Law: Constitution of Pakistan, 1973

Section: 199,77

Law: Code Of Civil Procedure, 1908.

Section: 9, 115, ORDER XLI Rule 21, ORDER IX Rule 13

SUMMARY 1. At the trial stage, Order IX Rule 13, C.P.C. enables a defendant to seek setting aside of an ex-parte decree on proof that summons were not duly served or that sufficient cause prevented appearance. At the appellate stage, the corresponding remedy is provided under Order XLI Rule 21, C.P.C., which permits a respondent against whom an appeal has been heard ex parte to apply for rehearing of the appeal on similar grounds. The distinction between these two provisions of law is merely one of terminology/form, not of substance. An appeal is a continuation of the suit. When the appellate Court is satisfied that the respondent was not duly served, it may order rehearing of the appeal under Order XLI Rule 21, C.P.C. Such rehearing necessarily implies that the earlier ex-parte judgment cannot survive. It must first cease to operate. In effect, therefore, directing rehearing amounts to setting aside the earlier ex-parte judgment. If the previous order/judgment were to remain intact, there would be nothing left to rehear. 2. The civil Court exercises plenary jurisdiction under section 9 of the Code of Civil Procedure, 1908 to try all suits of a civil nature unless such jurisdiction is expressly or impliedly barred. The exclusion of jurisdiction is not to be readily inferred. Any provision seeking to oust the jurisdiction of a Court of general jurisdiction must be construed strictly. 3. Where a statute provides a special forum or bars the jurisdiction of the civil Court, such bar operates only when the impugned action has been taken within the four corners of the statute. Where the authority acts without jurisdiction, in violation of the statute, or in disregard of the fundamental principles of judicial procedure, the jurisdiction of the civil Court remains intact. 4. Where the very competence of a public authority to impose a fiscal levy is questioned, the dispute strikes at the root of jurisdiction. In such a situation the civil Court is not merely competent but duty bound to examine whether the demand has any foundation in law. If the statute does not authorize the levy, the bar of jurisdiction cannot be invoked to protect an action which itself is without…