Tuesday, 28 October 2014

Powers of a court under Order I Rule 10(2) of CPC

PLJ 1992 AJK 45
Present: ABDUL MAJEED MALLICK, CJ
SUPERINTENDING ENGINEER, ELECTRICITY, MIRPUR AND ANOTHER-Petitioners
versus
KASHMIR STEEL MILLS and another-Respondents
Civil Revision No.33 of 1991, accepted on 16.2.1992 (approved for reporting on
24.3.1992)

 (i) Civil Procedure Code, 1908 (V of 1908)--
—O.I, R.10(2)—Civil suit—Application for being impleaded as defendant— Whether Superintending Engineer (Electricity) could be allowed to be impleaded as defendant-Question of-Order I, Rule 10(2) of C.P.C. empowers Court to join any person as defendant who ought to have been joined as such for his presence before Court being necessary in order to enable Court to settle and adjudicate upon question involved in suit effectively and completely—Held: Superintending Engineer being a necessary party, waseligible to seek his appearance before Court as defendant by arraying him as such-S.E. directed to move District Judge for impleading him as defendant.
[P.50]F
(ii) Civil Procedure Code, 1908 (V of 1908)--
—O.IX. R.6~Civil suit-Non-appearance of defendants--£xparte order against-Challenge to-Order of exparte proceedings was recorded by clerk of Court and was signed by Presiding Officer-Application for setting aside exparte order was presented by a junior clerk who was neither party nor authorised agent of petitioners-It was not accompanied by affidavit-Interim orders show that defendants 1 and 3 were still being summoned for appearance and were not served till date of exparte order-Date on which exparte proceedings were ordered, was not date of hearing in suit—Held: Exparte proceedings against defendants 1 and 3 were patently unwarranted and as such illegal.
[Pp.47,48&50]A,B&C
PLD 1983 SC (AJ&K) 223 rel.
(iii) Civil Procedure Code, 1908 (V of 1908)--
—O.IX R.6-Civil suit-Non-appearance of defendants-£xpa/te order against- Challenge to-Suit was at stage of filing objections to miscellaneous application and defendants were not asked to file written statement at that stage-Despite exparte proceedings, defendants could join proceedings and present their written statement on next date for progress of suit—Held: Neither District Judge nor counsel for parties cared to appreciate situation of proceedings and unnecessarily indulged into ancillary proceedings resulting in present petition-­ Petition acccepted and exparte proceedings set aside.     [P.50JD&E
Mr.Muhammad Akhtar Chaudhry, Advocate for Petitioners. Ch.Muhammad Taj, Advocate for Respondents.
ORDER
The petition is addressed against the order of learned District Judge, Mirpur, passed on November 14, 1991, resulting in dismissal of application to set aside the exparte proceedings.
2. Kashmir Steel Mills brought a suit for perpetual injunction against the Superintending Engineer (Electricity), Muzaffarabad, Executive Engineer i, Electricity), Mirpur and Azad Government of the State of Jammu and Kashmir through its Chief Secretary, in the Court of District Judge, Mirpur, on May 8, An application for interim relief was also moved. The Executive Engineer (Electricity) Mirpur, was duly served, as such he appeared in the Court on June 17, 1990 when the case was adjourned for presence of the other defendants. On August 25, 1991, as the defendants were absent, they were proceeded exparte and plaintiff was ordered to lead his evidence on the next date. On August 29, 1991,statement of plaintiff as witness was recorded when an application was moved on behalf of defendants to set aside the exparte proceedings recorded against them. The application was opposed. It was, therefore, dismissed for want of proper presentation and sufficient cause for the absence of the defendants on August 25, This order has been assailed in the present petition.

3.           Mr.Muhammad   Akhtar,   the   learned   Counsel   for   the   petitioners contended that the petitioners were present in the Court on August 25, 1991 and
were sitting in the Retiring Room of the District Judge when the case was called on for hearing by the Clerk of Court, in his own office. The defendants not beingaware of the calling of the case, could not put up their appearance personally before   the   Clerk   of  Court  who   recorded  the   impugned  order  of exparte proceedings. The application was moved on August 29, 1991 i.e. 5 days after the passing of the order of exparte proceedings, as such the application was withintime and it well-explained the cause of absence of the defendant-petitioners. Ch.Muhammad Taj, the learned Counsel for the opposite side, controverted the aforesaid points and contended that none of the petitioners was present in the premises of the Court at the time when the suit was called on fof hearing therefore,   exparte   proceedings  were   correctly   made   against   them.   It   was emphasised that the application to set aside the exparte proceedings was neither presented properly by the petitioners or through their authorised agent nor it contained sufficient cause for absence of the petitioners. It was argued that said application was not accompanied by an affidavit.
4.      It appears from the record of the trial Court that the order of exparte proceedings was recorded by the Clerk of Court and was signed by the Presiding Officer. The application to set aside the exparte proceedings does not reflect presence of the petitioners in the Retiring Room of the Presiding Officer, as contended by the learned Counsel for the petitioners. The application is quite vague   and   ambiguous.   It   only   shows   that   absence   was   not   wilful.   The representative of the petitioners was present in the Court who could not put up his appearance for lack of knowledge of calling of the case. The application was signed by the petitioners but the interim orders reflect that it was presented before the Court by Muhammad Yasin, a Junior Clerk. Muhammad Yasin was neither a party nor an authorised agent of the petitioners, as such presentation of the application, prima facie, was not made by the petitioners. The application was not accompanied by an affidavit. It is, therefore, rightly pointed out by the learnedCounsel for the opposite side that the application, though moved within time, carried no satisfactory explanation relating to absence of the petitioners in the Court at the relevant time. The objection is, therefore, well founded.
5.            Here,   it   is   relevant   to   state   that   the   Superintending   Engineer (Electricity), Mirpur petitioner No. 1, is not party to the suit before the DistrictJudge, as such exparte order was not passed against him. The petition against the impugned order to his extent, is not maintainable on that score.  owever, an application was moved on his behalf before this  Court  to implead him as defendant, in the suit. This aspect of the case shall be dealt with next.
6.            The  relevant  provisions  relating  to   appearance   of the  parties  and consequences of their non-appearance before the Court, are postulated under thepurview of Order 9, CPC. The relevant rule of procedure which attracts to the position where the plaintiff appears and defendant does not appear when the suit is called on for hearing, is Rule 6. Under this rule, when it is proved that the summons has been duly served on the defendant and he has failed to appear when the suit is called on for hearing, the Court is empowered to proceed ex-parte against such defendant. Next, when it was not proved that the summons was duly served on the defendant instead of proceedingexparte due to failure of the defendant to appear before the Court when the suit is called on for hearing, the Court was enjoined to direct that second summons be issued for its service on the defendant.
7.            In present case, the summons was shown to have been served on the Executive   Engineer   (Electricity),   Mirpur,   petitioner   No.2,   and   not   on Superintending Engineer (Electricity), Muzaffarabad and the Chief Secretary who represented the Government. The proceedings preceding to the order of August
25, 1991 reflect that defendants No.l and 3 were still being summoned for their 
appearance in the Court and by the time, they were not duly served. In this view of the matter, exparteproceedings against defendants No.l and 3 were patently unwarranted, as such illegal.
8.            It would be useful to mention here that on June 19, one Muhammad Ishaque, an authorised agent of respondents No.l and 3 was recorded present but on that day, the Presiding Officer was on leave, as such the case was adjourned to July 16. On that day, again, the authorised agent of respondents No.l and 3 wasrecorded present and the Presiding Officer, again, was on leave, as such the case was adjourned to August 25. No authority of defendants No.l and 3 in the name of Muhammad Ishaque, or any other person was available on the file of the trial Court.  This  suggests that  Muhammad Ishaque  or  someone else were not authorised by respondents No.l and 3 to put up his personal appearance on their behalf.
9.     Rule 6(1), Order 9, CPC, as noticed earlier, refers to procedure where plaintiff appears and defendant  does not  appear.  It  provides  the mode of proceedings to be carried by the trial Court in presence of respective conditions ihrstrated therein. When it is proved that the summons was duly served on the defendant and he failed to appear when the suit was called on for hearing and the plaintiff thereby appeared, the court was empowered to proceed exparte against the defendant. Here, reference to non-appearance of defendant was co-related to the term "hearing of the suit". The term "hearing of the suit" finds its mention under the provisions of Orders 9 & 17, Rules and 3. It reflects that the Court has to dismiss the suit or to proceed exparte for want of appearance of the plaintiff and defendant when either of them failed to appear when the suit was called on for hearing. In other words, an action of dismissal of suit or exparte proceedings or exparte decree was permissible only when the party failed to appear on the day fixed for hearing of the suit.
10.  The term "hearing" invariably received the attention of the superior judiciary of the Sub-Continent and the consensus is that it confines to theproceedings relating to progress in the suit and not to proceedings where only a step prior to the progress of the suit was to be taken. The proposition waselaborated in different cases decided by this Court and Supreme Court of Azad Jammu and Kashmir. Reference is made to Habib Bank's case (PLD 1983 S.C.AJ&K 223). It was a case for recovery of amount as damages instituted by Khawaja iMuhammad Ishaque against Habib Bank Limited. On the day when the order of exparteproceedings was passed, the case was adjourned for proper orders. On that day, the defendants were absent and they were proceeded exparte.The learned Chief Justice while dealing with Rule 6(1) of Order 9, CPC, observed:--
"S.Discussing the scope of Order IX, Rule 6(1) of the C.P.C. the Courts are practically one to observe that it is confined to the first hearing in the suit and does not,perse, apply to the subsequent hearings. The provisions under this order do not apply to a case (as the case is before us) in which plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit".
11.        The term "hearing" was further examined and construed as:~
13. The word "hearing", it may be observed, has been defined nowhere in the C.P.C. As defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an ir'erlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity".

As on the date when the exparte order was recorded, no progress in the suit was to be made as the suit was adjourned for proper orders, the order of setting aside exparteproceedings was maintained.
12.    In present case, as noticed earlier, the Presiding Officer was on leave on two earlier dates to which the case was adjourned and again, proceedings wereadjourned to August 25, 1991, for proper orders. Thus, the date August 25, 1991 was not the date of hearing in the suit, as such exparte proceedings on account of absence of the defendants were unwarranted and illegal.
13.    The suit was at the stage of filing of objections to the miscellaneous application and defendants were not asked to file the written statement at thatstage. Despite  the fact  that exparte  proceedings were  ordered  against the defendants on August 25, 1991, they could join the proceedings on August 29,1991 and present t.heir written statement for the progress of the suit. It appears that neither the learned District Judge nor the learned Counsel for the partiescared to appreciate the situation of the proceedings under consideration and unnecessarily indulged into ancillary proceedings resulting in present petition.
14.    In this view of the matter, the petition is granted. The exparte proceedings recorded on August 25, 1991 are hereby set aside and the Executive Engineer, defendant No.2, who is already before the Court, is free to file his written statement on the next date of hearing.
" 15. The Superintending Engineer, Mirpur (Electricity) as described earlier, moved an application to implead him as defendant. The application is covered by the provisions of Order 1, Rule 10(2), CPC. Sub rule (2) empowers the Court to join any person as defendant who ought to have been joined as such for his presence before the Court, being necessary in order to enable the Court to settle and adjudicate upon the questions involved in the suit effectually and corrfpletely. The Superintending Engineer (Electricity), Mirpur being a necessary party, was F eligible to seek his appearance before the Court as defendant, by arraying him as such. Nevertheless, this application is to be moved before the trial Court first and  his Court can be approached only when such application is not adequately considered. Therefore, the Superintending Engineer (Electricity), Mirpur is directed to move the learned District Judge for impleading him as defendant, to enable him to prosecute the defence in the suit. The application is disposed ofaccordingly. No order as to costs.(MBC)                                 (Approved for reporting)              Petition accepted.

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