2016 PLP 1646 (YLR)

IKRAMULLAH KHAN, J.

Through the instant revision petition, the petitioners have assailed the judgment and decree dated 11.6.2014 rendered by learned Additional District Judge-I, D.I.Khan, whereby the appeal filed by respondents-plaintiffs against the impugned order dated 10.10.2013 of the learned Civil Judge-III, D.I.Khan was accepted.

2. The brief facts giving rise to the instant revision petition are that the respondents-plaintiffs instituted a declaratory suit in the Court of Senior Civil Judge, D.I.Khan against the petitioners-defendants in regard to the suit land fully detailed in the head note of the plaint.

3. Petitioners contested the suit by filing their written statement. Out of divergent pleadings of the parties, the learned trial Court framed as many as nine issues including the relief. During proceedings of the suit, petitioners absented themselves, so they were placed ex parte, whereafter ex parte evidence was recorded, pursuant to which an ex parte decree was passed on 29.10.2010 by the learned trial Court. Petitioners submitted an application for setting aside ex parte decree, which was dismissed in default on 19.6.2012 and subsequently was restored on 03.9.2013. After hearing both the parties, the learned trial Court vide its impugned order dated 10.10.2013, accepted the aforesaid application, pursuant to which the ex parte decree was set aside.

4. Aggrieved therefrom the aforesaid order dated 10.10.2013 of the learned trial Court, an appeal was preferred before the appellate Court and the learned Additional District Judge-I, D.I.Khan, vide its impugned judgment dated 11.6.2014, on acceptance of the appeal, set aside the order then impugned before it, hence the instant revision petition.

5. Learned counsel for petitioners contended that the impugned judgment is against law and facts on record; that period of limitation, would be computed/reckoned thereunder the provision contained in Article 181 of the Limitation Act, while learned appellate Court has applied incorrect law of limitation for computing the period of limitation under Article 164 of the Limitation Act, fell in error of law, which has occasioned gross miscarriage of justice.

6. On the other hand, learned counsel for respondents, argued that the application under Order IX Rule 13, C.P.C., filed by petitioners in order to set aside the ex parte decree passed against them, was hopelessly time barred in view of Article 164 of the Limitation Act, therefore, the impugned judgment has been rendered by learned first appellate Court below thereafter proper appreciation of law, could not be set aside by this Court in its revisional jurisdiction.

7. I have heard learned counsel for parties and have gone through the record and proceedings of the case, in minute particulars.

8. It is admitted fact on record, which could not be rebutted by petitioners, that in pursuance of summons issued against them in the suit, petitioners through their authorized attorney had made appearance before the learned Court and had also filed their written statement, but thereafter, did not participate in the proceedings as a result of their default they were proceeded ex parte on 10.9.2008, whereafter an ex parte decree dated 29.10.2010 was passed against them. Since it was well within the knowledge of petitioners that suit was sub judice before the trial Court against them but did not vigilantly and without any plausible explanation, remained dormant for an unreasonable time to defend themselves in Court of law, in such eventuality, only Article 164 of the Limitation Act would be attracted which, provide thirty (30) days for moving an application under Rule 13 of Order IX, C.P.C.

9. The apex Court, while placing reliance on case Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), has also held a similar view in case Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandyar Khan (2008 SCMR 287) as:-- "Article 164 of Limitation Act provides 30 days to file application for setting aside ex parte decree because petitioner/defendant had participated in the proceeding before the trial"

10. This Court, in case of Khayal Badshah v. Afzal Khan and 4 others (PLD 2015 Peshawar 59) has held the same view that if summons were served upon the defendant, period to set aside ex parte decree would be governed under Article 164 of the Limitation Act which would be reckoned therefrom the date of decree and if the summons was not served, the period for moving the application under Order IX Rule 13 C.P.C. would be reckoned therefrom the date of acquiring knowledge of the ex parte decree, in both the cases, it would be thirty (30) days as prescribed under Article 164 of the Limitation Act.

11. Petitioners have filed the required application to set aside the ex parte decree dated 29.10.2010 under Article IX Rule 13 C.P.C. on 03.6.2011, which was hopelessly time barred, therefore, the impugned judgment rendered by learned appellate Court below is based on correct appreciation of law, no legal justification is available to interfere therein. For the reasons, given herein above, this revision petition is dismissed accordingly. ZC/427/P Revision dismissed.