This revision petition filed ,under section 115, C.P.C. Is directed against the judgment/decree dated 21-12-2002 of the learned Additional District Judge-II, Mardan whereby he accepted the appeal of the plaintiffs (respondents herein).
2. The brief facts, giving rise to this petition, are that the plaintiffs who are respondents herein brought a suit against the defendants who are petitioners herein for possession of a house measuring one Kanal, as fully detailed in the heading of the plaint and recovery of Rs,10,000 as rent of the house/price of manoeuvre. The suit was instituted on 22-7-1997 in the Court of Senior Civil Judge, Mardan, which, on the same day, was entrusted to the learned Civil Judge, 1st Class, Mardan. After checking of the plaint and registration of the case, the same day summons was issued to the petitioners for 26-7-1997. On that date, special attorney of the respondents alongwith their counsel were present. However, it was reported that the petitioners have refused to accept the service. Accordingly, the petitioners were placed ex parte and the case was fixed on 29-7-1997 for recording the ex parte evidence of the respondents. On 29-7-1997, the ex parte evidence of the respondents was recorded and they were granted an ex parte decree as prayed for.
3. On 4-9-1997, the petitioners filed an application for setting aside the ex parte decree passed against them. However, this application was dismissed in defaul: Gn. 13-9-1999. The petitioners then filed an application for restoration of application for setting aside the ex parte decree which was contested by the respondent. The learned trial Court allowed this application on payment of Rs,100 as costs vide order dated 11-5-2002. The respondents filed an appeal against this order which was accepted by the learned Additional District Judge-II, Mardan vide judgment/order dated 21-12- 2002. Hence, this revision.
4. I have heard Syed Muhammad Attique Shah, Advocate learned counsel for the petitioners, Mr. Jan Muhammad Khan, Advocate learned counsel for the respondents and have also perused the record.
5. While accepting the appeal the learned Additional District Judge was of the view that not only the very application for restoration of the application for setting aside the ex parte was time- barred but also the application for setting aside the ex parte decree was hopelessly barred by time. The findings of the learned Additional District Judge are not correct for the reason that the first application for setting aside the ex parte decree has not yet been decided and it is still pending before the learned trial Court. So for as the second application for restoration of the first application is concerned, it may be pointed out here that there is no express provision in the Civil Procedure Code for filing such an application and the same could either be filed under O.IX, R.13, C.P.C. Or more conveniently, in order to prevent the abuse of the process of the Court, under section 151, C.P.C. And such application would fall under the residuary Article 181 of the Limitation Act, 1908 under which the period of limitation is three years from the date when the right to apply accrues. In this view of mine, I am supported by a judgment of their Lordships of a Division Bench of Sindh High Court reported in PLD 1971 Kar. 182 wherein their Lordships, after examining the number of authorities on the issue, held: "The cases we have referred to above and the cases which have been discussed in Muhammad Rab Nawaz v. Muhammad Sadiq show judicial consenus in favour of the view that a second application under Order IX for restoration of a previously dismissed application under the same provision would lie, either under Order IX itself or under section 151, C.P.C. And absence in the Limitation Act of express provision for period of limitation for such applications should not stand as a bar to deprive a party of its remedy which is not expressly prohibited or by any other statute.
Further, we are of the view that in all such cases Article 181 would be properly applicable, as this Article is a residuary Article which applies to all applications for which no express provision is made in the Limitation Act.
5. It is with the utmost respect, humility and reluctance that we have had to depart from the view taken in Najam Ali v. Lal Khan and 6 others and in doing so we have been influenced by the following observations of the great jurist, Mahmood, J., in Narsingh Das v. Mangal Dubey: Courts are not to act upon the principles that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed' ."
6. The above case was followed by his Lordship of the then Acting Chief Justice of Azad J&K High Court reported in PLD 1981 Azad J&K 1(2) wherein it was held: "As there is no express provision with regard to the limitation for the second application for restoration of the application within which such an application could be filed, Article 181 of Limitation Act being residuary one, would be applicable to such an application, vide PLD 1971 Karachi 182 in this behalf which is a Division Bench case."
7. Yet in another case reported in PLD 1986 Peshawar 81 their Lordships of a Division Bench of this Court held: "We accordingly hold that in cases of applications for setting aside of the ex parte decrees other than those passed under Order IX, rule 6(1)(a), C.P.C. The law of limitation shall be Article 181 and not Article 164."
8. As the first application for setting aside of the ex parte decree was dismissed in default on 13-9- 1999 and the second application for restoration of the first application was filed on 16-6-2001, it was, therefore, filed well within three years as provided by Article 181 of the Limitation Act, as such, the impugned order of the learned Additional District Judge, Mardan dated 21-12-2002 is not maintainable in law.
9. Accordingly, this revision petition is accepted, the impugned judgment/decree dated 21-12-2002 of the learned Additional District Judge, Mardan is set aside and the order of the trial Court dated 11-5-2002 is restored.