent the proper course to follow is to pass an ex‑Parte decree and not an order under O. XVII, r. 3. The words "make such order as it thinks fit" in O. XVII, r. 2, do not include an order under Rule 3. In such a case, even if the Court purports to deliver judgment on merits, the order is to be treated as an ex‑pane decree, for the setting aside of which the procedure, laid down in O. IX, r. 13, is to be followed. See also A. I. R. 1925 All. 182 which was followed in this ruling.
It is therefore evident both from O. IX, r. 13, itself and the ruling quoted by me that the order of the Lower Court was against law and could not be sustained. The appeal is therefore accepted and the order under appeal is set aside and the case is sent back to the Lower Court to decide the petition for setting aside the ex‑Parte decree on merits. I would leave the parties to bear their own costs in this Court. The parties shall appear in the Court, of Senior Sub‑Judge Bahawalpur on 10th of June 1951.
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