1995CLC516 (PLP)

(a) that the Government of N.‑W.F.P. through Secretary, C & W was not served in accordance with the mandatory provisions of the Code of Civil Procedure and the learned lower Court committed an illegality by holding that defendant/appellant No. 1 had been rightly served through registered post A.D.; (b) that the learned lower Court had erred at law in holding that the Sub -Engineer of the C & W Department was authorised to appear on behalf of the appellants‑defendants 2 to 4; (c) that the learned lower Court was not well within its right by holding that the applications submitted by the appellants/defendants 1 to 4 were barred by time because in the present case the appellants/defendants could apply for setting aside the ex parte decree within a period of 3 years under Article 181 of the Limitation Act, 1908 (Act IX of 1908) from the date when the right to set aside the ex parte decree accrued to them.

9. On the other hand, the learned counsel for the respondents/plaintiffs submitted that the stand/stance taken‑up on behalf of the appellants/defendants was not correct in as much as they had been served, in accordance with law and that they were properly represented by Muhammad Nawaz, Sub‑Engineer, C & W., Highway Department, Abbottabad on 11‑1‑1990 and thereafter by Aurangzeb, Sub‑Engineer on 19‑6‑1991. However, in the event of their failure to appear in Court and join the proceeding, at a later stage, the lower Court had correctly initiated ex parte proceedings against them. He also drew out our attention to Local Commissioner's report dated 31‑5‑1992 which clearly shows/reveals without doubt that a representative of defendants Nos. 3 and 4 had appeared before him on 18‑4‑1992 and had obtained, at his own request, two adjournments, one on that date and other on 11‑5‑1992. In view of the direct knowledge of the suit in question (i.e. litigation) and active participation therein, as mentioned above, it does not lie in the mouth of these appellants to say that they had no knowledge about the institution of the suit and that they were never served. Without knowledge of the suit in question or proper service of summonses issued in connection with the said suit how could the two Sub‑Engineers of the C & W Department put in appearance in the Court, as their representatives, in the initial stages of the suit and proceedings before the local commissioner. Besides they were fully in the know of the ex parte decree passed against them.

10. This being the correct position, the case is governed by Article 164 and not by Article 181 of the Limitation Act, 1908. The applications, one dated 2‑12‑1992 and the other dated 30‑1‑1993, moved by the appellants/ defendants 1 to 3, for setting aside ex parte/impugned decree being much beyond 30 days (as required by Article 164 of the Limitation Act, 1908) are hopelessly barred by time and therefore, cannot be entertained. This is the crux of the arguments of the respondents/plaintiffs.

11. A perusal of the relevant record would reveal the factual position and that is that appellants/defendants Nos. 1 to 4 despite personal service had failed to appear on the date fixed for hearing and thus were proceeded against ex parte on 8‑2‑1990. Defendant No. 5 was, however, placed ex parte on 14‑3‑1990. They failed to take advantage/benefit of Rule 7, Order IX, C.P.C. which is reproduced hereunder for the sake of convenience:‑‑ Where the Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing, appears and assigns good g cause for his previous non‑appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he hal appeared on the day fixed for his appearance:'

12. Notwithstanding, the Civil Judge adjourned the case to a future day on which ex parte evidence was partially recorded. In the meantime plaintiff No. 2 died and his legal representatives were brought on record. Thereafter, once again, fresh summonses were issued in the names of appellants/defendants. Appellants/defendants Nos. 1 and 2 were personally served on 15‑4‑1991 and so were the, others. As result of this step, enabling them to join/participate in the proceedings, they were duly represented by Mr. Aurangzeb sub‑Engineer on 19‑6‑1991. He was directed to produce letter of authority on their behalf. In consequence thereof, the Sub‑Engineer appeared regularly on several dates of hearing such as 14‑7‑1991, 2‑9‑1991, 1‑10‑1991, 30‑10‑1991 and 20‑11‑1991 on behalf of appellants/defendants. It is significant to note that on 3‑12‑1991 neither any of the appellants nor the aforesaid Sub‑Engineer appeared in Court with the result that the appellants were proceeded against ex parte on that date i.e., a date fixed for hearing. On that day, some evidence was recorded as produced by the respondents/plaintiffs. Instead of basing a decree do such evidence, the learned Civil Judge, by way of abundant caution, appointed Mr. Abdur Razaq, Advocate as Local Commissioner on 2‑3‑1992 for assessing the real damage/actual loss sustained by the respondent/plaintiff due to the widening of road by the appellants/defendants. 13.' The above‑named Local Commissioner, in connection with the task assigned to him, summoned the appellants/defendants to appear before him so as to enable him to prepare the required estimate with the help/aid/skill and expert knowledge of the appellants/defendants. In this context, it will not be out of place to mention here that, Mr. Aurangzeb, Sub‑Engineer C. & W. Department turned up, on behalf of defendants/appellants, on 18‑4‑1992. On his request the proceedings were adjourned to 11‑5‑1992. On 11‑5‑1992 he pressed for another adjournment but this time the Local Commissioner did not oblige him. Thereafter, he himself and all appellants/defendants neither appeared before the Local Commissioner nor did they appear in the Court, either personally or through representatives/agents/lawyers.

14. The Commissioner's report was received in Court on 31‑5‑1992 without any objection from either side. Acting on this unchallenged report of the Commissioner, the learned Civil Judge passed an ex parte decree for the recovery of Rs.11,20,000 in favour of the plaintiffs/respondents and against the defendants/appellants, on 22‑6‑1992, in respect of the loss/damage sustained by them due to the wrongful acts of appellants/defendants.

15. Dissatisfied by the ex parte decree, appellant/defendant No. 4 filed an application for vacation of such decree, in the first instance, on 2‑12‑1992. Defendants/appellants Nos. 1 to 3, however, for the same purpose, simply submitted an application on 30‑1‑1993 for their joinder to application dated 2‑12‑1992, through one and the same lawyer.

16. Both these applications were resisted by the respondent/plaintiff on variety of grounds, both factual as well as legal. They stated that these were time‑barred, mala fide and legally not tenable by reason of estoppel. Both the applications were, therefore, rejected by the Civil Judge on 16‑5‑1993. Hence this appeal.

17. We have had the advantage of hearing the learned counsel on both sides and have gone through the record of the case very carefully. It is needless to mention here that when an ex parte decree is passed against a defendant, he has more than one remedies available to him. He can‑‑

(1) apply under Order 9, Rule 13, C.P.C. for setting aside ex parte decree; (2) invoke reviewal jurisdiction of the trial Court for setting aside ex parte decree under section 114, C.P.C. read with Order 47, Rule 1, and (3) challenge the validity of ex parte decree on merits.

18. It is interesting to note that defendants/appellants Nos. 1 to 3 have not availed either of these remedies open/available to them but have chosen to be impleaded as parties to the application filed by defendant/appellant No. 4 under Order 9, Rule 13, C.P.C. for setting aside the impugned decree.

19. We have serious reservation about the new and novel proposition if the provisions of Order 1, Rule 10 can be borrowed and applied for impleadment to an application made by defendant/appellant No. 4, in the circumstances when there is no hurdle in their way for seeking vacation of the ex pane decree straightaway under Order 9, Rule 13, C.P.C.

20. Reverting to the original subject, if a defendant applies under Order 9, Rule 13, C.P.C., all that he is required to do was‑‑ (1) to satisfy the Court that the summons was not duly served, or (2) to show that he was prevented by any sufficient cause from appearing when the suit was called for hearing.

21. So far as defendants Nos. 1 to 3 are concerned, we find no averments in respect of these twin elements. In the absence of such averments, namely they were not properly served or they were prevented by sufficient cause, beyond the human control, from appearing in Court on dates fixed for hearing in the suit, it is not rash to presume that they were properly served in accordance with law and that they have no good grounds to show for their non‑appearance on 19‑6‑1991. Thus the ex parte decree passed against these three appellants/defendants stands intact and cannot be set aside.

22. As far as the case of defendant/appellant No. 4 is concerned, we are equally unable to find any merit therein. In order to set aside ex parte decree, onus heavily lies on the appellant/defendant to satisfy the Court that he was not duly served or there was sufficient cause by which he was prevented to appear in Court when the suit was called for hearing. To appreciate his contention it is necessary to go through the contents of his application for setting aside the impugned decree. A perusal of the text of his application would show that he has taken two pleas‑‑ (1) that he has not been served in accordance with law, and (2) that he has come to know about the existence of the impugned decree on 25‑11‑1992.

23. On the face of it neither of these two contentions has any substance or ring of truth. We have held above that he was duly served and he too was represented by his own Sub‑Engineer, who could not, on his own and without the permission/instructions from defendants/appellants, appear on their behalf in the Court on various dates of hearing and also before the local Commissioner, as discussed above. All the defendants/appellants have been given unduly favourable treatment by the learned Civil Judge. Under Order 9, Rule 7, this defendant/appellant who was placed ex parte at two stages referred to above, did not apply to the said Court for setting aside ex parte proceedings on the ground that he was not properly served. Nevertheless, he was allowed to be represented in future date of hearing through his agent/subordinate and was thus taking active part in the proceedings in a suit instituted against him to his knowledge and that of others. His personal knowledge of the suit pending against him and. others, his conduct, his participation in proceedings through his representative/subordinate (which he has never F disowned at any time or stage) and his sudden and abrupt spurt in keeping himself away and the dramatic disassociation of his representative/subordinate from the proceedings which had entered a crucial stage, would essentially and totally demolish the pleas taken up by him. He had gained personal knowledge of the institution of the suit in February, 1990 and then in June, 1,091 and also through his representative/subordinate. It can be said with certainty that he had full knowledge about the existence of the impugned .decree in June, 1992. His application dated 2‑12‑1992 for setting aside the ex parte decree after 5 months and 10 days is, hopelessly bared by time within the meaning of Article 164 of the Limitation Act, 1908 which prescribes 30 days from the date of knowledge of such decree.

24. There is no explanation as to why did he disassociate from the proceedings in May, 1992. Nor has he appended any application under Article 5 of .the Limitation Act, 1908 for condonation of delay. There was no justification for the Civil Judge to set‑aside the ex parte decree in question. We also do not find any reason or ground to interfere with the impugned order of the Civil Judge. This appeal, in our view, does not merit consideration and is therefore, rejected.

25. Before parting with' the case we would like to observe that the Secretary to Government of N.‑W.F.P., C & W. Department should hold a proper enquiry in this matter, fix responsibility and take appropriate disciplinary action against the official/officials who is/are guilty of negligence/misconduct, wilful or otherwise. The Deputy Registrar is directed to send a copy of this judgment to the Secretary concerned. Costs to follow the events. AA./1661/P Appeal dismissed.