' MAULVI ANWARUL HAQ, J.---For the purposes of order, I propose to pass in this civil revision, the pleaded facts need not be mentioned in detail. Suffice it to say that on 8-9-1999 the respondent No.1 filed a suit against the remaining respondents seeking a declaration that she is the daughter of Mst. Zubaida Bibi a predeceased daughter of Fazal Muhammad, the last male owner of the suit property, and is entitled to her Muslim Law share in the estate of the said deceased person. The petitioner was impleaded as a party on his own application and an amended plaint was accordingly filed. He filed a written statement admitting the claim of the respondent No.1 but stating that he had purchased the share of the respondent No.1 for consideration. He was proceeded against ex parte on 17-1-2004. On 16-4-2005 he filed an application for setting aside of the ex parte proceedings. This application was dismissed by the learned trial Court on 20-9-2005 holding that the application is barred by time and no application for condonation of delay has been filed. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Chicha Watni, who faithfully followed the suit and after repeating the contents of the trial Court order dismissed the appeal on 20-10-2005.
2. Learned counsel for the petitioner contends that both the learned Courts below have acted, without jurisdiction while dismissing the application on the said ground as the suit is still pending.
Precise contention is that the application was not barred by time. Learned counsel for the respondent No.1, on the other hand, has tried to argue that the application can be filed only on the date following the day on which a defendant is proceeded against ex parte.
3. I have gone through the copies of the records. Now there is no dispute that the petitioner was proceeded against ex parte and thereafter the suit was continuously being adjourned for hearing and is still pending. He filed an application on 16-4-2005 for setting aside of the ex parte proceedings. Now both the learned Courts below have held the application to be barred by time without referring to any provision of the Limitation Act, 1908, prescribing a period of' limitation beyond which the application was found to have been filed. The reason is simple because no period of limitation stands prescribed for an application for setting aside of ex parte proceedings (unlike the application for setting aside of ex parte decree which is covered by Article 164 of the Schedule to the Limitation Act, 1908). This being so, the residuary Article 181 of the Limitation Act, 1908, shall become applicable which prescribes a period of three years for such an application.
Admittedly, the application had been filed within the said period of time.
8. I have noted that such-like applications are recklessly dealt with and dismissed on the said ground resulting in unnecessary litigation in the Courts of appeal and revision between the parties while the suit remains pending without any progress. The argument of the learned counsel for the respondent that the application could have been filed on the next day to which the case was adjourned is fallacious. Now it will be seen that by its nature Order IX, rule 6, C.P.C. (whereunder ex parte proceedings are ordered) applies to the first hearing of the suit. The said provision of law has been made applicable to the adjourned hearings by virtue of Order XVII, rule 2, C.P.C. The matter came up for consideration by this Court in the case of Manzoor Ahmad Bhatti, Advocate v. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another PLD 1973 Lahore 659 and it was held that the opening phrase of Order IX, Rule 7, C.P.C. Being relied upon by the learned counsel for the respondent, is wide enough to include not only the first adjournment but also the successive adjournments given under Order XVII, rule 1, C.P.C. It was also held that rule 7 of Order IX, C.P.C. Does not provide a period of limitation for filing of an application.
9. Now assuming that the petitioner had not even applied for setting aside of the ex parte proceedings and has simply put in appearance on an adjourned date of hearing, can it be said that he would not be allowed to join the proceedings. In somewhat similar circumstances, their Lordships in the case of Police Department ' through Deputy- Inspector-General of Police and another v. Javid Israr and 7 others 1992 SCM R 1009 observed as follows at pages 1013 and 1014 of the report:-- "Since the provisions of Order IX, have been made applicable to adjourned hearing under Order XVII, C.P.C. Therefore, there may be cases in which setting aside of the earlier proceedings may not be felt necessary, for instance, if the defendant has already filed written statement and list of witnesses and is unable to put in appearance on subsequent date, his mere joining the proceedings can serve the purpose to contest the suit by cross-examining the witnesses of the opposite side and producing his own evidence. Even if he has not filed written statement, he may be in a position to secure the dismissal of the suit by raising an objection, orally, to the jurisdiction of the Court, limitation etc. In the absence of any clear provisions in the Code of Civil Procedure prohibiting the appearance and taking part in the proceedings by the defendant, proceeded ex parte there can be no legal bar to allow him to defend his rights. It is the right of every defendant and also the principle of natural justice, to be given a chance of hearing before any order is passed against his interest. The rules of procedure are meant to advance justice and preserve rights of litigants and they are not to be interpreted in a way as to hamper the administration of justice. As such, in the absence of any clear prohibition in the scheme of civil procedure denying the defendant of his right to take part at any stage of the proceedings after the order of ex parte proceedings, he can appear and defend the suit if somehow his application for setting aside the ex parte proceedings does not succeed on account of his failure to show good cause for his previous nonappearance. It is, therefore, held that the defendant who had been proceeded against ex parte can take part in the subsequent proceedings as of right."
6. For all what has been discussed above, this civil revision is allowed. Both the impugned orders are set aside and the ex parte proceedirigs ordered against the petitioner on 17-1-2094 are also set aside.
7. Before parting with this judgment, I may note here that Mr. M. Ramzan Khalid Joya, Advocate, has given an undertaking assuring that his client would see to it that no undue delay is caused attributable to him in the decision of the suit. A copy of this judgment be accordingly remitted to the learned trial Court who shall take all steps to decide the suit before the commencement of the Summer Vacations, 2006. No orders as to costs.
8. The office is directed to circulate copies of this judgment to all the District Judges in the Province, for future guidance in such-like matters.