Case Law and Judgment (O.1X, R.13 & 5.115, framing issues and recording of evidence)

Civil Procedure Code (V of 1908)--

---O.1X, R.13 & 5.115--Ex parte decree, setting aside of--Application of respondent for setting aside ex parte decree rejected by trial Court without framing issues and recording of evidence--Appellate Court below accepted appeal tiled by respondent and remanded case to trial Court for decision afresh after framing issues--Trial Court, however, assumed that Appellate Court through order of remand had set aside ex parte decree after acceptance of respondent's application which was in fact remanded to Trial Court for decision after framing issues--Trial Court was thus directed to implement order of Appellate Court and decide said application after framing issues by High Court in revision.

Rana Muhammad Saleem Akhtar for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd March, 1989. 

YAQOOB MASIH VS PROVINCE OF PUNJAB
1989 M L D 3111
[Lahore]
Before Munir A. Sheikh,
YAQOUB MASIH and others Petitioners
Versus
PROVINCE OF PUNJAB--Respondent
Civil Revision No. 1363 of 1988, decided on 22/03/1989.

JUDGMENT

This revision petition is directed against the order dated 8-6-1988 passed by the learned Addl. District Judge, Faisalabad, by which he has accepted the appeal filed by the respondents against the order dated 7-3-1987 passed by the learned trial Court dismissing an application under Order 9 rule 13 and Section 12 (2) of the CPC.

2. The facts relevant for disposal of this revision petition in brief are that on b-2-1985 ex parte decree was passed against the respondent in the suit filed by the petitioners. The respondent moved an application under Order 9 Rule 13 and Section 12 (2) read with Section 151 CPC for setting aside the said decree. The application was contested. The learned trial Court without framing issues and recording evidence rejected the application through order dated 7-3-1987. Feeling aggrieved the respondent filed appeal against the said order before the learned Addl. District Judge, Faisalabad. This appeal has been accepted through impugned order dated 8-6-1988 and the case remanded to the learned trial Court for decision in accordance with law after framing issues and giving findings on merits. This order has been challenged in this revision petition.

3. The respondent is absent despite service. He is, therefore, hereby proceeded against ex parte.

4. Learned counsel for the petitioners submitted that Chanan Masih one of the respondents in the appeal had died and the learned lower appellate Court Passed an order directing the appellants in the appeal to file amended appeal impleading the legal representatives of Chanan Masih as respondent. This order according to the learned counsel was not complied with and the appeal was decided without impleading the legal representatives of Chanan Masih.

5. Learned counsel for the petitioners could not support this argument with reference to any specific order passed by the learned lower appellate Court directing the appellants/respondents to file amended appeal impleading the legal representatives of Chanan Masih as respondent. This argument, therefore, cannot be accepted, as there is no material placed on the record in its support.

6. Learned counsel for the petitioners then argued that the learned lower appellate Court could only remand the case for disposal of application moved by the respondent under Order 9 Rule 13 and Sections 12(2) and 151 CPC after framing issues and recording evidence whereas after the remand the learned trial Court has assumed that the ex parte decree has been annulled through the impugned order and the main suit was directed to be decided after framing issues. According to the learned counsel the learned trial Court is proceeding with the suit itself.

7. The impugned order dated 8-6-1988 implicitly provides that only the application under Order 9 Rule 13 read with Section 12(2) and 151 CPC moved by the respondent for setting aside the ex parte decree was remanded for fresh decision after framing the issues. The relevant portion of the impugned order is as under:--

"The application moved by the appellant could not be disposed of without framing the issue and without allowing opportunity to the appellant to produce the evidence. The impugned order is not sustainable in the eye of law. When there are allegations of fraud, there is no, question of the limitation. Moreover, on the basis of fraud the application under Section 12(2) CPC can be moved at any time."

After recording this reasoning the operative part of the order reads as under:--

"For the foregoing reasons the appeal is accepted and order of the learned trial Court is set aside. The case is remanded to the learned trial Court for the decision in accordance with law. The learned trial Court shall frame the issue and thereafter give its findings on merits."

8. In view of these clear and specific directions in the remand order I am at loss to understand as to how the learned trial Court as argued by the learned counsel for the petitioners has assumed that the learned lower appellate Court through the impugned order has set aside the ex parte decree after acceptance of respondents application aforementioned. It is the said application which was remanded for decision after framing issues. The learned trial Court, therefore, is directed to implement the said order and decide the said application after framing the issues. The petitioners are at liberty to defend the said application on any grounds available to them under the law, both factual and legal subject to what has been held in the impugned order. The revision petition with these observations and clarification is disposed of without any order as to costs.

M.Y.H./Y-19/L

Order accordingly.