2020 PLP 4 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this revision petition, the petitioner has challenged the order dated 26.06.2019 whereby the learned Civil Judge, Gujrat dismissed the application of the petitioner for setting aside the ex-parte judgment and decree dated 16.11.2015 and the order dated 21.08.2019, passed by the learned Additional District Judge, Gujrat dismissing the appeal of the petitioner.

2. Brief facts of the case are that the respondent No.1 filed a suit for recovery of Rs.15,50,000/- against the petitioner and respondent No.2. The petitioner appeared before the learned trial Court on 11.06.2013 and the case was adjourned for filing the written statement but in spite of filing the written statement, petitioner disappeared from the learned trial Court upon which ex-parte proceedings were initiated against him on 23.10.2013. After recording the ex-parte evidence, the learned trial Court ex-parte decreed the suit on 16.11.2015. The petitioner filed application for setting aside the ex-parte judgment and decree on 21.07.2017 which was dismissed by the learned trial Court vide order dated 26.06.2019. The appeal of the petitioner was also dismissed by the learned appellate Court on 21.08.2019. Hence, this civil revision.

3. Learned counsel for the petitioner submits that a compromise was affected between the parties outside the Court, as such, the petitioner went abroad and did not appear before the Court but the learned Courts below have not considered this aspect of the case. Further submits that on knowledge of the impugned judgment and decree, the petitioner filed application for setting aside the same but the learned Courts below without applying judicious mind, erroneously dismissed the same.

4. I have heard the arguments of learned counsel for the petitioner and gone through the record with his able assistance.

5. Admittedly the petitioner/defendant joined the trial proceedings of the case on 11.06.2013 and sought adjournment on 04.07.2013 and 19.09.2013 for filing the written statement. Finally the case was adjourned on the request of the petitioner for filing the written statement on 23.10.2013, but he did not appear which resulted into initiation of ex parte proceedings against him and the learned trial court after recording evidence of respondent No.1, passed ex-parte judgment and decree dated 16.11.2015. The petitioner filed application on 21.07.2017 under Order IX, rule 13, C.P.C. for setting aside the ex-parte judgment and decree dated 16.11.2015 after lapse of 01 year and 08 months whereas under Article 164 of the Limitation Act, 1908, the prescribed period of limitation is 30 days from the date of passing the decree, as such, the application of the petitioner is hopelessly time barred. The petitioner has been appearing before the learned trial Court and seeking adjournments for filing of written statement but all of sudden disappeared, as such, the limitation under Article 164 of the Act ibid is applicable on the case of the petitioner. Reliance is placed on Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandiar Khan (2008 SCMR 287). Relevant portion of the judgment (supra) is reproduced as under: "5. ...Since it was well within the knowledge of petitioners that suit was pending against them and were declared ex parte as such Article 164 of Limitation Act would be applicable in their case whereby period to move application for condonation of delay is 30 days." Reliance is also placed on Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21) and Col. Atta-ur-Rehman v. Ahmad Yar Khan and 3 others (PLD 1980 Lahore 181).

6. The argument of the learned counsel for the petitioner that lis should be decided on merits rather stifling the valuable rights of the parties on the technical ground of limitation, suffice it to say that the limitation only bars the remedies to agitate a matter before a legal forum and the question of limitation cannot be considered as mere technicality rather it has got its own significance and would have substantial bearing on merits of the case. Reliance is placed on Muhammad Islam v. Inspector-General of Police, Islamabad and others (2011 SCMR 8).

7. Perusal of record shows that the petitioner has neither mentioned any sufficient cause or reason for delayed filing of the application for setting aside the ex-parte judgment and decree, nor disclosed the date, time place of acquiring the knowledge of passing of the judgment and decree whereas it evinces from the judicial record that the petitioner joined the proceedings but willfully deserted the same as such it can conveniently be observed that he was well within the knowledge of the legal proceedings and against above he did not submit any document in support of his contentions agitated in the application for setting aside of the judgment and decree. It is argued by the learned counsel that the valuable right of the people should be determined and decided on merits by disallowing the technicality of limitation, suffice it to say that the courts are equipped with the power to regulate the proceedings of the case and should make diligent efforts to conclude the trial proceedings within possibly shortest span of time and matter cannot be prolonged at the whims and caprice of the litigating parties and if a party after having once joined the case proceedings deliberately and willfully abandoned the proceedings then there is left nil space to keep the matter unnecessarily pending rather the court should proceed further to take the proceedings to its finality. Admittedly the petitioner joined the trial proceedings whereafter abandoned the same and an ex parte decree has been passed against him and in the present case, limitation runs from the date of decree and not from the date of knowledge, as such, the learned Courts below rightly dismissed the application of the petitioner. It is cardinal principle of law that a valuable right accrued to the other party by running out the period of limitation and the same cannot be taken away lightly. Reliance is placed on the case of Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), wherein it is held as under:- "It is settled principle of law that valuable right accrues to the other side by lapse of time and each day's delay has to be satisfactorily explained. It was argued that valuable rights of the petitioner is involved but this does not furnish a proper ground for condonation of delay in civil matters. Plea for condonation of delay on the ground of poverty is also not valid ground as law laid down by this Court in Hakim Abdul Rehman's case 1970 SCMR

582. It is also a settled maxim that law of equity favour those who are vigilant. The conduct of the petitioner clearly shows that he was not serious to pursue the matter before the Courts below."

8. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order passed by the learned Courts below. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through LRs (PLD 2008 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

9. In view of above, this civil revision being devoid of any merit is dismissed to limine. No order as to costs. ZC/M-171/L Revision dismissed.