PLJ 2024 Peshawar (Note) 205
Present: Syed Arshad Ali, J.
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Higher Education, Archives & Libraries Department--Respondent
C.M. No. 1337-P with C.R. No. 756-P of 2023, decided on 4.12.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.IX, R. 13--Ex-parte decree--Ex-parte decree was set aside conditionally--Direction to petitioner to provide bank guarantee--Question of--Whether trial Court while allowing an application to set aside an ex-parte decree could imposed condition upon defendant--Execution of agreement was not denial by petitioner--Outstanding amount was not denied by petitioner--Challenge to--The execution of agreement for providing 25 numbers of Toyota Hiace vehicles to provincial government had not been denied by petitioner--The petitioner had provided 12 numbers of vehicles whereas he was unable to provide remaining 13 vehicles--Total amount was paid as an entire consideration against purchases of 25 numbers of vehicles--The demand for bank guarantee to extent of
Rs. 80,000,000/- is reduced to 27,470,385/- and for satisfaction of remaining amount as claimed in suit petitioner would file a personal bond with two sureties undertaking repayment of claimed amount by respondent government in case it was decreed against petitioner--Petition disposed of.
[Para 5, 7 & 10] A, B, C & E
Civil Procedure Code, 1908 (V of 1908)--
----O.IX, R. 13--Jurisdiction--While setting aside decree, it has jurisdiction to impose certain terms and condition which may include payment into Court. [Para 9] D
AIR 1950 Mad. 618 & 1954 (56) BOMLR 74 ref.
Mr. Isaac Ali Qazi, Advocate for Petitioners.
Syed Fayaz Hussain Shah Baunri, Assistant A.G alongwith Mr. Muqarab Khan, Deputy Director and Mr. Abdul Waheed, Section Officer (Litigation) for Respondent.
Date of hearing: 4.12.2023.
Judgment
This petition challenges the order of the learned trial Court dated 26.06.2023 allowing the application of the petitioner and the exparte decree passed against him was set aside, however, with the condition that the petitioner shall submit bank guarantee for an amount of Rs. 80,000,000/- (eighty million).
2. The learned counsel appearing on behalf of the petitioner has argued that the condition is indeed very harsh and has also produced the written statement filed by the petitioner wherein it is mentioned that against the total liability, an amount of
Rs. 67,029,615/- has already been paid to the provincial government through various instruments. The learned counsel has next contended that the petitioner is also facing the criminal prosecution before the criminal Court and thus the condition in the impugned order is harsh and would obviously amount to denial of fair trial to the petitioner.
3. The learned AAG while supporting the impugned order has argued that the petitioner has committed fraud with the respondent-department and as per agreement he was required to provide 25 vehicles whereas against that only 12 vehicles have been provided and the remaining 13 vehicles are yet to be provided by the petitioner. Since the petitioner belongs to another province, therefore, he is required to provide sufficient security for satisfaction of decree as huge amount is outstanding against him.
4. Arguments heard and record of the case was perused.
5. It is evident from record that the execution of agreement for providing 25 numbers of Toyota Hiace vehicles to the provincial government has not been denied by the petitioner. The agreement was executed in the year 2015 and the entire consideration of
Rs. 94,500,000/- was paid to the petitioner in advance, the receipt whereof has not been denied by the petitioner. The respondent-government confirms that the petitioner has provided 12 numbers of vehicles whereas he was unable to provide the remaining 13 vehicles.
6. It is the case of the petitioner that he did not provide any vehicle rather the vehicles were purchased from the market for which he had made the payment.
7. It is further evident from record that total amount of
Rs. 94,500,000/- was paid as an entire consideration against the purchases of 25 numbers of vehicles and according to the respondent-government, out of which 12 vehicles have been provided whereas it is the case of the petitioner that he had paid an amount of
Rs. 67,029,615/-; thus an amount of Rs. 27,470,385/- is admittedly outstanding against the petitioner. However, it is for the trial Court to decide the issue whether the petitioner would pay the remaining amount or shall provide the vehicles against appreciation cost. Thus there exists a triable issue between the parties which is yet to be settled by the trial Court. Therefore, it prima facie appears that asking the petitioner to provide a bank guarantee for an amount of
Rs. 80,000,000/- (eighty million) is thus harsh and unreasonable beside it will deny the opportunity of a fair trial to the petitioner as provided under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.
8. The essential issue for adjudication of this Court is whether the trial Court while allowing an application to set aside an ex-parte decree can impose a condition upon the defendant. In order to appreciate this issue we would like to refer the relevant provision of law.
Order IX Rule 13, C.P.C.
13. Setting aside decree ex parte against defendant. [(1)] In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:”
9. The perusal of Rule 13 ibid in clear terms allows the Court that while setting aside the decree, it has the jurisdiction to impose certain terms and condition which may include payment into the Court. This issue was very elaborately discussed by the Madras High Court in the case of “Karumuri Surayya v. Thadepalli Pushpavalli Thayaramma and Ors” (AIR 1950 Mad 618) in the following terms:
“It seems to me that the wording “upon such terms as to” in the Rule should be read as applying not only to costs but to “payment into Court or otherwise as it thinks fit” as well. I do not think that punctuation referred to above in the rule in any way lends support to the contention of the advocate for the petitioner. It looks to me that the Rule does not restrict the power of the Court to impose conditions for setting aside an ex-parte decree to payment of costs only. The wording of the Rule is comprehensive enough to include conditions as to payment into Court of decretal amount or such other conditions as the Court thinks fit. Ordinarily the Court will not impose onerous conditions upon the defendant, such as the payment into Court of the whole or part of the decretal amount or as to furnishing of security therefore etc. The conditions as to deposit of decretal amount or such similar terms are imposed only under special circumstances. It is one thing to say that it is either inequitable or unjust to put the defendant to such onerous terms, but it is quite a different thing to say that the Court has no jurisdiction at all to impose such terms under any circumstances.”
In the case of “Somalal Nathalal Mistri v. The Vasant Investment Corporation Ltd. and Anr” (1954) 56 BOMLR 74, it was held:
“The next question is whether the condition which has been imposed by the Court below is a reasonable condition. The expression “such terms as to costs, payment into Court or otherwise as it thinks fit” suggests that the matter is one of discretion, but the discretion is to be exercised in a judicial manner. The condition to be imposed, therefore, upon a defendant should be reasonable and not oppressive. What condition should be imposed in a particular case must depend upon the facts of each case. In a particular case the Court may come to the conclusion that the defendant should pay into Court the entire amount. In another case the Court may come to the conclusion that it will suffice if the defendant is ordered to pay a portion of the decretal amount, and in a third case it is conceivable that the Court may come to the conclusion that the ends of justice will be met if the defendant is made to pay the amount of costs only. The true principle seems to me to be that while the Court has got power to impose conditions upon a defendant including the condition of the payment of the entire amount of the decree, the conditions to be imposed should be reasonable and should not be oppressive or at least should not be conditions which will result in the defendant not being able to defend the suit.”
10. The law developed in our jurisdiction as well as in Indian jurisdiction that while setting aside the ex-parte decree a reasonable condition can be imposed upon the defendant, however, the said condition should not have the effect of denying fair trial to the defendant. In the present case as the petitioner does not deny the outstanding amount of Rs. 27,470,385/-, therefore, it would be in the interest of both the parties that the demand for bank guarantee to the extent of Rs. 80,000,000/- is reduced to 27,470,385/- (twenty-seven million four hundred seventy thousand three hundred eighty-five) and for the satisfaction of the remaining amount as claimed in the suit the petitioner would file a personal bond with two sureties undertaking the repayment of claimed amount by the respondent government in case it is decreed against the petitioner. The said bank guarantee shall be produced before the Court in the name of government within a period of one month from the date of this judgment.
11. The petition is disposed of accordingly.
(Y.A.) Petition disposed of
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