Jawad Ashraf Vs Government of Khyber Pakhtunkhwa through Secretary Higher Education, Archives & Libraries Department

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.M No.1337-P12023 with C.R No.756-P12023 Jawad Ashraf Vs Government of Khyber Pakhtunkhwa through Secretary Higher Education, Archives & Libraries Department

JUDGMENT

Date of hearing: 04.12.2023

Petitioners (by): Mr. Isaac Ali Oazi. Advocate Respondent (by): Syed Fayaz Huq$i$ $hqh Bpunri. Assistant A.G alongwith Mr. Muqa,rab Khan. Deoutv Director and Mr. Abdul - - !J r

Waheed. Section Officer (Litigation).

SyED ARSHAD ALI. J.- 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.

4 It is fuither 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,Q29,6151';

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v thus an amount of Rs. 27,47Q,3851- 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 l0A of the Constitution of the Islamic Republic of Pakistan, t973.

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. t(l)l 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 tgrms as to costs. payqrent into Court or otherwise as i! 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 Surawa v, Thadeoalli PushoavaUi

Thavsramma and Ors" (AlR 1950 Mrad 618\ in the following terms.

"It seems to me that the wording $upon sach terms ds to" in the Rule should be read as applying not only to costs but to "paynent into Court or otherwise as it thinl<s fit" as well. I do not think that punctuation referued to above in the rule in any way lends support to the contention of the advocate for the petitioner. It loolcs 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 ,s comprehensive enough to include conditions as to payment into Court of decretal amount or such other conditions as the Court thinks /it. Ordinarily the Court will not impose onerous conditions upon the defendant, such as the payment into Court of the whole or port of the decretal amount or as to furnishing of security therefore etc. !@. as to deoosit of decretal amouft or- such simWr terms are imposed onlv under soecigl cirguftstqnces. 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 "Somalql Nathalal Mistri v. The Vasgnt Investment Corporotion Lld. and Anr',' (1954\F6 BOMLR 71, it was held:

"The next question is whether the condition which has been imposed by the Court below ,s a reasonable condition. The expression !@. as to costs. oavment into Court or otherwise as it thinks fit" suggests that the matteus one of discretion, but the discretion is to be exercised in a judicial monnen The condition to be imposed, therefore, upon a defendant should be reasonable and not oppressive. Wat 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 sffice if the defendant is ordered to pay a portion of the decretal arnount, and in a thtrd case it is conceivable that the Court may come to the conclusion that the ends of iustice 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 betng 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.27,470,3851-, 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 27,47 0,385l - (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.

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JUDGE

Date of hearing and announcement ofjudgment 04.12.2023 Date of preparation and signing of Judgment .....20.12.2023

S.B Hon'ble Mr. Justice Syed fushad Ali Mahmood Shah, SSS