1998 PLP 283 (CLC)

‑‑‑‑O.IX, R.13‑‑‑Limitation Act (IX of 1908), Arts. 164 & 181‑‑‑Where suit was listed for recording evidence on behalf of defendant which he failed to adduce, despite several opportunities given to him, ex parte decree passed in consequence of such default, would be unquestionable. Rehman Weaving Factory (Regd:), Bahawalnagar v Industrial Development Bank of Pakistan PLD 1981 SC 21 ref. Raja Sikandar Khan for Appellant RANA BHAGWAN DAS, J.‑‑‑This appeal is directed against an order dated 10‑10‑1996 passed by learned Single Judge declining to set aside ex parte decree passed on 21‑8‑1995 in Suit No.924 of 1989. Respondents filed a suit for recovery of amount against the appellant which was duly served with the summons and after a written statement having been filed an issue was framed on 22‑2‑1995. In view of the defence taken by the appellant it seems that the burden of proof shifted on the appellant Corporation who led no evidence with the consequence that the sole issue was decided against it and the suit was decreed as prayed as stated above.

2. Feeling aggrieved by the decree, appellant filed an application under Order IX, rule 13, C.P.C. on 14‑2‑1996 which was seriously contested on facts as well as on the question of limitation. Learned Single Judge in the impugned order noticed that the application for setting aside the decree required to be filed within 30 days of the decree was actually filed after the passage of more than five months and was thus hit by the provisions of Article 164 of the First Schedule to the Limitation Act. On facts as well learned Single Judge found no merit in the application of the appellant and dismissed the same.

3. At the hearing learned counsel vigorously contended that application for setting aside the ex parte decree was made within time prescribed by Article 181 of the First Schedule to the Limitation Act and that the circumstances of the case did not attract Article 164 of the said Schedule to the Limitation Act.

4. While Article 164 prescribes a period of 30 days for an application for setting aside the ex parte decree from the date of the decree or where the summons were not duly served when applicant has knowledge of the decree, Article 181 prescribes a period of three years in an application for which no period of limitation is provided elsewhere in the First Schedule to Limitation Act or by section 48 of the Code of Civil Procedure, 1908 when the right to apply accrues. In the facts of the present case as observed earlier applicants/defendants were duly served with the summons and they had taken a definite stand in the defence of the suit, therefore in our view Article 164 is attracted and not Article 181 as misunderstood by the learned counsel.

5. It is further contended before us that while decreeing the suit, learned Single Judge had proceeded under the provisions of Order XVII, rule 2, C.P.C. read with Order IX, rule 6 and since the decree was not passed on the first date of hearing they would be entitled to invoke the provisions of Article

181. The contention is not tenable on the face of it. Fact of the matter is that the suit was listed for recording evidence on behalf of the appellant/defendant which having not been adduced despite opportunities, learned Single Judge did not commit any error of law by decreeing the suit against the appellant. Learned counsel has referred to Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21) in which the view taken was that the application for setting aside of the ex parte decree was not covered by Article 164 but it was governed by residuary Article 181 giving period of limitation as three years from accrual of right to apply. In the reported case ex parte decree was passed on a date after initial service of summons but on fresh hearing after return of records from High Court and defendants having no notice of date of hearing when such decree was passed. It was in these circumstances that the Supreme Court expressed the view that the application made within three years of ex parte decree as also from the date of knowledge of decree was within time.

6. In the present case it, is evident from the affidavit of the previous counsel appearing for the appellant that he was fully conscious of the date of hearing and on his own showing he had appeared in the Court in the early hours of tire day but left the Court with the expectation that he would be free by 12 'o'clock but was delayed on way back to Court. The appellants, therefore, cannot be permitted to say that they had no notice of the date of hearing or that they are entitled to the concession of the provisions contained under Article 181 as referred to above. As Article 164 of the Limitation Act is expressly applicable to the case in hand, Article 181 is hardly attracted in the circumstances and reference to this article is completely displaced and misconceived.

5. In the circumstances, we find no merit in this appeal which is devoid of any substance and is accordingly dismissed in limine alongwith. A.A./S‑102/K Appeal dismissed