' MUHAMMAD REAZ AKHTER CHAUDHRY, C J.---This appeal with leave of the Court is directed against the judgment of the Shariat Court dated 17-3-2004, whereby the appeal filed by the appellant against the judgment and decree of the learned Judge Family Court Rawalakot dated 9-12-2003 was dismissed.
2. The brief facts diving rise to the instant appeal are that one Mst. Farzana Akhter brought a suit for the recovery of Rs,80,000, which was amount of dower, against the appellant, herein, in the Family Court Poonch, Rawalakot. In this case the appellant (defendant) did not appear before the trial Court therefore ex parte proceeding was ordered against him. After the trial of the suit, ex parte decree for the dower of Rs,80,000 was passed against him and in favour of Mst. Farzana Akhter on 214-2000.
3. On 25-6-2002 the appellant moved an application for setting aside the ex parte decree dated 21-7-2000. This application was dismissed by the trial Court on the ground that the decree-holder (Mst. Farzana Akhter) was not arrayed as a party. Subsequently on 23-8-2002 another application was moved by the appellant for setting aside the ex parte decree dated 21-7-2000. This application was dismissed by the trial Court being time-barred vide order dated 9-12-2003. Feeling aggrieved from the said order of the trial Court, the appellant filed an appeal in the Shariat Court of AJ&K which was dismissed vide judgment dated 17-3-2004. Now this appeal has been filed against the aforesaid judgment of the Shariat Court.
4. Mr. Asghar Ali Malik, the learned counsel for the appellant, strenuously argued that the ex parte decree was passed against the appellant on the basis of a proclamation published in some weekly newspaper, therefore, the appellant could not gain the knowledge about the institution of suit.
When the appellant came to know that an ex parte decree has been passed against him, then he immediately obtained the copy of decree and applied for setting aside the ex parte decree. He submitted that the limitation shall start from the date of knowledge. Thus his appeal was within time. It was further submitted by the learned counsel that it has been clearly stated in the application that when the appellant gained the knowledge about the ex parte decree, then he immediately obtained the copies and moved an application for setting aside the ex parte decree.
The lower Court has failed to consider this important aspect of the case. It was further submitted by the learned counsel that the appellant had also craved for the condonation of delay and the application of appellant was supported by an affidavit but it has not been considered by the lower Court.
5. While controverting the arguments of the leaned counsel for the appellant, Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondents, contended that the judgment of the lower Court is perfectly legal and is based on sound, cogent and sagacious reasoning, therefore, it does not require any indulgence by this Court. It was next contended by the learned counsel that rule 13 of the AJ&K Family Court Procedure Rules, 1998 (hereinafter to be referred as Rules of 1998) clearly provides limitation of 30 days for moving an application for setting aside the ex parte decree. In the instant case the application was moved after about two years. It was next submitted by the learned counsel that the limitation provided in the Rules of 1998 is different from the limitation provided in 1st Schedule of the Limitation Act, therefore section 29 of the Limitation Act shall apply and in case of application of section 29, the lower Court has no jurisdiction to condone the limitation under section 5 of the Limitation Act. Therefore the lower Court has rightly dismissed the application being time-barred.
6. We have heard the learned counsel for the parties and perused the record and have given our utmost thought to the respective arguments advanced by the learned counsel for the parties. The primary question requiring determination in the instant case is whether the limitation shall start from the date of knowledge or from the date of decree? In the instant case, ex parte proceedings and decree were passed under the Rules of 1998 and Rule 13 of the said Rules contained that "an application for setting aside ex parte decree should be filed within 30 days from the date of passing of decree or decision". For comprehending it properly, we would like to reproduce rule 13 of the Rules of 1998 which reads as follows:-- "Ex parte decree and proceedings.---Ex parte decree or proceedings may, for sufficient cause shown be set aside by the Court on application made to it within thirty days of the passing of the decree or decision."
7. The aforesaid rule clearly contains limitation of 30 days from the date of decree or decision.
Therefore no question about the date of knowledge arises at all. In this case the limitation shall start from the date of decree. In the instant case the decree was passed on 21-7-2000 while the application for setting aside the ex parte decree was moved on 25-6-2002 after about two years, therefore, it was hopelessly time-barred. As far the contention of the learned counsel for the appellant that an application for condonation of delay was moved and it was enjoined upon the lower Court to condone the delay on the ground, that the appellant could not gain the knowledge about the institution of suit and the decree is concerned, it has no substance for the reason that the Family Court has no jurisdiction to condone the limitation under section 5 of the Limitation Act.
It would not be out of place to mention here that in the instant case the limitation for setting aside the ex parte decree was provided through a special law, i,e, the Rules of 1998. Section 13 of the said Rules clearly contains that the application should be moved within the period of 30 days. Now the question emerges whether the limitation provided under rule 13 of Rules of 1998 is, different from the limitation provided in 1st Schedule of the Limitation Act. If it is different, then section 29 of the Limitation Act shall apply. In the instant case, as stated above, the limitation under the Rules of 1998 is 30 days while the limitation for setting aside an ex parte decree or order under Article 164 of the Limitation Act is 90 days. Therefore it could safely be said that the limitation provided in the Rules of 1998 is different from the limitation provided in 1st Schedule of the Limitation Act. Therefore section 29 of the Limitation Act shall apply to the instant case. Section 29(2) of the Limitation Act clearly contains that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed thereof by the First Schedule, the provisions of section 3 shall apply. It further contains that the provisions contained in section 4, sections 9 to 18, and section 22 shall also apply unless the application of these provisions has not been expressly excluded by such special or local law. For having proper perception, we would like to reproduce section 29(2) of the Limitation Act which is as under;--- "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law---
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
8. The aforesaid provision of law clearly conveys that where a special or local law provides a different period of limitation from the period prescribed in 1st Schedule of the Limitation Act, then section 5 of the Limitation Act shall not apply. If the period prescribed by special law is the same as that prescribed by Limitation Act, then section 29 of the Limitation Act shall not apply. This view finds support from a case reported as Sher Ali and 20 others vs. The Manager P.I.D.C. Collieries Quetta and others [PLD 1973 Quetta 35]. The aforesaid report clearly contains that when the period of limitation under a special statute is different from the period prescribed in 1st Schedule of the Limitation Act, only then section 29 of the Limitation Act shall apply. Section 29(2) clearly contains the provision of Limitation Act which shall apply in case a different period of limitation is provided under special law and section 5 of the Limitation Act does not find any place in subsection (2) of section 29 of the Limitation Act. Therefore the aforesaid provision clearly contains that in a case where a different period of limitation has been provided under a special law, then section 29 of the Limitation Act shall apply. Same like proposition arose before the High Court of Azad Jammu and Kashmir in a case titled Azad Government and others v. Muhammad Shafi [PLD 1971 AJ&K 33] wherein it was held as under:-- ' Perhaps the applicant is making out a case under section 5 of the Limitation Act for extension of the time of limitation prescribed for a reference application. This may be a sufficient cause, within - the meaning of section 5, Limitation Act for not making the reference application within the prescribed time but section 5, Limitation Act does not apply to the Land Acquisition Act which is a Special Act and prescribes its own period of limitation for a reference application. Section 29 of the Limitation Act, subsection (2) provides that:---
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the, period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law---
(a) the provisions contained in sections 4, sections 9 to 18, and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
' So it is clear from clause (b) of subsection (2) of section 29, Limitation Act, that section 5 does not apply to the Land Acquisition Act which is a Special Act. The applicant-respondent is not entitled to an extension of time even if his allegation be correct."
9. The aforesaid report clearly contains that where the limitation is provided under a special law, then section 29 of the Limitation Act shall apply. It did not contain that section 5 of the Limitation Act shall also apply, therefore, where a different limitation has been provided under a special law, then section 5 of the Limitation Act shall not be applicable and the Court has no jurisdiction to condone the limitation. In the instant case, as stated above, a different period of limitation has been provided under rule 13 of the Rules of 1998 than the limitation provided in Article 164 of the Limitation Act. Therefore, section 29 of the Limitation Act was applicable in the present case. As stated above, section 29(2) has excluded the application of section 5 of the Limitation Act, therefore, the lower Court had no jurisdiction to condone the limitation while invoking the powers under section 5 of the Limitation Act. It is also pertinent to note that where a special or local law prescribes a different limitation from the 1st Schedule of the Limitation Act, then section 3 of the Limitation Act shall apply which clearly contains that every suit, appeal and application moved after the period of limitation prescribed thereof shall be dismissed, although the point of limitation has not been taken up by the defence, which means that it is the paramount duty of the Court to ensure whether the suit, application or appeal is within time and if the Court finds that any suit, application or appeal is not within the prescribed period of limitation, then the Court has to dismiss such suit, application or appeal despite the fact that no such plea has been taken by the defendant. Where a limitation is provided under special law and any cause is tiled after the period of limitation, then it is the duty of the Court to dismiss the same while invoking the powers under section 3 of the Limitation Act. This view finds support from a case reported as Manmatha Nath Biswa s v. Emperor [AIR 1933 Calcutta 132].
10. It also could not be ignored that against the ex parte judgment, prior to present application, another application was moved by the appellant on 25-6-2002 for setting aside the ex pane decree which was dismissed by the trial Court and no appeal or revision was filed against that order of the Family Court. Therefore the order of Family Court regarding dismissal of application for setting aside the ex parte proceedings has already attained finality after which the present second application before the lower Court was not maintainable.
11. The nutshell 01' the above discussion is that the application for setting aside the ex parte decree was hopelessly time-barred and the lower Court had no jurisdiction to condone the limitation.
Therefore the lower Court has rightly dismissed the appeal. Thus finding no force in this appeal, it is hereby dismissed.