2013 PLP 402 (MLD)

MIAN FASIH-UL-MULK, J.

This revision petition as well as the connected Civil Revisions Nos.1800 and 1901 of 2010 are directed against the impugned orders dated 15-7-2010 of Civil Judge, Takht-bhai and orders dated 17-2-2010 of learned Additional District Judge, Takht-bhai whereby application for setting aside the ex parte order on the application of petitioner for setting aside the ex parte decree was dismissed being barred by time. All the three petitions are having similar questions for determination, hence the same shall stand disposed of through this single Judgment in Civil Revision No.1799 of 2010.

2. Petitioner, being a police officer, posted as S.H.O. Police Station Lundkhwar in the year, 2000 had raided the house of Sher Nawaz (respondent in this petition) for the arrest of accused Saeed, a close relative of respondent, involved in a murder case vide F.I.R. No.534. During the alleged raid, petitioner recovered a Kalashnikov along with ammunition from the possession of Nizam (respondent in the connected Civil Revision No.1800 of 2010) and a 30 bore pistol from the possession of Sher Nawaz (respondent in this petition). The same were shown to be unlicensed arms and F.I.Rs. Nos.535 and 536 were respectively registered against them on 5-9-2000 under Sections 13 Arms Ordinance read section 4 of Suppression of Terrorist Act. Respondents submitted applications against the petitioner to the DSP Headquarter, Mardan for conducting an inquiry, which was conducted with the findings that the said two F.I.Rs. were unwarranted and recommended to be cancelled. The cancellation of above F.I.Rs. thus obliged the respondents to file a suit against petitioner for recovery of damages to the tune of Rs.500,000 each. Petitioner contested the suit by filing written statement but thereafter absented himself from appearance. Accordingly, he was placed ex parte and an ex parte decree, as prayed for, was granted in favour of all the three respondents vide judgment and decree dated 27-2-2004 of the trial Court. Petitioner filed an application for setting aside the ex parte decree, which was dismissed in default on 21-2-2006. The subsequent conduct of petitioner reveals that he filed various applications for restoration of his application but finally the same was dismissed vide order dated 17-2-2010 by the trial Court on three grounds:-- (a) the application was beyond the period of 30 days; (b) the conduct of petitioner was irresponsible and based on mala fide; and (c) the reason given in application was not convincing.

3. The appeal of petitioner before the Additional District Judge-I, Takht-bhai also met the same fate vide order dated 15-7-2010; hence instant revision petitions.

4. I have heard arguments of learned counsel for the parties and have also gone through the record.

5. Article 181 deals with

"Application for which no period of limitation is provided else-where in this Schedule or by section 48 of the Code of Civil Procedure, 1908." The restoration application of petitioner was accepted but was again dismissed for non-prosecution on the grounds mentioned in the impugned order. The learned trial Court as well as the Additional District Judge were of the opinion that the prescribed period of limitation for making the restoration application was 30 days and as the application was made beyond time, it was liable to dismissal. Both the Courts below did not enter into the merits and did not record a finding whether there was or was not a sufficient cause for non-appearance in Court on the date the ex parte order was passed.

6. The two important ingredients of a decree are that there should be final expression of adjudication conclusively determining the rights of a party with regard to all or any of the matters in controversy and, secondly, that the expression of the adjudication is made in a suit and not in a miscellaneous proceeding not amounting to a suit. Consequently, if the proceeding does not amount to a suit the final order passed therein shall be an order and not decree. It may be mentioned that certain Articles of the Limitation Act apply to decrees, others to orders and some to both decrees and orders. When the Legislature did not intentionally use the word "order" in Article 164, it must be held that this Article does not govern applications for setting aside an ex parte order. In view of the wording of Article 164, it cannot be laid down that this Article shall be applicable to all the applications falling within the scope of Order IX, Rule 13, C.P.C. The learned counsel for the other side also conceded the above legal proposition and stated that period of limitation for application in question would be three years under Article 181 of Limitation Act and the same has erroneously been held to be not within time.

7. Considering that the learned Courts below have not expressed any opinion on merits, it is desirable to remand the restoration application to the trial Court to pass an order in accordance with law, affording proper opportunity of hearing and producing evidence to the petitioner for his failure to appear before the Court on the date when application for restoration of ex parte decree was fixed for hearing. This opportunity would also help the trial Court to determine the remaining two questions i.e. conduct of petitioner and non-advancing convincing reasons for his failure, if any.

8. The revision petitions are hereby allowed and the impugned orders of the Courts below are set aside and the cases are remanded to trial Court for a fresh decision on the application of petitioner for sitting aside the ex parte decree in accordance with law. No order as to costs. MH/400/P Revisions allowed.