1988 PLP 806 (CLC)

Dhundha v. The Punjab Province (Now Province of West Pakistan) P L D 1960 Lah. 786; Oil and Gas Development Corporation v. Lt.‑Col. Shujauddin Ahmed P L D 1970 Kar. 332 and Province of Sind through Deputy Commissioner, Hyderabad and another v. Muhammad Hashim P L D 1971 Kar. 793 rel. Kh. Muhammad Farooq for Petitioners. Saghir Ahmad Qadri for Respondents. Date of hearing: 6th February, 1988. This and also the connected Civil Revision No. 107 of 1981, both arise out of the judgment dated 30‑11‑1980 passed by Mr. Zaheer Ahmad Khan Yousafi, the then learned District Judge, Rawalpindi, to dismiss two civil appeals bearing respective Nos. 326 and 327 of 1980 maintained before him by Haji Fazal Muhammad, predecessor of the petitioners, to respectively challenge an ex parte decree, dated 27‑3‑1976 passed against him in a suit filed by the first four respondents and the trial Court's order dated 16‑3‑1980 rejecting his application for setting aside of the ex parte decree. Since they arise out of the same suit, therefore, for reasons of convenience they have been heard together and by this judgment I intend to decide both the civil revisions.

2. The facts giving rise to these civil revisions are briefly that the first four respondents herein had filed a suit on 21‑11‑1973 against Haji Fazal Muhammad (since deceased) for declaration to the effect that a registered sale‑deed, dated 5‑9‑1973, relating to shop No. 77/ 114 situated in Kassera Bazar, Rawalpindi, executed in his favour by Muhammad Akbar (their father) is illegal, ineffective and void against their rights as the legal heirs of their deceased mother Mst. Ashraf Jan and they continue to be its exclusive owners. By way of consequential relief, they also prayed for the defendant being restrained from alienating the shop. Precisely, their case was that the shop in dispute had been given ‑to their deceased mother in lieu of dower and was held by Masood Javed respondent No. 5, a son of the defendant, as a tenant under her and taking advantage of a dispute between the plaintiffs and their father Malik Muhammad Akbar, the defendant had hastened to get a sale‑deed executed from him for a nominal amount of Rs.10,000 due to his old age and insanity. However, Muhammad Akbar was not impleaded by the plaintiffs as a party to the suit and although claim to the title for the shop in dispute was specifically made by the plaintiffs on account of their mother's dower, yet, they did not append any document with their plaint in support of their claim. Records of the Court below have been requisitioned which show that the defendant was summoned and the suit had been fixed for 14‑3‑1974 for submission of the written‑statement when he put in an application under Order XI, Rule 14 of the C.P.C. for the plaintiff being called upon to submit the documents relied upon in the plaint. Plaintiffs were required to submit a reply to the application on 4‑4‑1974 whereafter a number of adjournments were granted for the filing of the reply but none appears to have been filed and the matter had been fixed for 21‑11‑1975 for hearing of arguments when the suit itself came to be dismissed under Order IX, Rule 13 of the C.P.C. due to non‑prosecution but on the basis of an application, dated 25‑11‑1975, praying for its being restored for the reason that at the time of call the plaintiff had gone to fetch the counsel, it was restored subsequently on 9‑12‑1975 and notice was ordered to be given to the defendant for 12‑1‑1976. This day happened to be declared a public holiday and the file was taken up on 14‑1‑1976 and two orders appear to be written in the hand probably of the Reader on that date, both signed by the Presiding Officer, in the first one recorded in the earlier part of the day at 10‑17 a.m. It is mentioned that the defendant is present with his counsel but none has appeared for the plaintiffs, it may come up again after waiting. In the second order it is written, called again, now counsel for the parties have appeared, to come up for arguments on 9‑2‑1976. On this date Presiding Officer, happened to be on leave and Reader of the Court fixed the date 27‑3‑1976 for arguments. On this date the Civil Judge wrote, "plaintiffs' counsel is present, none has appeared for the defendant despite several calls. Today is Saturday and Court time is about to run out. Ex parte proceedings are taken and the suit of the plaintiffs is decreed ex parte with costs, without recording any evidence". An application dated 5‑10‑1977 was filed by the defendant under Order IX, Rule 13 of the C . P . C . read with section 151 thereof to have the ex parte decree set aside on the ground that no notice had been served upon him after restoration of the suit subsequent to its dismissal in default. Plaintiffs contested the application which was set down to be tried on two issues relating respectively to the sufficiency of cause for setting aside the ex parte decree and the limitation. Parties led their evidence wherein the plaintiffs got proved the service of notice issued for the defendant's appearance before the Court on 12‑1‑1976 to have been effected on him by the process‑server examined as R.W.1. There, however, was no corroborating evidence led in this behalf by producing any one who may have seen the service alleged to be thus made. In rebuttal, in addition to his own statement got recorded by the defendant as A.W.1 denying the alleged service of notice on him and also his appearance in Court on the dates immediately preceding the passing of ex parte decree, he also got examined Hafiz S.A. Rehman, Advocate as A.W.2 for refuting the correctness of nothings with regard to his presence on the said dates. The Civil Judge thought that there was presumption of truth attached to the statement of the process‑server and accepted the same to come to the conclusion that the notice had been duly served upon the defendant, despite the fact that in its return there was not mentioned the name of any person who may have either identified the defendant or witnessed the service to meet the requirements of Order V, Rule 18 of the C.P.C. and, with the finding also that the counsel for the defendant had twice thereafter appeared in the Court, proceeded to assume knowledge in the defendant about the restoration of the suit and held the application to be barred by time, without reference to any particular provision of the law. He disbelieved the assertion of the defendant with regard to absence of his service of notice to hold it to have been duly effected on him and concluded also that there was not made out any sufficient cause for setting aside the ex parte‑decree. Therein, he did not advert his attention to the defect resulting from the absence of any person as having either identified the defendant or witnessed the report of alleged service made by the process‑server and did not attend even to the fact that on the immediately preceding date 9‑2‑1976 the Reader had put the file off to 27‑3‑1976 for hearing of arguments without even purporting to comply with the provisions of Order XVI1, rule 5 of the C.P.C. and still an ex parte‑decree was passed on that date without any formality for either securing the attendance of the defendant or recording any evidence and all this despite the fact that only a petition had been fixed for hearing arguments and the suit itself seas not fixed for any proceeding being taken on that date. By his order, dated 16‑3‑1980 the civil Judge rejected the application by deciding both the issues against the defendant who thereagainst maintained Civil Appeal No. 327 of 1980 on 18‑4‑1980 and also simultaneously brought the other Civil Appeal No. 326 of 1980 against the ex parte‑decree itself in the District Court at Rawalpindi.

3. Both the appeals were heard together by the learned District Judge who upheld the view of the Civil Judge that due service of the defendant had been made for 12‑1‑1976 whereafter his counsel had twice appeared in the suit on 14‑1‑1976 and 9‑2‑1976 but did not advert his attention to the note of adjournment recorded by the Reader of the Court to put off the file of the suit to 27‑3‑1976. By his judgment dated 30‑11‑1980, the District Judge held the application for the setting aside of the ex parte decree to be barred by time and liable to be rejected as such and even he did not mention any provision of law in support of his conclusion to accordingly dismissed Civil Appeal No.327 of 1980 by also simultaneously dismissing the other Appeal No. 326 of 1980 as being hopelessly barred by time. Curiously enough, while thus dismissing both the appeals by his judgment dated 30‑11‑1980, the District Judge required the plaintiff‑respondents to deposit in his Court on or before 8‑1‑1981 a sum of Rs.10,000 for being paid to the defendant because this amount was admitted by their counsel to have been received by their father Malik Muhammad Akbar from the defendant and added the condition also that, in the event of default in making such a deposit, both the appeals shall stand accepted.

4. It is argued in support of these Civil Revisions that the two Courts below have acted illegally in the exercise of their respective jurisdictions in rejecting the prayer for setting aside of ex parte‑decree as being barred by time without referring to any law and since Article 164 of the First Schedule to the Limitation Act could not apply to cases of service or non‑service of notices issued at subsequent s' ages of the suit, therefore, as has been held in Messrs Rehman GS‑aving Factory (Reg) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 S C 21, the defendant's application fell under the 3 years' limitation provided by Article 181 thereof. It has also been submitted with some vehemence that the ex parte‑decree was itself void on account of its being violative of the rule of law laid down in Shamroz Khan and another v. Muhammad Amin and others PLD 1978 S C 89 inasmuch as the discretion vested in the trial Court under Rule 6(1) of Order XI of the C.P.C. had not been exercised Judicially into proceeding to pass the ex parte‑decree without recording any evidence, without either attending to the other course open to it for passing the ex parte‑decree only after recording evidence and on its basis or even assigning any reason for acting in the particular manner that it has acted so that there is no indication that the trial Judge could be aware of the vesting in him of a discretion on the point and therein is not manifested any consciousness of the extent of power available to be exercised and, hence, the ex parte‑decree so passed is liable to be interfered with in exercise of revisional jurisdiction, as held in Dhundha v. The Punjab Province (Now Province of West Pakistan) P L D 1960 Lah.

786. As regards the dismissal of Civil Appeal No.326 of 1980 by the District Judge for the sole reason that it is barred by time, it is contended that therein the benefits of bona fide pursuing by the defendant of his application under Order IX, Rule 13 of the C.P.C. and the other appeal arisen out of the order of rejection of that application have been wrongfully denied despite these considerations constituting sufficient cause within the scope of section 5 of the Limitation Act.

5. In reply, learned counsel for respondents has argued that even though neither of the two Courts below has referred to any particular provision of the Limitation Act to hold the defendant's application to be barred by time, yet, they have concurrently held on the basis of evidence led by the parties that the defendant was duly served with notice for his appearance in the trial Court on 12‑1‑1976 which findings relate to a question of pure fact and have, therefore, to prevail on account of absence of any jurisdictional error involved therein and since the defendant had been actually appearing in that Court thereafter personally as well as through his counsel, therefore, the application for setting aside of ex parte decree had to be made within 30 days of the passing of that decree, as contemplated in the first part of the entry appearing in the third column against Article 164 of the First Schedule of the Limitation Act so that the date of his knowledge thereabout was wholly immaterial in this context and the limitation had to be reckoned from the date of the decree itself. There is no force in this contention inasmuch as it has already been repelled in the afore‑cited Supreme Court judgment of 19811 holding that .the expression 'due service of summons' in the first. part of the entry appearing in the third column of Article 164 (ibid) has reference to the summons issued for the first date and does not refer to notice issued at later stages of a suit. As against it, the submissions made on behalf of the petitioners appear to have merit because an application maintained for setting aside of an ex parte decree on the plea of want of service subsequent to restoration of suit would seem to fall under Article 181 to be governed` by a limitation of 3 years with the accrual of right to apply being provided as the sine qua non. A precedent bearing close similarity to the situation prevailing herein stands provided in Syed Qasim Shah v. Deputy Commissioner, Karachi District and another P L D 1976 Quetta

42. E Moreover, since the ex parte decree had been passed in oblivion of the rule of law laid down by the Supreme Court in the afore‑cited case of Shamroz Khan and was void on that account, therefore, there was no question of the prayer relating to recall of such a decree being governed by any particular period of limitation and there was no reason why the application for its recall may not have been considered as the one relatable to the inherent power of the Court, under section 151 of the C.P.C. on account of its being against the law, as held to be permissible in Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97 and since law rather than foreclosing cases on mere technicalities, favours adjudication of disputes on merits and the benefit of the rule embodied in section 14 of the Limitation Act could also well be admissibly to the defendant to bring his appeal against the ex parte decree within limitation on account of exclusion 'of the period consumed in pursuing the application for the recall of the ex parte decree which was even void but this defect was not adverted to at all, therefore, his appeal against the decree was entitled to be accepted on the basis of law laid down by this Court in the case of Dhundha in 19601 and its disregard by the Courts below has to entail interference in revision, as held in Oil and Gas Development Corporation v. Lt.‑Col. Shujauddin Ahmed PLD 1970 Kar. 332 and Province of Sind through) Deputy Commissioner, Hyderabad and another v. Muhammad Hashim PLD 1971 Kar. 793 for the ex parte‑decree being set aside.

6. Upshot of the foregoing is that Civil Revision No.106 of 1981 is accepted and reversing the judgment passed in the appeal below on 30‑11‑1980, the ex parte‑decree passed by the trial Court on 27‑3‑1976 is set aside with the consequence that the trial Court is directed to proceed with the suit from the stage on which it was on 27‑3‑1976. With the thus, setting aside of the ex parte‑decree complained about, the other Civil Revision No.107 of 1981 has been rendered infructuous and the same is disposed of accordingly by leaving the parties to bear their own costs in both the Civil Revision. A.A./W.23/L Revision accepted.