1992 PLP 25 (CLC)

(iii) that the ex part e decree rested on fraud as a counter‑suit in respect of the same property between the same parties was already in progress before the Court and the decree‑holders deliberately withheld the information of institution of the suit and manoeuvred ex parte proceedings against their opponents. Reference was made to P L J 1981 AJK 131, P L D 1975 AJ&K 114, P L D 1983 AJ&K 3, 1986 CLC 2963, P L D 1969 Lahore 1039, P L D 1975 Lahore 707, PLD 1964 SC 97 and P L D 1970 Lahore

6. Mr. Arshad Gillani, the learned counsel for the respondents supported the impugned order and contended that the appellants failed to show sufficient cause for condonation of delay as required under the provisions of Section 5 of the Limitation Act. Reliance was placed on P L D 1989 SC (AJK) 561, 1978 S C M R 367, P L D 1967 AJ&K

47. P L D 1966 Lah. 542, P L D 1966 BJ 14, P L D 1971 Lah. 332, P L ,D 1984 SC (AJ&K) 51, P L D 1984 SC (AJ&K) 104 and P L D 1983 SC (AJ&K) 25.

3. When an ex parte decree is passed, the judgment‑debtor may seek one of the remedies: (i) by moving an application under Rule 13 of Order 9, Civil Procedure Code, in the Court which passed the decree, for an order to set it aside; (ii) by preferring an appeal from the decree; (iii) by seeking a review; or (iv) by instituting a suit on the ground of fraud. All the remedies are concurrently open to the defendant (judgment‑debtor). In the instant case, the defendants/appellants preferred appeal before the District Judge. Limitation for the appeal was 30 days from the date of the decree. Thus, prima facie, the appeal was beyond time. In such situation, it was enjoined upon the appellants to, show sufficient cause for condonation of the delay.

4. Ordinarily, delay is condoned on an application under section 5 of the Limitation Act, on the satisfaction of sufficient cause, thereby showing that the delay occasioned on account of restraint or prohibition by the factors beyond the control of the party. In order to seek condonation of delay, a formal application under section 5 was necessary. In exceptional circumstances, when no formal application under section 5 is moved but the delay is sought to be condoned for reasons described in the memorandum of appeal, it is permissible to consider such explanation amounting to sufficient cause for the purpose of condonation of delay. The rules of procedure are primarily framed to advance the cause of justice. Strict adherence to the requirement of formal application is not necessary when the omission to formally move, according to such rules, is not mala fide or deliberate. Thus, when no formal application under section 5 is moved but in the memorandum of appeal, it is well explained as to how the appeal is presented beyond time, it is permissible to look into such circumstances. In case the Court is satisfied from the circumstances described in the memorandum of appeal that such circumstances constituted sufficient cause, Court is empowered to condone the delay in suitable cases.

5. In present case, the learned District Judge agreed that the limitation started running from the date of knowledge of the defendants and he also allowed condonation of the period spent in prosecuting the. revision petition before this Court, but despite that, the appeal was found beyond the time of 30 days. The appellants were unable to satisfy the Court for such delay.

6. To meet the challenge of limitation, Mr. T.H. Tariq argued that the ex parte decree was void ab initio, as such the question of limitation was immaterial in this case. The authorities relied upon by the learned counsel in support of the contention were not helpful to him as in all those cases, the impugned orders were declared void for want of jurisdiction. There is no cavil with the proposition that when an order is void ab initio, limitation loses its importance. In present case, the ex parte decree cannot be construed as void ab initio as it was not passed by a Court having no jurisdiction in the matter. Conversely, the Court had the jurisdiction but the decree was passed in derogation to the rules of procedure, as such it was a voidable decree. A voidable decree carries its effect unless and until it is annulled in due course of law. It is, therefore, wrong to suggest that the decree being void ab initio, was not subject to limitation in an appeal against it.

7. A perusal of the record shows that the suit of the plaintiffs respondents was instituted in the Cnurt of Sub‑Judge, Hattian, on May 30, 1978. The counter‑suit of Ali Haider Shah and Karim Haider Shah for possession of the suit land was instituted on October 3, 1978. In the counter suit, the defendants, who were plaintiffs in the matter under consideration, appeared in the Court on November 4, 1978. They presented the written statement on May 26, 1979. It is evident from the record that the trial Court was not apprised of institution of the counter‑suit. Thus, Faqir, Raja and Mst. Soni deliberately withheld the information of institution of their suit in respect of the land in question in the same Court. However, on the report of the process‑server that defendants Nos.1 and 2 had abandoned their residence, substituted service was ordered through proclamation in a newspaper. The proclamation was issued for appearance of the defendants of November 25, 1978. None of the defendants appeared on that date but the case was adjourned to December 6 as the presiding officer was on leave. On that date, again, none of the defendants was present and the case was adjourned to April 22, 1979 when ex parte was ordered against defendants Nos.l and

2. Defendants Nos.3 and 4 were reported to have disappeared from the village. Substituted service was ordered and the case was adjourned to September 22, 1979. On that date, ex parte proceedings were ordered against defendants Nos.3 and

4. The following points emerge from the aforesaid position: (i) The plaintiffs‑respondents committed a fraud on the Court by withholding the information of institution of their suit and also by manoeuvring false reports of the process‑server, suppressing thereby the whereabouts of the defendants; and (ii) illegal procedure was adopted by the trial Court in making ex parte order resulting in ex parte decree against the defendants‑appellants.

8. To deal with the point of fraud, it is evident from the record that both the suits by the opposite‑parties were instituted in the same Court. The parties and their counsel prosecuted their suits on every. date of hearing. Thus, it was in the knowledge of the plaintiffs‑respondents that the defendants‑appellants were definitely residing in their ordinary place of residence and were appearing in the Court no the dates of hearing in their suit. Likewise,‑ the plaintiffs‑respondents withheld the information of institution of their suit during their appearance while defending the counter‑suit. They presented their written statement in the counter‑suit but it contained no averment relating to institution of their suit. This was a deliberate and well‑planned overt act of the plaintiffs‑respondents. Thus, deception was patently established in the matter.

9. Ex parte order against a defendant is made when the summons is duly served and the defendant fails to appear in the Court on the day when the suit is called on for hearing. The rules relating to service of summons are prescribed under Order V of the Code. The modalities of service of summons on defendant are contemplated under various rules, Rule 12 postulates that summons shall be served on the defendant in person unless an ‑agent was empowered by him to accept the service. In such case, service on the agent of the defendant was sufficient. Where the defendant cannot be found and has no agent to accept the service of summons, rule 15 provides that service may be made on any adult male member of the family of the defendant who reside with him. Where the defendant or his agent or male member of the family refuses to sign the acknowledgment or cannot be found despite due and reasonable diligence, then service has to be effected by affixing copy of the summons on the outer door or other conspicuous part of the house in which the defendant ordinarily resided or carried on business or personally worked for gain. In absence of all the aforesaid factors, service can be made by affixing a copy of the summons on some conspicuous place in the Court‑house or the house in which the defendant was known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court may think fit. In present case, the summons was issued only once. The process- server made the report that the defendants had deserted their place of residence and their whereabouts were unknown. On such report, substituted service was directed through proclamation published in a newspaper. It is evident that the presiding officer failed to advert to different modes of due service contemplated by law and resorted to the ultimate method of substituted service through proclamation published in a newspaper. Thus, it was a cleat case of derogation to the prescribed rules of affecting due service of summons on the defendant.

10. The other aspect of the illegality committed by the presiding officer is that the defendants were not proceeded against ex parte on the day on which they were directed to appear before the Court. The rule of law is that where the defendant, when duly served, failed to appear in the Court when the case is called on for hearing, the Court may proceed ex parte against him on that day. The Court cannot proceed ex perte against the defendant on the day for which he was not duly served to appear personally or through counsel. In present case, as noticed earlier, defendants Nos.1 and 2 were served through proclamation in a newapaper to appear in the Court on November 25, 1978. No ex parte order was made against them on that day. Rather, the ex parte order was made on April 22, 1979. The defendants were not served to appear on that day, thus, the ex parte order made against defendants Nos.1 and 2 was obviously illegal. Likewise, in the case of defendants Nos.3 and 4, they were served through substituted service by proclamation published in a newapaper to appear in the Court on September 22, 1979. The proclamation was published but it was not received in the office. The defendants were not proceeded against ex parte and the case was adjourned to October

21. They were proceeded against ex parte on October 21 instead of September

22. As they were not duly served to appear in the Court on October 21, the ex parte order made against them on that. day was unlawful. Thus the ex parte orders made against the defendants on the dates for which they were not duly served to appear before the Court, were quite unlawful, as such unsustainable.

11. The proposition received consideration of the Supreme Court of Pakistan in Muhammad Swaleh's case, P L D 1964 SC 97, Mr. Justice (late) B.Z. Kaikaus, an eminent jurist, resolved the controversy as: "As rule 1 of Order IX will show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, rule 2 provides that if a party fails to appear on 4the day to which the hearing of the suit is adjourned', the Court may proceed to pass orders in accordance with Order IX. Order IX, rule 6 and Order XVII, rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course `adjourned' means adjourned by the Court. We would hold that the order passed on the 22nd April, 1960, directing ex parte proceedings was not a valid order. It is not necessary however to decide whether the order of the 22nd April, 1960, and the ex parte decree of the 27th.April, 1960, are wholly void for there is no doubt as to their being not in accordance with law and this is a sufficient ground for their being set aside." In that case, the proceedings were adjourned for evidence of plaintiff to April 21, 1960. That day was subsequently declared a holiday and the Court was closed. The file was put up before the Sub‑Judge on 22nd of April. On that day, the counsel for the plaintiffs was present. The defendants and their counsel were absent. The Sub‑Judge proceeded ex parte against the defendants and adjourned the case for ex parte evidence of the plaintiffs. On April 27, to which the case was adjourned, again, nobody appeared for the defendants. One of the witnesses of the plaintiffs was examined and ex parte decree was passed the same day. On July 29, the defendants moved an application under section 151, C.P.C., for recalling the ex parte decree and the ex parte order passed on April

22. The cause shown for setting aside ex parte decree was the mistake of the junior counsel who mentioned the name of wrong Court in his diary where the suit was previously pending. The plaintiff‑decree‑holders opposed the application, among others, on the ground of limitation. The Sub‑Judge granted the application but the order was reversed by the learned Judge in the High Court. The finding of the High Court was reversed in the Supreme Court in the aforesaid manner.

12. The dictum of the Supreme Court provides ample guidance to hold that ex parte orders passed against the defendants on April 22, 1979 and October 21, 1979 were not in accordance with law; as such the same are liable to be set aside.

13. The aforesaid reasons lead to the inference that the trial Court proceeded against the defendants illegally and its action resulting in ex parte decree was quite unlawful.

14. It is noticed that the ex parte proceedings resulting in ex parte decree were perverse, preposterous and illegal. It is, therefore, enjoined upon this Court to reverse the illegal action instead of allowing it to perpetuate. This is quite expedient as the counter‑suit for possession is still in progress and in case the plaintiffs in that suit, who are defendants‑appellants in the present case, ultimately succeed in securing a decree in their favour, that decree shall obviously be in conflict with the decree in dispute. The disastrous results are quite evident. It is, therefore, quite in the interest of justice to demolish the illegal ex parte decree. 14‑A. The order of the District Judge is subject to second appeal under the provisions of section 100 of the Civil Procedure Code. But having seen that the ex parte decree cannot be annulled for want of limitation, it is permissible to reverse it in exercise of revisional jurisdiction of this Court. The revisional jurisdiction, being very wide and comprehensive, enables this Court to put an end to an illegal decree. Section 115 of the Code, as in force in Azad Jammu and Kashmir, empowers this Court to revise an order of the subordinate Court when it appears that the subordinate Court:‑‑ (a) exercised jurisdiction not vested in it by law; or (b) failed to exercise jurisdiction so vested; or (c) acted in exercise of jurisdiction illegally or with material irregularity; or (d) caused failure of justice. These provisions, coupled with the provisions of section 35 of the Courts and Laws Code Act, empower this Court to rectify an error, mistake, illegality or material irregularity resulting in miscarriage of justice. These powers may be invoked on the application of an aggrieved party or suo motu, irrespective of limitation. The view finds support from Muhammad Siddiq's case, 1986 CLC 2963.

15. The aforesaid analysis of the proposition leads to a conclusion favourable to the appellants. The appeal is treated as revision. The orders and decrees of the District Judge and the Sub‑Judge are hereby set aside and the case is remanded to the Sub‑Judge to proceed with it from the stage of abovementioned illegality. It is further ordered that both the suits being in respect of common property and between common parties, are hereby consolidated and the same shall be disposed of simultaneously. The parties are directed to appear before the subordinate Court on October 28, 1991. No order as to costs. A.A./487/H.CA. Case remanded.