1987 PLP 1120 (CLC)

(1) Whether the application is time‑barred? OPR (2) Whether there are sufficient grounds to set aside the ex parte decree? OPP. (3) Relief . The parties led their evidence. The trial Court decided issue No. 2 in favour of the petitioner /defendant but in view of its findings on issue No.l, dismissed the application as barred by time. Feeling aggrieved of this order, the petitioner/ defendant filed appeal challenging the findings of the trial Court on issue No.l. The plaintiff /respondent also filed cross‑objections challenging the findings of the trial Court on issue No.

2. The appeal and cross‑objections were disposed of through single order maintaining the findings of the Court below on issues Nos.l and 2, hence this revision.

2. Learned counsel for the petitioner has challenged the findings of the Courts below on issue No.l relating to the limitation. He submitted that the learned trial Court instead of applying Article 181 of the Limitation Act has wrongly applied Article 164 to the application for setting aside ex parte decree dated 27‑9‑1974 moved by the petitioner/ defendant on 21‑9‑1977; that the ex parte proceedings by the successor Court against the absentee defendant /petitioner were against law, inasmuch as, no free notice was issued by the transferee Court to the defendant /petitioner as required by section 24‑A, clause (ii), C.P.C. and High Court Rules and Orders Vol. I, Chapter XIII, Rule 6; that since no decree was passed on 5‑9‑1974 when order for ex parte proceedings was passed against the petitioner/ defendant, therefore, it will be deemed that the impugned judgment and decree was passed under Order XVII, Rule 2, C.P.C. and not under Order IX, Rule 6(i)(a), C.P.C. and as such. Article 164 of the Limitation Act could not have been applied and that the original order dated 5‑9‑1974 was also illegal because the same does not show that it was proved that the summons was duly served. Reliance has been placed on cases Aziz Ullah Khan v. Arshad Hussain P L D 1975 Lah. 879 and Krishan Lal Malhotra v. Madan Lal and others P L D 1950 Lah. 82.

3. I have considered the submissions made by the learned counsel for the petitioner with care. I do not feel inclined to agree with him. I find that the suit was filed before Administrative Civil Judge, who while passing order for ex parte proceedings against the petitioner/ defendant on 5‑9‑1974 had stated: It is thus, very much obvious that it was proved that the summons was duly served although through citation and as such, the order for ex parte proceedings was in accordance with rule 6(i)(a) of Order IX, C . P . C . It is also very much clear from this order that order for ex parte proceedings against the petitioner was not passed by the transferee Court. The order for ex parte proceedings against the petitioner was very much intact when the file of the case was received in the successor Court; that the Administrative Civil Judge had entrusted the case to Civil Judge for recording ex parte evidence; that the transferee Court recorded ex parte evidence on 26‑9‑1974 and passed ex parte decree on 27‑9‑1974; that thereafter, the petitioner/ defendant filed application under Order IX, Rule 13, C . P. C . , for an order to set aside decree passed ex parte. Whether the ex parte decree was in consequence to the ex parte order under Rule 6 of Order IX or Rule 2 of Order XVII, C.P.C. the fact remains that the instant application filed by the defendant /petitioner was for an order to set aside the decree passed ex parte and as such, the case being specifically provided for by Article 164 of the Limitation Act, the residuary Article 181 has, of course, no application. A definite period of limitation has been prescribed by Article 164 of the Limitation Act for an application to set aside the ex parte decree, Article 164 of the Limitation Act may be reproduced advantageously:‑

Description of Period of Time from which application. Limitation period begins to run. ‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

164. By a defendant The date of the decree or where for an order to set (Thirty days) the summons was not duly aside a decree passed served, when the applicant ex parte. has knowledge of the decree. It is thus, very much obvious that for an order to set aside decree passed against the petitioner/defendant, he had to file regular application within 30 days of decree in case the summons was duly served or where the summons was not duly served within 30 days of his knowledge of the decree. Since the Courts below have concurrently held that the summons was not duly served on the petitioner/ defendant, therefore, the petitioner was/is entitled to count limitation from the date when he had knowledge of the decree. So the crucial question which needs determination is as to whether the application filed by the petitioner for an Order to set aside the ex parte decree was within 30 days when he had knowledge of the decree. Obviously, the onus was/is upon him to establish that he came to know of the decree within 30 days before 21‑9‑1977 when he applied for setting aside the same. Now I proceed to consider whether the petitioner has been able to discharge that burden or not. I find that in his application dated 21‑9‑1977 for setting aside the ex parte decree dated 27‑9‑1974, the petitioner had stated that he came to know of the ex parte decree on 20‑9‑1977 when he contacted Halqa Patwari in connection with some mutation. It may be noted here that application filed by the petitioner/ defendant for setting aside ex parte decree is not a substantive piece of evidence. After framing of the issues, the petitioner appeared as A.W.1 and stated: Strangely enough, the petitioner not only omitted to mention the exact date of knowledge of decree as given by him in the application but also categorically stated that he had moved application after one month/11 months of his knowledge of the decree. Since the contents of the application wherein he had given the date of his knowledge as 20‑9‑1977 are not legal evidence, therefore, the same cannot be used in favour of the petitioner. So on his own showing the application filed by the petitioner for setting aside ex parte was barred by time. The Courts below have concurrently found that application filed by the petitioner/ defendant was not within 30 days of his knowledge. The Courts below have applied conscious mind to the evidence and have given sound and cogent reasons in support of the conclusions arrived at by them. The findings of the Courts below do not suffer from misreading or non‑reading of evidence. No application under section 5 of the Limitation Act for extension of the period of limitation was moved by the petitioner. The case‑law cited by the petitioner is quite distinguishable. Section 24‑A of the Civil Procedure Code and High Court Rules and Orders referred to by the learned counsel for the petitioner do not apply to the facts of the case. The case‑law relied upon by him does not relate to the question of limitation. Non‑issuing of notice by the transferee Court may be a sufficient cause for his non‑appearance and a good ground for setting aside ex parte decree provided the application for setting aside the same is made within time. For all these reasons I am convinced that despite findings of the Courts below on issue No.2, application filed by the petitioner has rightly been dismissed as barred by time and as such, no exception can be taken to the findings of the Courts below on issue No.l. The impugned orders do not suffer from illegality, irregularity or jurisdictional defect.

4. For what has been said above, the petition is dismissed in limine. H . B . T . /F‑7 / L Revision petition dismissed.