P L D 2015 Peshawar 59
Before Muhammad Daud Khan, J
KHAYAL BADSHAH---Petitioner
Versus
AFZAL KHAN and 4 others---Respondents
Civil Revision No.252-B of 2013, decided on 3rd June, 2014.
(a) Civil Procedure Code (V of 1908)---
----O. IX, Rr.6, 7, 13 & S.96---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Arts.164 & 181---Suit for declaration---Ex parte proceeding---Limitation---Scope and application of O.IX, Rr.6 & 7, C.P.C.---Order IX, R.7, C.P.C. provided remedy against order passed under O.IX, R.6, C.P.C.---Limitation Act, 1908 did not provide (for) limitation for filing application under O.IX, R.7, C.P.C.---Order IX, R.7, C.P.C. itself governed period of limitation for filing application for setting aside ex parte proceeding---Application for setting aside ex parte proceeding could only be filed "at or before such hearing" (to which case was adjourned ex parte)---Where ex parte decree had been passed, defendant was precluded from questioning the order passed under O.IX, R.6, C.P.C. before the same court, therefore, defendant could not seek setting aside of ex parte proceeding by application under O.IX, R.13, C.P.C.---Defendant could seek setting aside of ex parte decree either through filing application under O.IX, R.13, C.P.C. or by preferring appeal under S.96, C.P.C.---Under Art.164 of the Limitation Act, 1908 limitation for filing application under O.IX, R.13, C.P.C. was 30 days---Article 164 of the Limitation Act, 1908 was divisible in two parts---First part postulated that the period of limitation was 30 days from the decree while the second part provided that if summons was not duly served then from the date of knowledge the period of thirty days shall be computed---Word "summons" in Art.164 of the Limitation Act, 1908 referred to the first summons issued to defendant after institution of suit---Defendant would be entitled to the benefit of reckoning the limitation of 30 days from his knowledge of decree where he established that summons was not duly served---Where summons was duly served, limitation would run from date of decree---Summon , in the present case, was duly served upon defendant---Defendant filed written statement but disappeared subsequently and filed application for setting aside ex parte decree after four months and twenty days without sufficient cause---Court could not grant free passage of time to the people who were not vigilant about their rights---Law of limitation had to be construed strictly---Delay of each day had to be explained by a party---Valuable rights accrued to the other party by lapse of time---Defendant was barred from challenging the merits of ex parte decree---Ex parte decree had the same effect as a contested decree with the exception that the modes and mechanism for the setting aside of such decree may be more---Revision was dismissed.
PLD 1981 SC 21 ref.
2005 YLR 1096; Muhammad Hussain and others v. Settlement and Rehabilitation Commisison and others 1975 SCMR 304 and Ministry of Defense v. Javed and Co. 2005 CLC 1004 rel.
(b) Limitation Act (IX of 1908)---
----Art. 164---Word "summons"---Scope---Word 'summons' in Art.164 of the Limitation Act, 1908 referred to the first summons issued to defendant after institution of suit. [p. 63] D
Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1962 Lah. 456 rel.
(c) Limitation Act (IX of 1908)---
----Art. 164---Scope of Art.164, Limitation Act, 1908---Under Art.164 of the Limitation Act, 1908 defendant would be entitled to the benefit of reckoning the limitation of 30 days from his knowledge of decree where he established that summons was not duly served---Where summons was duly served, limitation would run from date of decree. [p. 63] E
Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1962 Lah. 456 rel.
(d) Civil Procedure Code (V of 1908)---
----O. IX, R.13---Ex parte decree---Setting aside of---Principles---Ex parte decree had the same effect as a contested decree with the exception that the modes and mechanism for the setting aside of such decree may be more.
Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 rel.
Shad Ali Khan Khattak for Petitioner
Muhammad Ibrahim Khan for Respondent.
Date of hearing: 3rd June, 2014.
JUDGMENT
MUHAMMAD DAUD KHAN, J.---Through instant revision petition the petitioner assailed the order dated 26-2-2013 of learned Civil Judge-II, Takht-e-Nasrati, Karak (Trial Court) and that of order dated 4-7-2013 of learned Additional District Judge, Takht-e-Nasrati, Karak, whereby application for setting aside ex parte decree dated 30-5-2012, was dismissed by both the Courts below.
2. Brief facts of the case are that Afzal Khan respondent No.1 filed a suit for declaration along with permanent injunction against the petitioner and remaining respondents on the ground that he is owner in possession of the suit house, on the basis of sale deed dated 3-6-2008, as alternative relief he also sought recovery of Rs.500000.
3. On notice the defendant Khyal Badshah and remaining other respondents/ defendants appeared and contested the suit by submitting their written statements. On divergent pleading of the parties, the learned trial court framed issues and parties submitted their list of witnesses. Thereafter, when the case was fixed for evidence, the petitioner absented himself and thereby proceeded ex parte on 18-12-2012. However, remaining respondents/ defendants adduced their evidence on conclusion of trial the suit of respondent/ plaintiff was decreed to the extent of Rs.5,00,000, vide judgment and decree dated 30-5-2012.
4. On 20-10-2012, the petitioner made an application for setting aside ex parte proceedings as well as ex parte decree passed against him by the learned trial Court. Respondent No.1 contested the same by submitting replication. The learned trial court after hearing learned counsel for the parties, dismissed the application vide its order dated 26-2-2013 and the appeal filed against the same order was also dismissed by the learned appellate Court, vide its judgment dated 4-7-2013. Feeling aggrieved the petitioner preferred instant revision petition.
5. Mr. Shad Ali Khan Khattak, learned counsel for the petitioner contended that both the subordinate courts below dismissed the application of petitioner on the sole ground of it being barred by time, whereas limitation in such a case runs in terms of Article 181 of the Limitation Act. The learned counsel mainly relied on the case-law PLD 1981 SC 21. He further contended that the petitioner had not only prayed for setting aside ex parte decree dated 30-5-2012, but has also prayed for setting aside ex parte proceedings dated 18-2-2012, for which, since no period of limitation is prescribed and residuary Article 181 of the Limitation Act, shall be attracted and the period for filing such an application would be three years.
6. Muhammad Ibrahim Khan learned counsel for respondent/ plaintiff strongly opposed the arguments of petitioner's counsel and supported concurrent judgments of both the courts below.
7. I have heard considered the arguments of learned counsel for the parties and with their valuable assistance record perused.
8. In the instant case there were four other defendants along with petitioner/defendant. The other defendants have actively participated in the proceedings, whereas the only petitioner/defendant casually used to appear before the trial court and on 18-2-2012, when the case was fixed for evidence, he usually did not appear and was proceeded ex parte under Rule 6(a) of Order IX, C.P.C. As there were four other defendants, who were appearing regularly, therefore proceedings between the respondent/plaintiff and respondents/ defendants were continued. After conclusion of trial, the learned trial court, vide its judgment and decree dated 30-5-2012 decreed the suit of plaintiff / respondent to the tune of Rs.500000 , against petitioner/ defendant.
9. Ex parte proceedings against defendant dated 18-2-2012 was taken under Order IX, Rule 6 C.P.C. and a remedy against such order was to be provided under Rule 7 of Order IX, C.P.C., as the Limitation Act, 1908 does not provide any limitation for filing an application under Rule 7. As a matter of fact Rule 7 itself governs the period during which an application for setting aside ex parte proceedings can be moved for convenient. Rule 7 or Order IX, C.P.C. is reproduced as under:--
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.---Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
According to this Rule an application can only be filed by the defendant when the case is adjourned ex parte and he files an application "at or before such hearing". It means that if this stage is crossed and an ex-parte decree is passed, then the defendant is precluded from questioning an order passed under Rule 6, Order IX, C.P.C., before the same Court, therefore, the prayer made by the petitioner in his application under Order IX, Rule 13, C.P.C., for setting aside ex parte proceedings dated 18-2-2012 is not maintainable.
10. For getting an ex parte decree set aside, the defendant has an option by two ways, one by filing an application under Order IX Rule 13 C.P.C. and second by preferring an appeal under section 96 C.P.C. For filing an application under Order IX Rule 13 C.P.C., the limitation governs under Article 164 of the Limitation Act. This Article provides a period of 30 days for filing such application. For ready reference Article 164 of the Limitation Act, is reproduced herein below.
Description of Suit
Period of Limitation
Time from which period begins to run.
164, By a defendant, for an order to set aside a decree passed ex parte.
Thirty Days.
The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.
11. The above Article reveals that it is divisible in two parts. First part postulates the period of Limitation is 30 days from the date of decree and second part provides that if summons was not duly served then from the date of knowledge, the period of thirty days shall be computed.
The word "summons" used in Article 164 refers to the first summons issued to the defendant after institution of the suit and that the defendant under second part of the said Article would only be benefited if he is able to prove that the first summons was not duly served and then he would be entitled to reckon the period of 30 days from his knowledge of the decree. Otherwise, if the initial summons was duly served, then the date should be reckoned from the date of the decree. Wisdom can be taken from principle laid down in the case "Mian Kamal Din v. Malik Muhammad Bashir and others (PLD 1962 Lahore 456).
12. In the instant case, after institution of suit, the summons were duly served upon defendant/petitioner, he was duly represented by his counsel during trial, submitted written statement and list of witnesses and during recording evidence when he realized proving the case against him, he deliberately disappeared before the Court. The defendant proceeded ex parte on 18-2-2012 and later on after conclusion of trial, ex parte decree against him was passed on 30-5-2012. While application for setting aside the ex parte decree was made on 20-10-2012 after four months and 20 days without justifying any plausible reason and sufficient cause.
13. A person against whom an adverse order is passed and implementing and affecting his interest, yet he does not take any step to get it set aside within prescribed period of Limitation, he cannot claim exemption of limitation after expiry of period of Limitation. The Court cannot grant a free hand or free passage of time to such people who are not vigilant about their rights. Guidance can be taken from 2005 YLR 1096. It is settled principle of law that the object of law of Limitation is to be construed strictly, coupled with the condition that each day of his delay is to be explained by the party concern, because in a civil matter valuable right accrues to the other side by lapse of time and it is necessary that each delay should be satisfactorily explained.
14. The conduct of the petitioner/defendant during proceeding of trial and filing of time barred application is rightly precluded from challenging the merits of the ex parte decree dated 30/05/2012. Reliance can be placed on case title "Muhammad Hussain and others v. Settlement and Rehabilitation Commission and others" (1975 SCMR 304) and Ministry of Defense v. Javed and Co." (2005 CLC 1004 Peshawar).
15. As far as ex parte decree is concerned, it has same legal effect and as good as contested decree with the exception that the modes and mechanism for setting aside such decree; may be more in any case. The Hon'ble Supreme Court of Pakistan reiterated this view in recent case titled "Hazratullah and others v. Rahim Gul and others" (PLD 2014 SC 380) wherein it is held that:--
An ex-parte decree is valid, having same legal effects as contested decree, with the exception that mode and mechanism for setting such decree may be more; in any case."
16. I have gone through the case "Messrs Rehman Weaving Factory (Regd), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21), relied upon by the learned counsel for the petitioner is not applicable to the instant case. The petitioner's case falls in the first part of Article 164 of the Limitations Act, while the referred judgment is related to a second part. Their lordships in the Supreme Court dilated upon the word "Summons" used in Article 164 of the Limitation Act, so as include in some notices required to be issued in certain eventualities, thus the referred case does not advance the case of petitioner.
17. In these circumstances, I do not incline to take view different from the one taken by the both learned subordinate Courts. Resultantly, there is no merit in the petition, which is dismissed. No order to costs.
ARK/387/P Revision dismissed
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