P L D 1983 Supreme Court 387 (PLP)

MUHAMMAD AFZAL ZULLAII, J.-This appeal through special leave of this Court arises out of an ex parte money decree passed against the appellant Asim Khan who having died his legal representatives are on record. The leave to appeal was granted in the circumstances that follow. The ex parte decree for recovery of rupees 11,806 was passed against the appellant by Civil Judge, Mardan, on 21-3-1969. The appellant applied for setting aside the decree under Order IX, rule 13, C. P. C. on the allegation that he had not been duly served and that he had come to know of the decree on that very date, The trial Court set aside the decree on the finding that no proper service had been carried out on the appellant, but on a revision petition filed by the respondent, the High Court came to the conclusion that the application for setting aside the ex parte decree was barred by time and restored the decree. In arriving at this conclusion, the learned Judge relied on the statement made by the appellant, in cross-examination, that towards the end of March he came to know that Farzi and ex parte decree had been passed against him. The contention raised and noted at the leave granting stage was that the statement made by the appellant did not burden him with the knowledge of the decree within the purview of Article 164 of the Schedule to the Limitation Act and time did not begin to run because by then he neither knew the name of the Court nor the date of the decree nor the amount for which the ex parte decree had been passed. According to the averments in the application under Order IX, rule 13, C.P.C. and the statement of the appellant in examination-in-chief before the trial Judge, he came to know of these facts on' 8th May, 1969, and on the same day he applied for setting aside the ex parte decree. In support of the proposition reliance was placed on Kedar Nath Singh v. resr! Mull and others (1) and Malik Muhammad Nazir v. Mian Abdur Rahim and another (2). Leave to appeal was granted to examine the question, whether time had begun to run under Article 164 of the Limitation Act from the mere ,t knowledge of the appellant that an ex parte decree had been passed against him. Learned counsel for the appellant has argued at some length on the question firstly whether in the facts and circumstances of this case, the date of knowledge of the decree under Article 164 of the Limitation Act would be 8-5-1969 as asserted by the appellant in his application and not 31-3-1969 as admitted by him under cross-examination because he was aware of the details of the decree on 31-3-1969. Reliance has been placed on Malik Muhammad Nazir v. Mian Abdur Rahim and another, Kedar Nath Singh v. Kesri Mull and another and SGhan Lal v. Poonam Chand (3) and secondly, whether Article 164 would be attracted because according to the learned counsel on proper analysis, as held in Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (4) it would be a case of Article

181. The ex parte decree was passed by the learned Civil Judge, Mardan, on 21-3-1969. Under cross-examination the appellant stated that he became aware during the last days of March that a fake ex parte decree had been passed against him. The original Urdu versions is as follows : lh f-L.. ~.~i = f 9 oA Jt- r. - 1 9 r r J" O." V." ??????????????????????????????????? w~1rh~ c~:e ?1' ~s''? uY~:. ~.?????????? lrt???????? G. ,r'' f41 c~~T ??????????? ";~w, Sr cf'' ~ c~'~ tS~s ~~ ~ Earlier he had stated that on the day of the filing of the application on 8-5-1969, he had been told . by "some one" that an ex parte decree had been passed against him and in favour of Muhammad Fazil Khan. It is also ??????????? (1) A I R 1937 Pat. 17 ? (2) P L D 1968 Lah. 792 (3) AIR 191;1 Raj. 32??? (4) P L D 1981 S C 21 necessary to note here that the appellant had asserted in his applicatio dated 8-5-1969 that about a month earlier to the date of decree (on 10-2-1969 he had come to the Court of Additional Civil Judge, Mardan, in connection with this very case and. was told that "it will be sent for trial to a Civil B Judge at Sawabi." This last mentioned fact would burden the appellant with the knowledge about the nature of the suit, namely, that it was a suit for the recovery of Rs. 11,806.96 regarding balance of the price of Tobacco and that the claim was based on documentary evidence. The legal question for the examination whereof leave was granted i dependent upon a certain state of knowledge or to put it more precisely the absence of the knowledge of the appellant regarding the particulars of the decree like the date and amount thereof. But as noted above it is not possible to agree with the learned counsel, that the appellant had no such C knowledge. He was aware of the respondent's claim (which was decreed without any change) earlier than the decree.- If he was aware of the suit it would not be unfair to assume affirmatively about his knowledge regardin the basis of the suit. He became aware of the decree in the end of March, 1969. It is nowhere asserted in the application for setting aside of the ex parse decree, the affidavit accompanying the application or the statement in Court that the knowledge was deficient regarding any essential particulars of the decree. On the other hand the knowledge referred in the application and the examination-in-chief of the appellant for filing the application which was from `some one,' was similar to what be had learned in the end of March, 1969. It appears logical to assume, in the circumstances of the case, that the appellant was aware in the end of March about the essential particulars of the decree and that is why he said that he had then learned that it was as he pu it a Farzi and ex parte decree. We are thus not convinced that he was not L aware of the necessary particulars of the decree for filing an application fo setting aside the same or for filing an appeal against it. There is thus no factual basis for the first argument raised by the learned counsel on which leave to appeal was granted. It is, therefore, not necessary to .decide the legal question regarding the scope of the word `knowledge'-as used in Atticle 164 of the Limitation Act. Regarding the second argument of the learned counsel that it was not the first hearing and that the same being an adjourned hearing for appearance before another Court at Swabi, it requires fresh factual enquiry ; and further, the same not having been raised at the leave granting stage, in the circumstances of the case, we do not consider it necessary to examine whether it will fall within the rule laid down in Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan. This appeal thus fails and is dismissed but there shall be no order as to costs. M. Z. M. ???????? Appeal dismissed.