' DR. SAJID QURESHI, J.---This is a Civil Revision under section 115, C.P.C. Against the judgment and decree dated 2-6-2004 passed by Mr. Muhammad Tariq Abbasi, Additional District Judge, Islamabad, in Civil Appeal No,85/2003 "Mst. Asia Bano v. Javed Akhtar" and against the order dated 22-5-2003 passed by Mr. Muhammad Akram Sheikh, Civil Judge, Islamabad, whereby the application under Order IX, Rule 13 read with section 151, C.P.C. For setting aside ex parte decree passed by the learned trial Court on 18-10-2001 was dismissed. Brief facts are that the respondent filed a suit for possession through pre-emption against the petitioner on the ground that the respondent is a co-sharer in the land adjacent to the suit-land. The plaintiff has resisted this suit and 'submitted written arguments. The petitioner from the record was absent and was proceeded against ex parte on 22-6-2000. On 12-9-2000 an application was filed by the applicant for setting aside the ex parte proceedings, which were contested and after hearing arguments of both the sides, the petition was fixed for orders for 24-7-2001. On this date the learned Presiding Officer was on leave and case was adjourned for order for 30-7-2001. On this date, the petition was dismissed on merits. It reveals from the record that thereafter five dates of hearing were fixed during proceedings of the main case and no one appeared on behalf of the applicant and ultimately suit was decreed ex parte on 18-10-2001. The petitioner came to know on 21-1-2002 that an ex parte decree has been passed against her on 18-10-2001. The petitioner moved an application for setting aside ex parte judgment and decree on 31-1-2002. The learned trial Court dismissed the application for setting aside ex parte decree as hopelessly time-barred. The petitioner then appealed to the learned ADJ, Islamabad, who vide decision dated 2-6-2004 concurred with the learned trial Court decision and dismissed the appeal as having no merits.
2. The learned counsel for the petitioner stated that the sole ground which titled the learned trial Court was that the application was barred by time and vehemently argued that no one should be condemned unheard. Historically, the petitioner had put in her appearance and filed the written statement, the issues were framed on 20-5-1996 and the case was fixed for evidence of the respondent. Thereafter, on 2-6-1997 the petitioner did not put in her appearance before the learned trial Court, hence she was proceeded against ex parte, which later on set aside on two occasions and on the latter occasion, the suit was decreed on 18-10-2001 for setting aside of the said decree. An application under Order IX, Rule 13, C.P.C. Was moved, which had been dismissed through the order dated 22-5-2003 by the learned Civil Judge Islamabad. That the petitioner appeared on 24-7-2001, and since the Presiding Officer was not available, the reader had informed her that a notice would be given to her for the next date of hearing which in fact was on 30-7-2001.
The petitioner did not receive any notice, summons, nor any information after 24-7-2001, and only the petitioner came to know about the case on 25-1-2002, once an ex parte decree has been passed against her. The petitioner prays that the order dated 30-7-2001 dismissing the application of the petitioner for setting aside ex parte order, judgment and decree dated 18-10-2001 are liable to be set aside. The absence of the petitioner was not wilful and it was purely on instructions of the reader that she failed to appear on the next date.
3. The learned counsel further stated that the ex parte judgments, decrees and order passed by the learned trial Court lacks sufficient evidence and suit was liable to be dismissed. That both the learned lower Courts have failed to follow the law laid down by the Superior Courts and thus committed the serious irregularities/ illegalities in passing the impugned judgments, decrees and orders. The learned counsel relied on 1993 SCMR 1092 Noshairee Khan v. Saeed Ahmad Shah, in which it was held that the date could only be the date to which the hearing is adjourned, if, the appeal has been adjourned to such a date by Court itself and not by the reader or Moharrir. Further he relied on 2001 CLC 591 Innayat Masih v. Munshi Masih, in which it was held that and adjournment cannot be made by the reader of the Court. In PLD 1990 SC 713 Kamran Co. v. Messrs Modern Motors in which it was held that while the Civil Judge was on leave the reader of the Court had adjourned the cases and the provisions of Order XVII, Rule 5 of C.P.C. Were not complied with as no slip was handed over to the parties by the reader of the Court. Under this rule it clearly stipulates that when the Presiding Officer is not available, the ministerial officer of the Court shall handover to the parties a slip specifying the other date fixed for proceedings. In 1985 CLC 2984 Mst. Qamar Sultan v.
Saeed Murtaza, in which it was held that it is imperative for the Court to give the appellant notice of the next date of hearing. The learned counsel also argued that Articles 164 and 181 of the Limitation Act, 1908 were discussed in (PLD 1981 SC 21) M/s. Rehman Weaving Factory v. IDBP. He contended that the period of limitation for filing an application for setting aside ex parte decree was three years under Article 181 of the Limitation Act and not thirty days as under Article 164. He relied on 2001 CLC (Peshawar) 1976 "Fiaz Rasool v. Government of NWFP" that since the application for setting aside of the ex parte judgment and decree was moved on 31-1-2002 i.e, after three months and 13 days this is allowed since it is within the period of three years. The learned counsel also relied on 1995 SCMR 218 (Supreme Court of Pakistan) Muhammad Qasim & others v. Mojuddin and others, in which the reader of the Court and not the Presiding Officer has given a date and further the remedy was under Article 181 and not 164 of the Limitation Act, 1908. The learned counsel also contended that Courts should adjudicate the matters placed before them on merits and to deviate from this course only if they find that the process of the Court was being abused. Dismissal of case for non prosecution should normally being the exception and not the rule. The learned counsel relied on 1977 CLC 1080 Muhammad Afzal v. SBFC and 1992 SCMR 707 (Supreme Court of Pakistan)
"Hashim Khan v. NBP supporting the above contention.
5. The learned counsel for the respondents stated that the record indicates that the petitioner had been ahsent, on occasions, hence ex parte proceedings were initiated against her. After dismissal of the application the case remained pending for the evidence of the respondent and for arguments on 12-9-2001, and other dates. But yet again no one from the petitioner had put in appearance nor any representative or counsel. The application for setting aside of the ex parte judgment and decree was moved on 31-1-2002 three months and 13 days after. Relying on the law as in Article 164 of the Limitation Act, 1908, which provides a period of thirty days and the period is from the date of passing of the decree or of the knowledge. The ground taken by the petitioner was that the reader of the Court had told the petitioner that for her appearance notice would be issued to her. Some five adjournments were granted spreading over a period of two months and eighteen days and it was the duty of the petitioner to pursue her matter and to ensure appearance before the learned trial Court on each and every date of hearing. Further, he stated that the petitioner did not bother to appeal after 24-7-2001 and even after passing of the decree the application was filed after three months and 13 days. He relied on 2000 SCMR 657 (Supreme Court of Pakistan) The Province of Punjab v. Muhammad Anwar, (PLD 1998 Peshawar 43) Ata-ur-Rehman Baig v. Barey Khan, (1998 CLD 283) State Life Insurance Corporation of Pakistan v. Mst. Shakar Khatoon, in which the defendants were duly served with summonses and they had taken definite stand in defence of suit, provision of Article 164, Limitation Act, 1908, prescribing 30 days' period the date of decree would be attracted for setting aside the same. Where the summonses were not duly served but defendant had gained the knowledge of decree, the period of limitation would commence from knowledge of decree.. Article 181 (supra), prescribing period of 3 years for application for which no period of limitation was provided was not attracted in this case. Finally he relied on (1988 MLD 1518)
Gulzar v. Hata, in which the petitioner disappeared on an intermediate date for proceedings which were being taken in same Court before the same officer as such needed no summons and no fresh notice. The learned counsel finally stated that the decree have been passed at the trial Court level, payments and Mutations already made and that in these circumstances, it is proper that the civil revision to be dismissed and the orders of the learned ADJ and the Civil Judge, Islamabad, be upheld.
6. In view of the above, the crux of the matter is that whether the petitioner was condemned unheard, whether the date given by the reader is accepted as a date of hearing and under Order IX, Rule 13 of the C.P.C. And either Article 164 or 181 of the Limitation Act, 1908 is applicable in this case. The petitioner after examining the record had absented herself regularly and on two occasions, ex parte proceedings will made against her and the appeals were dismissed. From the record, it shows that five dates of hearing were fixed during the proceedings in the main case and no one entered appearance on behalf of the petitioner hence the suit was decreed on 18-10-2001.
The petitioner was fully aware of the proceedings and it was her duty to find out the next date of hearing which she failed to do so. The fact that the petition was moved by the petitioner on 31-1- 2002 about 3 and half months after passing of the decree indicates that once again no interest was shown it was the duty of the petitioner to be aware of the proceedings of the case. The law cited by the learned counsel for the petitioner does have some relevancy only to the extent of an adjournment which must be given by the Presiding Officer of the Court and it is up to the Court to give notice of the next date of hearing. Upon examining Order XVII, Rule 5 of C.P.C, if the Presiding Officer is absent for whatever reason, the ministerial officer (duly authorized) must handover to the parties slip of paper specifying the other date fixed for proceedings and signed by him. The law requires the chits to be given which were not given in this case, clearly an error made by the Reader of the Court. The petitioner had moved an application under Order IX, Rule 13 of the C.P.C, which was dismissed through the impugned order dated 22-5-2003. The law prescribes the period of thirty days for setting aside of the ex parte judgment and decree under Article 164 of the Limitation Act, 1908, which is to begin from the date of passing of the decree or where summons was not duly served when the applicant had knowledge of the decree and it was up to the petitioner to have knowledge of such a decree. Under Article 181 of the Limitation Act, 1908, there is a period of limitation of three years however, which is not attracted in this case. Justice does give preference that case should be decided on merits rather than on mere technicalities, however, in this case it is clear that the petitioner was given every opportunity to record her evidence which she failed to avail, and not appeared before the trial Court on several occasions as is evident from the record and failed to observe the limitation granted under Article 164 of the Limitation Act, 1908.
The petitions were dismissed on merits on the basis of the material, which was available before the learned trial Court.
7. In these circumstances, this Civil Revision is dismissed and the judgment of the learned ADJ dated 2-6-2004 is up held accordingly. Parties to bear their own costs.