1. ' The above captioned revision petition arises out of the following facts:-- ' Abdul Razzaq, respondent, herein brought a suit for possession in respect of suit land against respondents in the Court of Additional Sub-Judge, Mirpur on 2-3-1999. In response to the process, the petitioner herein who was defendant No,11 in the suit appeared on 21-10-1999 and was directed by the trial Court to file written statement on 22-11-1999. The petitioner did not appear on the aforesaid date thus, was proceeded ex parte. It may be mentioned that the suit was still at initial stage as respondents Nos.12 to 15 were still to be summoned. The suit remained pending for one reason or the other. On 4-10-2004, an application for setting aside ex parte proceedings was moved on behalf of the petitioner/defendant in the trial Court. It was averred that Raja Hassan Akhtar, Advocate, was engaged by respondents Nos.1, 2, 4, 6, 7 and 9 including the petitioner/defendant for prosecution of the case, however, inadvertently the defendant could not sign the power of attorney and remained under the impression that the same has been signed by him too. It was claimed that the defendant appeared on the last date and engaged Ch. Muhammad Azam Khan, as his Advocate and came to know about the ex parte proceedings. It is claimed that in the suit valuable rights of defendant/petitioner are involved in the suit and ex parte proceedings could not be get set aside under a bona fide impression that the suit is also being defended by Raja Hassan Akhtar, therefore, the order may be recalled and the petitioner be allowed to file the written statement. The application is supported by an affidavit of the applicant ' The respondents filed objections to this application on 18-10-2004. The learned trial Court heard the parties and vide order, dated 8-12-2004 rejected the application, hence, this revision petition.
2. ' Ch. Muhammad Azam Khan, the learned Advocate appearing for the petitioner inter alia contended that a definite stand was taken by the petitioner in the application which was supported by an affidavit, therefore, it was enjoined upon the trial Court to provide an opportunity to the applicant to substantiate the facts stated in the application. The learned Advocate contended that the findings of the trial Court that no sufficient cause is available without recording the evidence was unwarranted and erroneous. The learned Advocate further contended that the objections of the other side were not supported by any affidavit, therefore, the stand of the petitioner was liable to be accepted.
3. ' Ch. Reaz Alam, the learned counsel for the other side, controverted the arguments and submitted that the application was time-barred which has been made after about 4 years. The learned counsel submitted that defendant remained prosecuting the case up to the apex Court and did not bother to move an application for recalling the ex parte order. The learned counsel contended that the petitioner/defendant was bound to show a sufficient cause for setting aside the ex parte order. The learned counsel submitted that the order of the learned Civil Judge does not suffer from any legal infirmity, therefore, needs no interference.
4. ' I have considered the respective arguments of the learned Advocates for the parties and perused the record with my utmost care.
5. ' A perusal of record and the impugned order reveals that the learned Judge rejected the application on the ground of limitation. The application, admittedly has been filed after about four years. It appears that the learned Sub-Judge was under the impression that limitation for setting aside an ex parte order/proceedings was 90 days, as is prescribed in Article No,164 of Limitation Act. After considering Article No,164 of the Limitation Act, I am of the view that this Article was not applicable for setting aside the ex parte proceedings or order. The said Article is attracted only when an application is made for setting aside an ex parte decree under rule 13, Order 9 of the C.P.C.
6. There are divergent views on the subject. One view is that no limitation is provided for setting aside an ex parte order in the C.P.C. Or in the Limitation Act and the application can be made at any time before passing the ex parte decree while the other is that residuary Article 181 would be applicable.
7. A reference can be made to the following cases:-- ' 1989 M LD 2173; 1993 M LD 1101; 1994 M LD 1947; 1991 M LD 261; 1993 M LD 227.
8. ' In Shah Nawaz's case 1989 M LD 2173, it was opined that there is no limitation prescribed for filing an application under Order 9, rule 7 of the C.P.C. Either in the C.P.C. Or in the Limitation Act. In these circumstances, the residuary Article of the Limitation Act namely, Article 181 will be applicable which prescribes a period of 3 years for filing of such an application. In Wali Muhammad's case 1993 M LD 1101, the same view was reiterated and it was opined that Article 181 of the Limitation Act would be applicable. The same view was again followed in Muhammad Arif's case 1994 M LD 1947 and in Raza Muhammad's case 1991 M LD 261. In Faridud Din Masood's case 1993 M LD 227, Mr. Justice Ch. Mushtaq Ahmed Khan, Judge (as his Lordship then was) opined that for setting aside an ex 'parte proceedings, Article 181 of the Limitation Act would be applicable and the trial Court should also decide the question of sufficiency of the cause of nonappearance of the defendant, after framing issues and recording the evidence. It is useful to reproduce the relevant observation of the learned Judge which is as under:-- "(3) .It is quite clear that the learned trial Court did not decide the question of sufficiency of the cause of non-appearance of the petitioner as well as his learned counsel specifically nor any issue was framed nor any evidence was allowed to be led by the petitioner. The cause mentioned in the application which is supported by an affidavit is sufficient in law and therefore, there was a sufficient cause for absence of the petitioner as well as his learned counsel on the date of hearing.
9. The application is not barred by time inasmuch as such an application is governed by Article 181 of the Limitation Act, which provides period of three years, and therefore, finding of the learned trial Court is illegal and is not maintainable. Finding of the learned trial Court to the effect that the application could have been moved only on the next date of hearing to the one on which the ex parte proceedings were ordered is also misconceived. The words used under Order 9, rule .7 do not so contemplate. The application for setting aside of the ex parte proceedings can be filed at any time and by any date prior to the passing of ex parte decree." (underlining is mine).
10. 'As the controversy in hand is covered by the provisions contained in Order 9, rule 7 of the C.P.C., therefore, in light of the aforementioned case-law, it can safely be concluded that an ex parte order or proceedings can be set aside at any time before conclusion of the trial, provided that the application is made within a period of 3 years, as is provided by Article 181 of the Limitation Act. It may be observed that in some of the cases the superior Courts have liberally construed the provision of rule 7 of Order 8 and opined that a defendant against whom the ex parte proceedings have been taken, can join in the subsequent proceedings as of right without assigning any reason.
11. Such a defendant is also entitled to cross-examine the witnesses and can argue the question of maintainability of the suit. In KLR 1982 Civil Case 81, it has been opined that such defendant is entitled to lead evidence in proof/disproof of the issues in light of rule 11 of Order 9 of the C.P.C. A contrary view has been taken by Mr. Justice Gul Zareen, Judge of Lahore High Court in 1994 M LD 1947. In my estimation, the rules of procedure are meant for advancement of justice and the parties cannot be non-suited for technicalities of law when their valuable rights are sub judice r before the Court. In Manzoor Ahmed Bhatti's case PLD 1973 Lah. 659, a learned Judge of the Lahore High Court has explained this proposition in detail. It will be useful to reproduce the relevant observation of the learned Judge which is available at page 663 of the report and is as follows:-- ".... Rule 7, therefore, empowers the Court on the defendant's appearing and showing good cause for his previous nonappearance, to hear the defendant in answer to the suit as if he had appeared on the date of first hearing. In deciding such application the Court should liberally exercise its powers in favour of the defendant because as observed by their Lordships of the Supreme Court in Landhi Industrial Trading Estate Ltd. v. Government of Pakistan (1), the rules of procedure as laid down in C.P.C. Are principally intended for advancing justice and not for retarding it on pure technicalities. The object of the Code is to give the parties to a litigation full opportunity for being heard and to advance their intention the provisions of Order IX, rule 7 should be generously construed."
12. In the present case, the defendant having stated reasons for nonappearance whatever their worth was, it can be decided after providing an opportunity to the defendant to substantiate the same.
13. The failure on the part of the trial Court and disposal of the application in a summary manner, was unwarranted and not a proper exercise of jurisdiction. Though, in the present case application has been filed after more than three years, but it is clearly stated in the application that on the last date of hearing Ch. Muhammad Azam Khan was appointed as counsel who filed power of attorney on behalf of the petitioner then it was disclosed that ex parte proceedings have been taken against him. The reply of the respondents herein is not supported by any affidavit rather strengthen the case of the petitioner. It is stated in objections that respondent No,10 was father of the petitioner herein. This respondent was represented by Raja Hussan Akhtar, Advocate, thus, it can be believed that father (respondent No,10) and the petitioner herein might have engaged the same counsel. In absence of a counter-affidavit, these facts cannot be brush aside which constitute a good cause for previous non-appearance of the petitioner, and in view divergent opinion on the applicability of Article No,181, is a sufficient cause to condone the delay under section 5 of the Limitation Act.
14. In view of what has been stated above, accepting the revision petition, the impugned order of the trial Court is vacated. The trial Court is directed to proceed with the matter after receiving the written statement of the defendant/petitioner. No order as to costs.