1988 MLD 1518 (PLP)

The petitioner‑defendant took part for some time in the suit brought against him. He absented on 5‑9‑1983 when he was proceeded against ex parte. Later on, the proceedings culminated into an ex parte decree dated 28‑9‑1983. He brought an application on 30‑9‑1984 for setting aside the ex parte decree. Alongside he moved an application under section 5 of the Limitation Act for condonation of delay of almost a year. Copy of the application at pages 26‑27 of the present file is incomplete whereas that of the application under Section 5 of the Limitation Act was not appended. It is thus not clear as to what precise grounds were taken for getting the ex parte decree set aside or to condone the delay.

2. It appears .from the impugned order that the respondent opposed the application primarily on the ground that it was hopelessly barred by time. The Courts below accepted this contention and found that it was much beyond the period of thirty days provided by Article 164 of the Limitation Act and dismissed it.

3. Mr. A.W. Butt counsel for the petitioner pointing towards a number of adjournments allowed to the opposite party maintained that he had not been dealt with even handedly in showing indulgence and that though once the respondents were burdened with costs, yet they were allowed adjournment even without payment thereof. This is how he claimed that refusal to grant adjournment to the petitioner was not only arbitrary but also oppressive. Lastly, he urged that the limitation for the type of application moved by the petitioner was three years as provided in Article 181, and not thirty days under Article 164 of the Limitation Act, which in terms did not apply to it. The distinction between the two, according to him, was that while Article 164 applied to ex parte proceedings taken on the first date of hearing when despite service of the summons the defendant failed to appear, Article 181 was attracted to a default in appearance of the defendant during subsequent proceedings. He placed reliance upon Fida Hussain Shah v. Muhammad Rafiq Shah 1987 PSC 329; and M/s. Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21, in this behalf and added that the application moved on 30‑9‑1984 to set aside the decree dated 5‑9‑1983 was within the period of three years provided by Article 181 of the Limitation Act. On this view of the matter he claimed that there was no occasion to have asked for condonation of delay invoking Section 5 of the Limitation Act.

4. I have carefully examined the case of Rehman Weaving factory where the distinction canvassed by the learned counsel was propounded m a threadbare discussion of the two Articles. The ratio was that Article 164 would apply to a case of "non‑appearance at the first hearing" and the same was derived from the phrase "where the summons was not duly served". The word "summons" was held to be "the key" to the interpretation of third column and was held to relate to the summons issued to the defendant to appear before the Court for the first hearing. A number of other cases were also referred to where primarily ex parte proceedings were taken against the defendant for his failure to appear either on the first date of hearing or on an adjourned date, but in both types of cases the plea was that the summons or as the case may be, notice was not served. The limitation for such cases was held to commence from the date of knowledge of the decree. The following excerpt from para 24 page 161 of M/s. Rehman Weaving Factory's case really contained the guiding principle to be followed:‑‑ " .When any cause is shown for non‑appearance at the first hearing whether non‑service of `summons' or any other sufficient cause e.g. an accident on the way, an act of God or act of State beyond human control, only Article 164 would apply. Limitation would commence from the date of the knowledge of the decree, when the `summons' was not duly served; otherwise from the date of the decree " The emphasis in the excerpt was on non‑service of summons in the context of the hearing so that if it was not the case of first hearing, it shall be covered by the last phrase of the quoted portion namely "otherwise from the date of the decree". The case in hand admittedly was not of failure to appear on the first date of hearing inasmuch as the defendant left for Karachi after taking part in the proceedings for some time and moved the application on return. It was also not a case of shifting the suit from one Court to another requiring notice by the transferee Court, nor of absence of the Presiding Officer causing adjournment to e a future date for which notice may have been essential. Conversely it was a case, as already remarked of sudden disappearance from the proceedings which were being taken in the same Court, before the same officer without needing summons or a fresh notice. The various cases cited in the authority did not have this element, which essentially paces the case in hand on an entirely different footing. I could say with utmost humility that the word "otherwise" used in the last phrase of the excerpt quoted above will squarely cover the present case to which, therefore, Article 164 itself shall apply.

5. Learned counsel argued that the authority divided cases into two broad based classes for getting ex parte decrees set aside, namely (i; where the default is appearance was on the first hearing and (ii) all "the remaining cases". He relied upon the following observation appearing in a sentence next following the portion of the judgment cited above. It reads:‑‑ "And the remaining cases, other than those of first hearing, would not be governed by Article 164." ' It will be appreciated that the penultimate phrase "otherwise from the date of decree" of the, above‑mentioned observation apparently carried different meanings. It envisaged a class of cases by itself without having any regard whatsoever to non‑appearance on the first date of hearing due to non‑service of the summons or the notice. It clearly made Article 164 ibid, the above‑mentioned phrase will have to be totally discounted from consideration. It was indeed a formidable expression forming part of the same judgment visualising a situation to which the same Article 164 was held applicable. It has to be harmonised with the observation relied upon by the learned counsel and since the Article itself provides room for applying it to cases other than those of first hearing, it shall be assumed that this was the reason why the august Supreme Court pertinently adopted the phrase in their erudite judgment. Secondly though it was appreciated that Article 181 will provide a long duration of three years to a defendant, yet rationalisation of the oddity was left to the wisdom of the Legislature. Remarks to this effect appeared in para 25 of the judgment. Apparently what looked strikingly unusual was the longer period provided in Article 181, but another aspect as well needed consideration. The comparison was between two types of defendants; those not served with the summons, and those disappearing‑‑deliberately in the course of hearing. If for a defendant who did not receive summons, only a period of thirty days was provided, it will indeed be iniquitous to provide a much longer period of three years to a defendant, who not only knows of the institution of the suit but has actually been taking part in the proceedings, and suddenly disassociates by purposely withholding himself. His knowledge of the pendency, his conduct, in his taking part in the proceedings for a length of time and his sudden spurt in keeping himself away, would be the ingredients which should ordinarily deny him the leisure of three years' long period. In fact he is supposed to be extra vigilant to pursue the case, trial whereof be may have been facing for sometime and had no reason to leave it unattended. He does not deserve leniency for he should know that the suit may have culminated into a decree against him. The third element, equally important, is the purport of all rules to arrange early disposal of cases. Disappearance in the midst of trial was to keep away at an interim stage of the proceedings. Initially such a defendant shall be proceeded against ex parte for completion of the remaining part of the trial, he could come and ask for setting them aside. Of course, if he does not do it, the proceedings shall result in an ex parte decree. To wait for long three years for an application essentially meant to correct an interim order would indeed be too much in the context of quick disposal of the suit. The defendant will then have a right to bring such an application a day before the expiry of these three years in his quest to prolong the disposal of the case almost for an indefinite period. Thus putting a span in smooth trial of a case so as to make it linger for three years to enable a defaulting defendant to avail the remedy under Article 181 of the Limitation Act, will not be conducive to the interest of speedy justice. Learned counsel could not offer any explanation for this anomaly, nor could he point out any discussion. From the judgment of the Supreme Court to remove this oddity. The rule laid down in Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1952 Lah. 456, was not specifically overruled by the Supreme Court, although some discussion was made about its implication. Anyway it will be deemed to have not been upset and there was room to follow it to meet cases other than those of first hearing. It made Article 164 ibid applicable to a defendant who absented on an intermediate date. The phrase quoted above from the Supreme Court judgment probably accorded approval to it. FOR all these reasons there is no merit in the revision petition and the same is dismissed in limine M.Y.H/G-167/L Petition dismissed.