1999 PLP 1846 (CLC)

not duly served, when the applicant has knowledge of the decree." Learned A.A.‑G. has also contended that Article 181 of the Limitation Act will be applicable in this matter which provides as follows:‑‑ "Applications for which no Three years When the right to period of limitation is apply accrues. provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908." Now I would like to discuss the case‑law referred to hereinabove by the learned counsel for the parties as follows:‑‑ (1) Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC

21. In this matter their Lordship of the Supreme Court have observed that:‑‑ Ex parte decree passed on a date after initial service of summons, on fresh hearing after return of records from High Court, and defendants having no notice of date of hearing when such decree passed‑‑ Applications for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree. " On the face of it with due respect to the authority, in this matter litigation was not pending between the parties in lower Court but the suits were filed and summons were duly served which is manifest from the record mentioned and referred to hereinabove. Whereas in the case referred to by the learned A.A.‑G. the civil suits were filed before the Civil Judge and the appeals were filed before the Appellate Forum and the matter after decision from the learned Lahore High Court was agitated before the Honourable Supreme Court, wherein it was observed that after return of the record from the High Court the defendants were having no notice of the date of hearing. Under the circumstances it was held that Article 181 of the Limitation Act will be Applicable in the case. Whereas in this case the defendants were already served, neither they filed written statement nor they filed counter‑affidavit or objections with the result that keeping in view their absence and negligence in pursuing their matter the applications under Order 39, Rules 1 and 2, C.P.C., were granted and the affidavit‑in‑ex parte proof filed by the plaintiff were also not challenged by the defendants with the result that the evidence furnished by the plaintiffs have gone unchallenged, same was accepted and the suits were decreed ex pa 'rte. In my humble opinion in view of the above facts and circumstances this authority is not applicable to this matter. (2) Jane Margret William v. Abdul Hamid Mian 1994 SCMR

155. In this matter their Lordship of Supreme Court held that mention of a wrong provision of law cannot be considered fatal to the grant of relief if it is otherwise available under the law to an aggrieved party. This authority was referred to by the learned A.A.‑G. when it was pointed out to him that application to set aside the ex parte order is to be filed under Order 9, Rule 13, C.P.C. whereas the present applications have been filed under Order 9, Rule 10, C. P. C. Be that as it may, if the material which has been discussed and referred. to hereinabove is considered, it is apparently crystal clear that the defendants were served with the notices/summons and they on their own accord did not appear and also did not file written statement or counter‑affidavits/objections to the applications with the result that the injunction applications were granted in favour of the plaintiffs and the suits were decreed as prayed. The applications for condonation of delay, if any, have not been filed and no sufficient cause for filing these hopelessly time barred applications has been made out. On the face of it though wrong section has been mentioned but even then the defendants under the circumstances are not entitled to be granted any relief. In my humble opinion this authority is also not relevant to the facts of the present case. Mr. Ahmad Mian Soomro has relied upon Government of the Punjab through Secretary (Services) Services General Administration ant Information Department, Lahore and another PLD 1995 SC

396. In this authority their Lordship of Supreme Court, held that delay of each day. is to be explained. Government could not be treated differently than private litigant on question of limitation under section

5. Limitation Act, 1908. (2) Muhammad Saleem and others v Ninkhtar Ahmad 1996 SCMR S

96. In this authority the case of the petitioners before the Supreme Court was that the ex parte decree was passed on 21‑6‑1977 and they were not served in the suit and that the ex parte decree was granted at their back. The petitioners came to know of the ex parte decree on 25‑8‑1980. On 29‑9‑1980 they made application for setting aside the ex parte decree, This means that they filed application for setting aside the ex parte decree after 34 days of acquiring knowledge thereof. In view' of Article 164 of the First Schedule to the Limitation Act, 1908, the `application should have been made within thirty days of the knowledge of the ex parte decree but the petitioners were late by four days in so doing. View taken by the learned Single Judge of the High Court was that this four days' delay had not been adequately explained and the revision petition was dismissed. Against this order the petitioners approached the Supreme Court where their leave to appeal was refused and the petitions were dismissed, with the following observation:‑‑ , "Provisions relating ' to the setting aside of an ex pane decree find mention in Rule 13 of Order IX of the Code of Civil Procedure. These provisions do not oblige a person making application for setting aside the ex parte decree to file certified copy of such decree alongwith his application. Learned counsel for the petitioners could not point out any other provision of law or rule whereunder the said application could not be made without appending thereto certified copy of the ex parte decree. Thus, even if it is assumed that the petitioners acquired knowledge of the ex parte decree on 25‑8‑1980, there is no good explanation for their failure to file application for setting the ex pane decree after four days of the running out of the period of limitation, namely, 30 days following acquisition of knowledge of the ex parte decree." The case‑law referred to by Mr. Ahmad Mian Soomro, learned counsel for the plaintiff, in my humble opinion is relevant and applicable to the facts of the present suit. Since the defendants were served through the summons/notices which service was held good by the Additional Registrar, the defendants admittedly did not file written statement in support of their case, they also did not file objections to the application under Order 39, Rules 1 and 2, C.P.C. The matter was placed in Court for final disposal. Even then the defendants did not appear and contest the suits. The evidence furnished bi the plaintiff have gone unchallenged with the result that the suits were decrec; ex parte. Learned A.A.‑G. filed applications under Rule 159 SCCR (O.S.~ without mentioning particulars of the defendants and also without the date of order and the office rightly raised the objections which were not even complied with. Thereafter; the learned A.A.‑G. filed applications, dated 3‑9‑1996 to recall and set aside the ex parte decree which is after about more than 7 months delay. The petitioners have not shown the plausible explanation for filing these applications so late. According to Article 164 of the Limitation act,the applications for setting aside the ex parte orders are to be filed within 30 days from the date of the order. Whereas the present applications have been filed after delay of about more than 7 months. Even the delay of single day is to be explained by the parties concerned to the satisfaction of the Court. For the aforesaid facts, circumstances, reasons and case‑law I find no substance in these applications which are hopelessly time barred which must fail and the same are accordingly dismissed with no order as to costs. On 3‑6‑1998 after hearing learned counsel for the parties . the applications were dismissed. Above are the reasons for the same. A.A./D‑17/K Applications dismissed.