2003 PLP 2208 (YLR)

Law envisages determination of disputes on merits, rather on technicalities. Fayyaz Rasool v. Government of N.-W.F.P. 2001 CLC 1976 fol. Mian Iqbal Hussain for Petitioner. Rashid Ali for Respondents. Date of hearing: 21st April, 2003. Mst. Shagufta petitioner/plaintiff filed suit against Muhammad Rehman and 4 others in the Court of Senior Civil Judge, Swat seeking declaration and perpetual injunction, for the property mentioned in the heading of the plaint. As alternate relief possession of the property and recovery of rent amounting to Rs.10,600 was also sought. The said suit was resisted by respondent/defendant by filing written statement. It was, however, on 1-10-1996 and 26-10-1996 that respondents were placed ex parte and after recording ex parte evidence decree was passed in favour of petitioner on 8-5-1997. Respondent No.1 filed application for setting aside ex parte decree on 14-9-1998, which was allowed and ex parte decree was set aside vide judgment and order dated 14-3-2000. Petitioner filed appeal which was allowed and the case was remanded back vide order dated 26-6-2000. The learned trial Court vide order dated 3-1-2001 again set aside the ex parte decree on payment of costs of Rs.500 against which the petitioner filed appeal, which was dismissed vide order dated 16-2-2001. Being not satisfied with the judgments/orders of the Courts below the petitioner has filed the revision petition in hand.

2. Mian Iqbal Hussain the learned counsel for the petitioner argued that the respondent has failed to give any cogent reason in the application filed for wetting aside the ex parse decree. He had the knowledge of the passage of the ex parte decree but despite that the application was submitted with the delay of one year four months and six days. The same was, therefore, barred by time. The Courts below have failed to appreciate this position. Reliance in this regard was placed on 2000 CLC 980 and AIR 1961 Assam. 47.

3. It was further argued that though application for condonation of delay had been attached with the application, but no convincing reason has been advanced in the said application too. It was the duty of the respondent/applicant to have convinced the Court as to why he was prevented from coming to the Court on the day when ex parte was passed against him which he failed to prove through reliable evidence, hence his application deserved dismissal. The negligence of the attorney, it was contended, if any, was not sufficient reason as enunciated under Order 9, Rule 13, C.P.C. to set aside the ex parte decree.

4. On the other hand Mr. Rashid Ali Advocate representing the respondent argued that application filed by the respondent was within time as given under Article 181 of the Limitation Act.

5. Replying the arguments of the learned counsel for the petitioner that no sufficient reason was given in the application for setting aside the ex parte decree, the learned counsel stated that inadequacy of reasons given in the application was not sufficient ground to deny setting aside the ex parte decree. Reliance in this regard was placed on WAPDA v. Muhammad Hayat Khan and others (PLD 1986 Peshawar 81).

6. The argument of the learned counsel for the petitioner that application submitted by respondents for setting aside the ex parte decree was barred by time has no force at all. Perusal of the record shows that the suit in hand was tiled by the petitioner/plaintiff on 25-10-1994. The respondents/defendants filed their written statement on 4-12-1994. It was on 5-5-1995 that the suit was dismissed for non-prosecution. Petitioner filed application for restoration of the suit on 1-10-1995. The suit was restored vide order dated 8-5-1997 and it was on the same day that ex parte decree was passed in a mechanical manner. Respondent/defendant No.1 on 14-9-1998 filed application for setting aside the ex parte decree which was allowed vide judgment and decree dated 14-3-2000. On appeal filed by the petitioner the case was remanded back vide order dated 26-6-2000. It was again on 3-1-2001 that the learned trial Court set aside the ex parte decree. Petitioner filed appeal which too was dismissed vide order dated 16-2-2001. The question that requires determination in this case is as to whether the application filed by respondent/defendant on 14-9-1998 was barred by time, answer to this question is in negative. Since the respondent had appeared in response to summons issued and contested the suit by filing written statement on 4-12-1994, and thereafter, absented on 5-5-1995, therefore, the period of limitation available to respondent/defendant for filing application for setting aside ex parts decree was 3 years under Article 181 of the Limitation Act and not 30 years. A similar proposition came up for hearing before the august supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21) and before this Court in WAPDA v. Muhammad Hayat Khan and 7 others (PLD 1986 Peshawar 81) and 2001 CLC 1976, in which the august Supreme Court of Pakistan and this Court made it clear that in which cases Article 164 of the Limitation Act would be applicable and which cases would be governed by residuary Article 181 of the Limitation Act. The case in hand falls under the residuary Article 181 of the Limitation Act, which provides 3 years' limitation period for filing application for setting aside the ex parte decree. The application filed by the respondent was, therefore, within time.

7. The contention of the learned counsel for the petitioner that proper reasonings were not given by the respondent in the application for setting aside the ex parts decree and for condonation of delay, therefore, both needed dismissal has no substance. A similar proposition came up for, hearing before this Court in WAPDA v. Muhammad Hayat Khan and 7 others (PLD 1986 Peshawar 81) in which it was held:-- "The inadequacy of sufficient cause should not stand in the way of justice on merits. It should not culminate into the end loss to allow dismissal of suit in default or ex parte decree intact, for the end objective of the Courts is to do full and substantial justice in the cause after allowing due opportunity of hearing to the parties. The adversary, who has obtained an ex parte decree must have faced the rigours and hardship of fruitless litigation, but for that he can be compensated by award of adequate costs. "

8. Keeping in view the dicta laid down by the august Supreme Court of Pakistan as well as this Court I am of the firm view that f the application filed by the respondent for setting aside the ex parte decree was not barred by time and the Courts below have rightly appreciated the legal position. The law even otherwise envisages determination of disputes on merits rather on technicalities, as held in Fayyaz Rasool v. Government of N.-W.F.P. (2001 CLC 1976). I have not been able to find out any material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed with no orders as to costs. S.A.K./819/P Petition dismissed.