2016 PLP 119 (YLRN)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioners have called in question the judgment/order dated 29.4.2011 passed by learned Additional District Judge, Paharpur, District D.I. Khan vide which the appeal filed by the respondent was accepted, judgment/order dated 09.10.2010 of learned Civil Judge, Paharpur, District D.I. Khan and the ex-parte decree dated 16.7.2009 were set aside and the case was remanded to the learned trial Court for decision afresh on merits after recording evidence of the parties.

2. Brief facts giving rise to the instant revision petition are that the petitioners/ plaintiffs filed a suit against the respondent/defendant for specific performance of contract in respect of the suit property fully detailed in the heading of the plaint.

3. The respondent/defendant appeared and submitted his written statement whereafter he absented himself and was eventually proceeded against ex-parte on 27.5.2009 and after recording ex-parte evidence, the learned trial Court passed ex-parte decree in favour of the petitioners/plaintiffs on 16.7.2009.

4. On 17.4.2010, the respondent/defendant submitted an application for setting aside ex-parte decree dated 16.7.2009 which was contested and ultimately dismissed by the learned trial Court vide order dated 09.10.2010.

5. Aggrieved of the order dated 09.10.2010, the respondent/defendant preferred an appeal which was accepted and the case was remanded to the trial Court vide impugned judgment/order dated 29.4.2011, hence the instant revision petition by the petitioners/plaintiffs.

6. Learned counsel for the petitioners contended that the suit was filed on 13.10.2004 and the respondent/defendant put appearance, filed written statement thereafter absented himself, therefore, ex-parte proceedings were initiated against him on 27.5.2009 which later on culminated into ex-parte decree dated 16.7.2009. The respondent/defendant filed application on 17.4.2010 for setting aside ex-parte decree after lapse of about nine months and for this very reason, the application was dismissed by the trial Court, however, the appellate Court has reversed the findings of trial Court by exceeding jurisdiction vested in it. He argued that the order of the appellate Court be reversed and that of the trial Court may be restored.

7. Conversely, learned counsel for the respondent argued that the period prescribed for filing application for setting aside ex parte decree in cases where defendant appeared and then absented, was three years under Article 181 of Limitation Act and not thirty days. He relied on PLD 1981 SC 21 and PLD 1986 Peshawar 81 and contended that the respondent suffered from cardiac attack and due to this reason, he could not appear before the Court. He supported the impugned judgment of the learned appellate Court and argued that the cases are to be decided on merits rather than technicalities and every party shall be given fair opportunity of being heard.

8. I have considered the arguments of learned counsel for the parties and perused the record with their valuable assistance.

9. The petitioners/plaintiffs had filed the suit for specific performance of contract on 12.10.2004. The respondent/defendant contested the suit by filing written statement on 09.5.2009 and after that absented himself for the reason best known to him and in the meanwhile he was placed ex-parte on 27.5.2009 due to his absence, evidence was recorded and the proceedings culminated into ex-parte decree on 16.7.2009. Later on he moved application for setting aside ex-parte decree on 17.4.2010, with a delay of almost nine months which is not explained. The application for setting aside ex-parte decree reveals that due to transfer of case from D.I. Khan to Paharpur, notice was issued to the respondent/defendant, however, during this period, he suffered from cardiac attack and was advised bed rest, therefore, he could not appear before the Court. No document has been annexed with the application to justify its contents. If the application is taken on its face value, the inability of the respondent/defendant due to cardiac problem has not been stated to have remained for more than nine months. The application is silent as to when he suffered from disease and for how much time he remained in any hospital or was advised bed rest. Mere bald allegation is made which cannot be taken as gospel truth keeping in view the conduct of the respondent/defendant.

10. The appellate Court has been swayed by the consideration other than judicial. The judgment of the august Supreme Court (PLD 1981 SC 21) relied upon by the appellate Court wherein period of three years under Article 181 of the Limitation Act was provided in cases where defendant put appearance before the Court and then absented himself. The Judge is supposed to wear all the laws on the sleeves but strange enough that he relied on the judgment not in field and ignored the latest view of the august Supreme Court. The impugned judgment is being passed on 29.4.2011 by the learned Additional District Judge whereas the judgment being relied upon has been distinguished through judgment of august Supreme Court in Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609) wherein their lordships observed that instead of Article 181, Article 164 of the Limitation Act is to be applicable wherein thirty days period is provided for filing application. It was also observed that the respondent had the full knowledge of hearing of case and ought to have approached the Court within thirty days in view of the provisions of Articles 163 and 164 of the Limitation Act. The observations of the Honourable Supreme Court are reproduced below for ready reference:- "The arguments so raised by learned counsel for respondents do not require detailed consideration in view of the fact that in the applications submitted on their behalf for setting aside ex-parte order/decree or for restoration of suit, no such assertion was made at all. Contrary to it, their plea was that the date of hearing i.e. 131h March, 2000 was never communicated to them and upon attaining knowledge, they had filed the applications. At this juncture it is important to note that in both the cases no request was made seeking condonation of delay in approaching the Court for setting aside the other adversely operating against them in view of section 5 of the Limitation Act, in both the cases. Admittedly, the applications were beyond the period of limitation i.e. 30 days under Articles 163 and 164 of the Limitation Act, therefore, in our opinion it was incumbent upon them to have availed the benefit of section 5 of the Limitation Act. In view of above discussion, we are inclined to hold that as in the instant case, the respondents were duly served, they had fully knowledge about hearing of the case in view of the legal provisions noted hereinabove, as such for setting aside the order, dated 13th March, 2000, whereby their suit was dismissed in default as well as for setting aside ex-parte decree dated 20th June, 2000, they ought to have approached the Court within 30 days in view of the provisions of Articles 163 and 164 of the Limitation Act and if there was delay in filing applications, they should have invoked the provisions of section 5 of the Limitation Act. Because respondents had not approached to the Court for setting aside orders adversely operating against them, within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, learned trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside ex parte decree. Thus, the orders being proper and legal were not revisable by the learned High Court in its appellate jurisdiction."

11. The learned Additional District Judge was supposed to be in the knowledge of the judgment delivered in 2005 while deciding the matter in the year 2011. The limitation prescribed for filing application was thirty days and it has been wrongly observed as three years under Article 181 of the Limitation Act. Moreover, the application for condonation of delay moved along with the application for setting aside ex-parte decree is also silent about any plausible explanation. Even the period during which the respondent remained under treatment of any doctor is not mentioned in the application for condonation of delay as well as for setting aside ex-parte decree. If these applications are taken as correct on their face value, even then no licence can be granted for indefinite period to a person against whom ex-parte decree has been passed, to move application any time at his whims and wishes. At least the bed rest or admission in the hospital for a specified period must have been given in the application which is lacking in the instant case. It clearly shows the conduct of the respondent/defendant and the learned appellate Court has been misled through the judgment of the august Supreme Court which is not in the field.

12. For the reasons mentioned above, the instant revision petition is accepted, the impugned judgment/order dated 29.4.2011 of appellate Court is set aside and the judgment/order dated 09.10.2010 of the trial Court is restored. Parties are left to bear their own costs. ZC/496/P Revision accepted.