1986 PLP 596 (MLD)

‑‑‑OAX, R.13‑‑Limitation Act (IX of 1908), S.5 & Art.164‑‑Ex parte decree‑‑Setting aside of‑‑Limitation‑‑Starting point‑‑Counsel for petitioner/ defendant appeared in Court and received copy of plaint‑ Petitioner or his counsel failed to appear on date fixed for filing written statement‑‑Suit decreed ex parte against petitioner‑‑Time for filing application to set aside ex parte decree, held, would run from date of decree and not from, date of knowledge, as petitioner was fully aware of institution of case against him and his counsel made appearance before Court and received copy of plaint, when date was fixed for filing of written statement. Mian M. Perwaiz Akhtar for Petitioner. This is petition under Article 9 of the Provisional Constitution Order, 1981, whereby Noor Din petitioner wants this Court to declare the orders, dated 2‑12‑1980, 7‑6‑1981, 29‑7‑1982 and 9‑4‑1983 passed by Civil Judge and the Additional District Judge, to be without lawful authority and of no legal effect.

2. The facts leading up to this petition, in brief, are that Muhammad Shabbir filed a suit for declaration against Noor Din petitioner which was decreed ex parte on 2‑12‑1980. The petitioner/ defendant moved application for setting aside the ex parte decree. This application was dismissed on 7‑6‑1981. Feeling aggrieved, the petitioner/ defendant filed appeal which was entrusted to the learned Additional District Judge, respondent No.1, who dismissed the same on 29-7‑1982. Feeling not satisfied, the petitioner/defendant filed a review application which was also dismissed on 9‑4‑1988, hence this writ petition.

3. Before me, the learned counsel for the petitioner submitted that the petitioner/ defendant having not been served personally, the limitation for filing application to set aside the ex parte decree would run from the date of knowledge and not from the date of decree; that the refusal to set aside the ex parte decree is based on the omission of Courts below to appreciate that the learned counsel for the petitioner/defendant had prepared the written statement on 15‑1‑1981 Annexure 'A', which indicates that the learned counsel was under the bona fide impression that the date fixed for filing the written statement was 15‑1‑1981 and not 12‑12‑1980.

4. I have considered the arguments advanced by the learned counsel with care `and have not been able to persuade myself to agree with him. I find that on 5‑11‑1980. Ch. Muhammad Rafiq Ahmad, Advocate had filed his Vakalatnama on behalf of the petitioner/ defendant. He was given the copy of the plaint and the case was adjourned for 2‑12‑1980 for filing written statement on 2‑12‑1980 neither the petitioner/defendant nor the learned counsel entered appearance and they were ordered to be proceeded against ex parte and the suit filed by the respondents/ plaintiffs was decreed accordingly. On 25‑1‑1981, the petitioner moved application for setting aside the ex parte decree without any application extension of time. In these circumstances, I am of the view that since the petitioner/ defendant was fully aware of the institution of the suit against him and his counsel had actually appeared before the Courts on 5‑11‑1980, therefore, under Article 164 of the Limitation Act, the time for filing application to set aside the ex parte decree would run from the date of decree and not from the date of knowledge. Even otherwise, there is nothing on the file of this petition to show that the petitioner was not personally served. As for the other contention raised by the learned counsel I 'find (as admitted by learned council that the affidavit of the learned counsel to the effect that the date given to him was 15‑1‑1981, has not been produced. The written statement purporting to, have been prepared on 15‑1‑1981 was neither produced before the trial Court nor before the appellate Court.

5. For all these reasons, there being no merit in the writ petition, the same is dismissed in limine. H. B. T. Writ refused.