1993 PLP 796 (MLD)

(b) Limitation Act (IX of 1908)

S.5 & Art.164

Civil Procedure Code (V of 1908), O.V, R.17

Setting aside ex parte decree

Limitation

Condonation of delay

Essentials

Cause shown for such delay not considered by Appellate Court while rejecting appeal on point of being time-barred

Service of summons by its affixture, on the face of the report itself being defective and Appellate Court having failed to consider question of extension of time and condonation of delay at all, it acted with material irregularity in rejecting appeal being time-barred

Appellant having not been duly served, time began to run when he had knowledge of the decree against him. The cause shown for delay by the appellant was non-service of summons upon him and also lack of knowledge of the proceedings taken against him. Article 164 of the First Schedule to the Limitation Act provides thirty days for setting aside of the ex parte decree. In case of service of summons, the time runs from the date of the decree sought to be set aside and in case the summons were not duly served, the time begins to run, when the applicant has knowledge of the decree. Appellant denied service of summons upon him and filed an appeal well within thirty days from the date of gaining the knowledge of the ex parte decree

He swore an affidavit to that effect also. There was no counter-affidavit to rebut his affidavit. As for service of summons by its affixture, on the face of report itself, it was defective and could not be held to be sufficient service conforming to the requirements in Order 5, Rule 17, Civil P.C. The serving officer would not be deemed to have exercised due and reasonable diligence unless he was shown to have made a real, honest and substantial effort after proper inquiries to find and locate the defendant for serving process of the Court upon him. In the present case the effort by the serving officer appeared insufficient and unreal also. The words `sufficient cause' in section 5 of the Limitation Act must receive liberal construction so as to advance substantial justice particularly when neither negligence nor, inaction, nor, want of bona fides was imputable to the applicant. As the appellate Court did not consider the question of extension of time and condonation of delay at all, it acted with material irregularity in rejecting the appeal on account of bar of time. Appellant had neither acted negligently nor mala fide. Rashid Ahmad Chaudhry for Appellant. Kh. Saeed-uz-Zafar for Respondents. Date of hearing: 25th January, 19931 Land measuring 60 Kanals, 3 Marlas situate at Mauza Warrir Kani belonged to Jamal Din appellant. Out of it, 43 Kanals, 16 Marlas were mortgaged for the mortgage-money of Rs.3,000 to Sardat son of Raju. Hassan Din claimed to have purchased above 60 Kanals, 3 Marlas from the appellant for a sum of Rs.6,

750. Rs.1,500 were paid in advance vide receipt dated 23-1-1962; Rs.2,250 vide another receipt on 8-6-1962 and Rs.3,000 were retained by him for payment to the mortgagee for redemption of the mortgage of 43 Kanals, 16 Marlas of land. The sale was incorporate) in Mutation No.86 attested on 23-12-1962. In appeal filed -by the appellant, mutation order was reversed by the Collector on 20-6-1964 and the land reverted to the original owner in the revenue records. Thereupon, Hassan Din brought a civil suit for affirmation of the sale of the land in his favour but withdrew it from the Court on 25-1-1968 with liberty to institute a fresh suit on the subject-matter. On 19-3-1968, fresh suit for declaration of ownership rights in the land-in- dispute and for perpetual injunction for restraining interference with his possession on it was instituted by Hassan Din against the appellant and Sardar in the Civil Court at Chunian. After usual kafiat by sheristadar, the suit was registered on 19-3-1968 and summons were issued for appearance of the defendants on 25-4-1968. Defendants could not be served personally for this date of hearing fixed by the trial Court. Process server found that they evaded service and affixed the summons upon their houses. He swore an affidavit in support of the service-return. Affixture of summons was witnessed by Zulfiqar who had signed the report by the Process server. The trial Court found it to be sufficient service upon the defendants and since they had failed to appear, an order for ex parte trial was made against them on 25-4-1968 and the suit was adjourned for taking ex parte proof from the plaintiff on 24-5-1968. Thereafter, the plaintiff gave evidence and upon being satisfied of its merit, the trial Court decreed the suit ex parte in his favour on 29-5-1968. Appellant applied for certified copies of the ex parte judgment and decree on 19-8-1968. Copies were prepared and delivered to him on 27-8-1968. Upon receiving necessary documents, he filed an appeal on 3-9-1968 before learned District Judge, Lahore. An application under section 5 of the Limitation Act supported by his affidavit for condonation of delayed filing of the appeal accompanied the memorandum of appeal. Appellant stated that he could gain knowledge of ex parte judgment on 27-8-1968 and prior to it he was unaware of proceedings taken against him. Learned District Judge found that in an appeal from the ex parte judgment, he was precluded to look into the sufficiency of service of summons and was confined to examine, whether the material brought on file was sufficient to sustain the ex parte judgment. Upon this view, he held that the appeal upon its presentation was barred by time prescribed in Article 152 of the Limitation Act, 1908. This order necessitated a further appeal to this Court by Jamal Din. It was admitted on 23-11-1971. Upon hearing the learned counsel and analysis of the record, second appeal deserved to be allowed for decision of the suit on merits by the trial Court. In terms of subsection (2) of section 96, Civil P.C., an appeal lies from an ex parte decree. Additionally, an application for setting it aside under order 9, Rule 13 and a petition for review under section 114 read. With Order XLVII of Civil P.C. were also available remedies. In case of fraud, misrepresentation and want of jurisdiction, remedy in section 12 (2), Civil P.C., also existed. Above remedies were concurrent and not exclusive of each other. In an appeal against the ex parte decree, the appellate Court can examine the propriety of the ex pane decree on its merits and also the question relating to sufficiency of service of summons upon the defendant and any illegality or irregularity affecting it could not be allowed to go unnoticed. Therefore, it was an inaccurate statement of law by learned District Judge that an inquiry in the appeal was shut to merits of the ex parte decree only and the question relating to due and proper service of summons could be examined only in an application filed under Order 9, Rule 13, Civil Procedure Code for setting aside of the ex parte decree. If this view was to prevail, the appeal against an ex-parte decree shall be reduced to an incomplete and a partial remedy. In absence of a clear prohibition about the scope of inquiry in appeal under section 96 (2) against an ex parte decree, it was difficult to sustain the view taken by the lower appellate Court. In my opinion, the appellate Court could go into the ground of non-appearance of the defaulting party unless it was prohibited by any positive rule of law, which was not shown to exist. Article 152 of first schedule of the Limitation Act provides thirty days' period for an appeal to the Court of a District Judge. Terminus a quo was the date of decree or order appealed from. Section 5 of the Limitation Act is applicable .for condonation of delay in presenting the appeal out of time. The cause shown for delay by the appellant was non-service of summons upon him and also lack of knowledge of the proceedings taken against him. Article 164 of the first schedule to the Limitation Act provides thirty days for setting aside of the ex-parte decree. In case of service of summons, the time runs from the date of the decree sought to be set aside and in case the summons were not duly served, e the time began to run, when the applicant had knowledge of the decree. In the instant case, appellant denied service of summons upon him and filed an appeal well within thirty days from the date of gaining of knowledge of the ex pane decree. He swore an affidavit to that effect also. There was no counter affidavit to rebut his affidavit. As for service of summons by its affixture, on the face of report itself, it was defective and could not be held to be sufficient service conforming to the requirements in Order 5, Rule 17, Civil P.C. The serving officer will not be deemed to have exercised due and reasonable diligence unless he was shown to have made a real honest and substantial effort after proper inquiries to find and locate the defendant for serving process of the Court upon him. In the case under consideration, the effort by the serving officer appeared insufficient and unreal also. The words `sufficient cause' in section 5 of the Limitation Act must receive liberal construction so as to advance substantial justice particularly when neither negligence nor, inaction, nor, want of bona fides was imputable to the applicant. As the appellate Court did not consider the question of extension of time and condonation of delay at all, it acted with material irregularity in rejecting the appeal on account of time-bar. In the circumstances, the appellant had neither acted negligently nor mala fide. Subject-matter of dispute was valuable land. I would, for the above reasons accept the appeal, set aside the decision of the learned District Judge dismissing the appeal as barred by limitation and also quash ex parte decree passed by the trial Court on 29-5-1968 and direct trial of the suit on merits in accordance with law. There shall be no order about costs respecting appeal in this Court. Records be returned. The trial Court shall issue fresh process to the parties for securing their attendance before it. AA/J-49/L Appeal accepted.