JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

CR No. 252-B of 2013

JUDGMENT

Date of hearing 03.06.2014 .

Appellant-Petitioner Khiyal Badshah son of

Muhammad Salim, By Shad Ali Khan Khattak
Advocate.

Respondent Afzal Khan and others, BY

Muhammad Ibrahim Khan advocate.

__________________________________________

MUHAMMAD DAUD KHAN, J:- Through instant

revision petitioner the petitioner assailed the order

dated 26.02.2013 of learned Civil Judge-II, Takht-e-

Nasrati, Karak (Trial Court) and that of order dated

04.07.2013 of learned Additional District Judge,

Takht-e-Nasrati, Karak, whereby application for

setting aside ex parte decree dated 30.05.2012, was

dismissed by both the Courts below.

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2. Brief facts of the case are that Afzal Khan

respondent No.1 filed a suit for declaration alongwith

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 03.06.2008, 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 issued 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 30.05.2012.

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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 26.02.213 and the

appeal filed against the same order was also dismissed

by the learned appellate Court, vide its judgment dated

04.07.2013. Feeling aggrieved the petitioner preferred

instant revision petition.

4. Mr. Sahd Ali Khan Khattak, leaned

counsel for the petitioner contended that both the

surbodinate 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

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30.05.2012, but has also prayed for setting aside ex

parte proceedings dated 18.02.2012, 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

augments 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 alongwith 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

18.02.2012, when the case was fixed for evidence, he

usually did not appear and was proceeded ex parte

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under Rule 6(a) of order IX CPC. 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 30.05.2012 decreed the

suit of plaintiff / respondent to the tune of Rs.500000/-

, against petitioner/ defendant.

9. Ex parte proceedings against defendant

dated 18.02.2012 was taken under Order IX Rule 6

CPC and a remedy against such order was to be

provided under Rule 7 of Order IX CPC, 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 govern the period during which an

application for setting aside ex parte proceedings can

be moved for convenient Rule 7 or Order IX CPC is

reproduced as under:-

7. Procedure where defendant appears

on day of adjourned hearing and

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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 direct as to costs or

otherwise, be heard in answer to the

suit as it 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

CPC, before the same Court, therefore, the prayer

made by the petitioner in his application under order

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IX Rule 13 CPC, for setting aside ex parte proceedings

dated 18.02.2012 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 CPC and

second by preferring an appeal under section 96 CPC.

For filing an application under Order IX Rule 13 CPC,

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 Time from which period

Limitation begins to run.

164, By a defendant, Thirty Days. The date of the decree or,

for an order to set where the summons was

aside a decree passed not duly served, when the

ex-parte. applicant has knowledge

of the decree.

11. The above article reveals that it is

divisible in two parts. First part postulates the period

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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 Vs Malik

Muhammad Bashir and other (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

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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 18/02/2012 and later on after

conclusion of trail, ex-parte decree against him was

passed on 30/05/2012. 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

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with the condition that each day of his delay is to be

explained by the party concern, because in civil a

matter valuable right accrues to the other side by laps

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 & other Vs settlement & Rehabilitation

Commission and others” (1975 SCMR 304) and

Ministry of Defense Vs Javed & 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 other Vs

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Rahim Gul and other” (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 “M/S Rehman

Weaving Factory (Regd), Bahawalnagar Vs

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. There 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.

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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

cost.

Announced
03.06.2014

JUDGE