P D 1998 Peshawar 43 (PLP)

The petitioners' applications for setting aside the ex parte decree were rejected by both the Courts below. Therefore, they have filed the instant civil revision for setting aside the aforesaid orders and also to set aside the ex parte decree dated 26‑9‑1992.

2. Facts of the case are' that the plaintiff/respondent (hereinafter called as respondent) filed a suit for declaration of title regarding the property mentioned in the heading of the plaint. The suit was filed on 16‑7‑1990. The petitioners/defendants (hereinafter called as petitioners) put their appearance before the Court and also filed their written statements on 31‑3‑1991. On the following day i.e. 1‑4‑1991, the trial Court framed the following issues:‑‑ (1) Whether the plaintiff has got a cause of action? (2) Whether the plaintiff has become owner of suit land by way of purchase and the mutation thereof is illegal being dismissed? (3) Whether the plaintiff is entitled to the decree as prayed for? (4) Relief? After framing the issues, the trial Court directed the parties to file their list of witnesses. The evidence of the respondent's party was recorded on 1‑8‑6‑1993. The evidence of petitioners was called for 9‑7‑1993. On failing to produce evidence in defence, the Court struck off the defence of the petitioners on 25‑7‑1991 and the case was adjourned for arguments on the suit. The arguments could not be heard on different adjourned dates, ultimately on 21‑6‑1992, the counsel for respondent submitted an application for disposal of suit on oath. The respondent in his application offered that let the petitioners took an oath to the effect that neither there was any sale transaction between the parties nor they have received the sale consideration nor the respondent was put in possession of the suit land, if the petitioners took oath to that effect, the suit of the respondent be dismissed or in alternative the respondent express his willingness to take oath in order to get the matter resolved forthwith. The case was adjourned for replication by the petitioners and also for arguments on the main suit. On the adjourned date i.e. 29‑6‑1992 the respondent alongwith his counsel appeared before the Court but neither the petitioners nor their counsel attended the Court resultantly, the impugned ex parte decree was passed.

3. On 20‑7‑1993 the petitioner No. 1 and on 29‑7‑1993 petitioners Nos. 2 and 3 submitted two separate applications in the same wordings for setting aside the ex parte decree. It was contended in para. 2 of their each application that the suit property was allotted to their predecessor Ghulam Nabi Baig a refugee, against a claim of allotment. Since they were residing at Peshawar and the suit land was situated in Village Bachkan, Tehsil and District Lakki Marwat, on receipt of notice of the suit, they engaged a local counsel for appearance in the Court with the commitment that the said counsel would regularly inform them of the proceedings, but he (their counsel) did not inform them of the ex parte decree dated 29‑6‑1992. It was on 8‑7‑1993 when the petitioner No. l visited the trial Court and got the knowledge of ex parte decree. In para. 4 of their petitions it was alleged that the decree passed under Order XVII, Rule 3 by the trial Court is without jurisdiction as the case was not fixed for hearing. The respondent, on the other hand, flatly denied the contention made in their petitions for setting aside the ex parte decree.

4. The learned counsel for the petitioners contended that the suit was fixed for replication and not for hearing and the trial Court was not legally competent to pass an ex pane decree. Further submitted that on the previous date i.e. prior to' ex parte decree, the case was adjourned in the absence of petitioners and they were not informed of the proceedings by their counsel. And they have rightly filed the application for setting aside the ex parte decree immediately after getting information of the same. He also contended that the application/petition filed by the petitioners for setting aside the ex parte decree was not time‑barred as the same could be challenged through application under Article 181 of the Limitation Act, which is a residuary provision, and provides time limit for three years.

5. The learned counsel for the respondent contended that the suit was fixed for replication as well as arguments on the main case. The suit was ripe for final hearing since 25‑7‑1991 and on six consecutive dates the arguments were adjourned for one reason or the other. On the previous date to ex parte decree, the respondent submitted an application for disposal of the suit on the basis of taking oath by the petitioners or in alternative by the respondent. As the petitioners and their counsel were not taking any interest in the suit which is evident from the Order sheets of the trial Court. The suit was adjourned for so many dates for appearance and filing written statements of the petitioners, subsequently on closing the evidence of respondent, the petitioners failed to produce any evidence resultantly their defence was struck off on 25‑7‑1991 which was not challenged and thus accepted by .petitioner. With intend to bring the agony of the respondent to an end, he submitted an application for disposal of the suit on oath as required under Article 163 of Qanun‑e‑Shahadat but the petitioners, having no defence and not willing to take oath suggested by the respondent, deliberately absented themselves as well as their counsel. It is wrongly contended that the suit was not fixed for hearing. Further submitted that 30 days are required under Article 164 of the Limitation Act for setting aside the ex parte decree but the petitioners have filed applications for setting aside the ex pane decree after more than a year which was miserably time‑barred and both the lower Courts have rightly dismissed their application for setting aside the ex parte decree.

6. I have heard the learned counsel for petitioner as well as respondent on pre‑admission notice and have also gone through the record with their assistance.

7. The contention of the learned counsel for the petitioners that the suit was not fixed for hearing on the date when ex parte decree was passed, is against the record. The case was ripe for final adjudication when on 2‑6‑1992 the application for disposal of suit on the basis of oath was submitted by the respondent. The proceedings on this application were ancillary and the case was fixed for replication as well as hearing of the main case. The learned counsel for the petitioners, on a query, submitted that the suit could not be dismissed under Order 17, Rule 3 but could only dispose of under Order 17, Rule 2, C.P.C. Under both the provisions of law, the Court can competently pass an ex parte decree due to absence of the petitioners: The remedy available to the judgment debtor in an ex parte decree is to file an application for setting aside the ex parte decree within 30 days of the date of decree when appearance is made in the proceedings or from the date of knowledge if not properly served. The present petitioners participated in the proceedings and subsequently absented themselves as well as their counsel, their application after more than a year is miserably time‑barred. The contention that the time limit against the impugned ex parte decree passed on date fixed in the absence of the petitioners, could be challenged through an application for setting aside the ex parte decree under Article 181 of the Limitation Act which is a residuary provision providing for three years' period, is also without any substance because the petitioners and their counsel absented themselves during the course of proceedings and in such a situation Article 164 of the Limitation Act would apply and not Article 181 of the Act ibid.

8. The contention of the learned counsel for the petitioners that they were not informed by their counsel of the ex parte decree, is not helpful to them. The party who engages the counsel bound himself by any act or omission of his counsel. Even engaging a counsel does not absolve the party's liability to pursue his case diligently. In the wording of power of attorney signed by the petitioners which runs as under:‑‑ URDU 1

9. The ground taken for not filing the application within time, is unwarranted under the law. This is neither a reasonable excuse nor sufficient ground for petitioners to say they were not informed of the ex parte decree by their counsel, because the power of attorney signed in favour of their counsel, does not absolve their personal attendance. The conduct of petitioners show their indolence particularly not contacting their counsel within a period of one year commencing from the date of ex pane decree. It is an established proposition of law that law favours the vigilants and not the indolents. The petitioners also did not apply for condonation of delay in the trial Court. Apparently their application for setting aside the ex parte decree was barred by time under Article 164 of the Limitation Act, and in the absence of application for condonation of delay, there was no room left for the trial Court but to dismiss their application for setting aside the ex pane decree. Keeping in view the conduct of the petitioners, the unexplained. delay in filing the application without a prayer for condonation, for setting aside the ex parte decree and the grounds taken in their said applications. The impugned orders of both the lower Courts are not open to interference of this Court. The instant revision petition is, therefore, dismissed in limine. A.A./2244/P Revision dismissed