Law: Civil Procedure Code (V of 1908)

Section: 6 , 115

  Civil Procedure Code (V of 1908)--- ----O.IX, R.6 [as mended by Law Reforms Ordinance (XII of 1972)]---Ex parte decree---Granting of---Essentials---Courts can pass ex parte decree even without recording evidence for, pleadings must be filed on oath or solemn affirmation--Nevertheless superior Courts had always looked with disfavour, decrees granted against absentees, without consideration of available record or application of mind---Factually amended O.IX, R.6, C.P.C. does not provide any arbitrary authority or blatant discretion to award decrees by closed eyes---Spirit of law demanded that whenever trial Court did not find it necessary to examine evidence, reasons must be recorded for showing justification for deciding the claim without taking further proceedings---Trial Court, while passing ex parte decree, made no reference to any portion of evidence, and pronounced judgment against petitioner merely for its absence  Ex parte decree passed against petitioner merely for its absence had, thus no legal sanction and same was clearly devoid of lawful authority. East and West Steamship Co, v. Queensland Insurance Co. PLD 1972 SC 663; Shewal Mal v. Seth Bhawani Mal Tora Chand PLD 1969 Quetta 81; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 and Mistri Muhammad Hassan v. Haji Said Muhammad and others 1986 CLC 1241 ref. Civil Procedure Code (V of 1908)--- ----O.IX, R.6 & S.115---Mere technicalities could not obstruct powers of superior Courts about correcting patent illegality or extremely unfair decision---Ex parte judgment and decree, as also orders passed by Courts below were set aside and case was remanded for disposal according to law. Courts have always insisted for determination of dispute on merits after proper opportunity and due consideration of claim of parties. Similarly under settled practice, perfunctory, reckless, non-speaking, arbitrary, mala fide or unjust orders had never been approved specially when dispute related to rights concerning immovable property. Thus mere technicalities could not obstruct powers of superior Courts about correcting patent illegality or extremely unfair decision. Evidently original ex…