2015 PLP 1443 (MLD)

ABID AZIZ SHEIKH, J.

This civil revision has been filed under Section 115 of the Civil Procedure Code, 1908 (C.P.C.) against the order dated 20-12-2000, whereby the learned Additional District Judge, Vehari dismissed the application of the petitioner for setting aside the ex parte judgment and decree dated 29-8-2000.

2. Brief facts are that respondent filed a suit on 27-7-2000 against the petitioner/defendant under Order XXXVII, Rules 1 and 2, C.P.C. for the recovery of Rs.55,000 on the basis of Cheque No.39905231 dated 26-6-1999 before the learned Additional District Judge, Vehari. The petitioner/defendant was issued summons under Order XXXVII, C.P.C. which was received by him in person on 29-7-2000 but he did not appear in Court, therefore, ex parte proceedings were initiated against the petitioner on 16-8-2000. The respondent/plaintiff produced oral and documentary evidence and resultantly the suit was decreed in favour of the respondent on 29-8-2000. On 16-10-2000 the petitioner/defendant filed an application under section 12(2), C.P.C. for setting aside the ex parte judgment and decree dated 29-8-2000 mainly on the ground that the petitioner/defendant was not served properly and it is only few days back that petitioner came to know about the decree when his salary was attached. On 4-11-2000 the petitioner/defendant moved application with the request that application under Section 12(2), C.P.C. may be treated as an application under Order XXXVII Rule 4, C.P.C. The aforesaid applications were dismissed by the Additional District Judge, Vehari, vide impugned order dated 20-12-2000 against which the instant civil revision has been filed.

3. It is argued that the petitioner was not served, therefore, the order for the ex parte proceedings dated 16-8-2000 and decree dated 29-8-2000 were nullity in the eyes of law. Further submits that the petitioner due to mistake of law moved application under section 12(2), C.P.C. on 16-10-2000 which should have been treated as an application under Order XXXVII, Rule 4, C.P.C. and the ex parte judgment and decree was liable to be set aside.

4. Conversely the respondent present in person argued that the suit was filed on 27-7-2000. The summons were issued to the respondents on 28-7-2000 with directions to file the petition for leave to appear and defend the suit (PLA) within ten days and the next date of hearing was fixed for 16-8-2000. Submits that the summons were duly received by the petitioner himself on 29-7-2000 but on 16-8-2000 neither any PLA was filed nor petitioner or his counsel appeared in the Court, therefore, the Court had no other option but to proceed ex parte. Submits that after recording of documentary and oral evidence the decree was lawfully passed on 29-8-2000. Further submits that the application under section 12(2), C.P.C. was without any merits and the same was lawfully dismissed by the learned Additional District Judge, Vehari. Further submits that the comparison of petitioner's signatures on the summons, received and application under section 12(2), C.P.C. are identical which proves, that the petitioner was duly served. Further argued that application under Section 12(2), C.P.C. could not be converted under Order XXXVII, Rule 4, C.P.C. Further submits that decretal amount has already been paid. Reliance is placed on "Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company" (PLD 2006 SC 226), "Messrs Dawood Cotton Mills Ltd. v. Sinclh Labour Appellate Tribunal and others" (2006 SCMR 630).

5. Arguments heard, Record perused.

6. The argument of the petitioner's learned counsel that petitioner was not duly served is not tenable, the record shows that Suit No.1419 under Order XXXVII Rules 1 and 2, C.P.C. for recovery of Rs.55000 on the basis of Cheque No.39905231 dated 26-6-199 of United Bank Ltd. Branch Chak No.67/15-L Vijianewala District Khanewal was filed on 27-7-2000. The summons was issued to petitioner/defendant on 28-7-2000 for filing of PLA within ten days as prescribed by law and next date of hearing was fixed for 16-8-2000. The perusal of summons shows that the petitioner/defendant himself received the summons on 29-7-2000. After receipt of summon the petitioner/defendant was required to file the PLA within ten days but neither the PLA was filed nor petitioner/defendant appeared on 16-3-2000, hence petitioner was lawfully proceeded ex parte and after recording of ex parte evidence the impugned judgment and decree was passed on 29-8-2000.

7. There is no cavil with the proposition that mere mentioning of wrong provision of law will not preclude the Court for granting relief, which party is otherwise entitled under the law. In this context I am fortified by the law laid down in "Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal" (PLD 2007 Lahore 377), "Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and others" (PLD 2007 Karachi 392) and "Habib Bank Limited v. Mussarat Ali Khan" (PLD 1987 Karachi 85). However in the present case even if the application under Section 12(2), C.P.C. is treated as an application under Order XXXVII, Rule 4, C.P.C., there is no reasoning given that why after service on 29-7-2000, the petitioner did not file PLA in ten days and appeared on 16-8-2000. It is not alleged in the application that on the summons petitioner's signatures are forged or someone else has signed on behalf of the petitioner. In fact the bare comparison of the signatures on the summons and the application under section 12(2), C.P.C. shows that both the signatures are identical, therefore, after service the petitioner was required under law to file PLA within ten days.

8. The appellate Court also observed that petitioner applied for certified copies of the decree dated 29-8-2000 on same day i.e. on 29-8-2000 which was supplied to him on 31-8-2000 whereas the application for setting aside decree was filed on 16-10-2000 without any cogent explanation. The petitioner despite directions, was also not in a position to give exact date of knowledge to the appellate Court. There is not a word in the revision petition to rebut the aforesaid factual finding of the appellate Court. Even in the application under section 5 of the Limitation Act (IX of 1908), neither any exact date of knowledge is given nor delay of each and every day has been satisfactorily explained from date of knowledge of the decree. In the circumstances even if the application is treated under Order XXXVII 4, C.P.C., the same being beyond 30 days from date of knowledge of decree was time barred under Article 164 of the Limitation Act 1908, as held by the august Supreme Court in judgment reported as "Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen" (2006 SCMR 631).

9. In view of the above, the order dated 20-12-2000 passed by Additional District Judge, Vehari is not perverse or arbitrary and immune from further scrutiny in Revisional jurisdiction. Accordingly, the civil revision fails and the same is hereby dismissed with no order as to costs. Requisitioned record be remitted back to the concerned Court forthwith. AG/M-225/L Revision dismissed.