' MUHAMMAD MUNIR PERACHA, J.-This judgment shall dispose of C.Ms. Nos.432-S/09, 1216/08, 1220/08, 1543/08, 1260-S/09 and 1273-S/09.
3- Messrs Rai Farms and Messrs Barkat Ali and company filed a suit for declaration and mandatory injunction against M.G. Hertz (Pvt.) Ltd., M.G. Realtors, Asian Challenge International (Pvt.) Ltd., National Housing Authority and Capital Development Authority. The case of plaintiffs was that defendants Nos.2 to 4 entered into a public, private venture agreement. Defendant No,4 approved the scheme for the development of 20000 Kanals of land, which was to be executed by defendants Nos.2 to 4 as a Joint Venture. Another Joint Venture agreement for the development of 80,000 Kanals of land was entered into between defendants Nos. l and 5. It is pleaded that defendants Nos.l and 2 approached the plaintiffs for procurement of land required for the proposed project. An agreement was signed between the parties on 6-12-1995. Under the terms of the agreement, the plaintiffs were to procure the land for the above said two development projects. The case of the plaintiffs is that they procured the land measuring 10102 Kanals 13-Marlas at their own cost and transferred the same in favour of defendants No,4 and 5. It is the case of the plaintiffs that defendants Nos.l, 2 and 5 entered into an agreement with defendant No,3 on 7-7-1996 in violation of the agreements executed on 6-12-1995. It is pleaded that subsequently differences cropped up between the defendants Nos. 1,2 and 5 and as a result, the joint venture agreements were terminated. The case of the plaintiffs is that defendants are entitled to get the price of the land transferred to defendants Nos.4 and 5. It is pleaded that the plaintiffs requested time and again to defendants No,4 and 5 to pay the price of the land or in lieu thereof, transfer the land in their favour but the defendants No,4 and 5 are not ready to either pay the price of the land or to transfer the land in favour of the plaintiffs. The suit was placed before the learned Senior Civil Judge, Islamabad on 1-6-2005. The learned Senior Civil Judge ordered that the summons be issued to the defendants subject to deposit of process fee through registered envelope and DHL for 13-6-2005. The order passed by the learned Senior Civil Judge on 12-6-2005 shows that the defendants were not served.
The learned Senior Civil Judge directed that summons be repeated for 24-6-2005. In the order dated 24-6-2005, it was recorded by the learned Trial Judge that defendant No,5 Capital Development Authority has been served but no one is present on its behalf. Defendant No,5 was ordered to be proceeded against ex parte. Defendant No,4 was also found to have been served but not present. It was also proceeded against ex parte. About rest of the defendants i.e, defendants Nos.l to 3, the learned Trial Judge ordered that they be served through proclamation in the newspaper daily "Dawn, Islamabad" for 4-7-2005. The order shows that an application under Order I rule 10, C.P.C, was filed on behalf of Mansoor and Brothers for its impleadment as defendant in the suit. It is recorded in the order dated 5-7-2005 that the proclamation in the newspaper has been published against defendants Nos.l to 3 but none is present on their behalf. They were also proceeded against ex parte. Application under Order I, rule 10, C.P.C, was dismissed vide a separate order. The case was fixed for ex parte evidence of the plaintiffs for 10-7-2005. On 11-7-2005, the learned Presiding Officer was on leave and the case was adjourned to 13-7-2005 for recording of ex parte evidence. On 13-7-2005, an application on behalf of Capital Development Authority was filed for setting aside ex parte proceedings. With the consent of the plaintiffs, ex parte proceedings were set aside. The case was adjourned to 16-7-2005 for submission of written statement. On 16-7-2005, the Capital Development Authority filed the written statement. The case was adjourned on 20-7- 2005. On 20-7-2005, issues were framed and the case was adjourned to 30-7-2005 for evidence of the plaintiff. On 30-7-2005, the case was adjourned to 3-9-2005 for the plaintiffs' evidence. The order sheet of 3-9-2005 is important for the disposal of the title applications and is therefore being reproduced:- "3-9-2005 9-00 a.m.
' Present: Counsel for the plaintiff. P.Ws. Are present. None is present on behalf of defendant No,5 while remaining defendants have already been proceeded against ex parte. File be kept awaiting till 11-00 a.m.
(Sd.)
Senior Civil Judge' Islamabad.
11-00 a.m.
' Present: Counsel for the Plaintiff.
' P. Ws. Are present. None is present on behalf of defendant No,5. For the sake of justice, file be kept awaiting and now to come up at 2-30 p.m.
(Sd.)
Senior Civil Judges' Islamabad 02-30 p.m.
' Present: Counsel for the plaintiff along with P.Ws.
' None has turned up on behalf of defendant No,5 since morning and now the Court time is likely to be expired, therefore, there is no use to wait for defendant No,5 and as since morning, no one appeared on behalf of defendant No,5 for appearance in the Court and for cross-examination of P.
Ws, therefore, defendant No,5 is-also proceeded against ex parte and defence of defendant No,5 is struck off. Ex. Parte statement of P.Ws. Has been recorded and now the file should come up for documentary evidence of the plaintiff for 6-9-2005.
(Sd.)
Announced 3-9-2005 Senior Civil Judge Islamabad
3. On 6-9-2005, the plaintiffs A furnished documentary evidence and the case was adjourned for 10-9-2005 for the arguments in the suit. On 10-9-2005, the arguments could not be heard and the case was adjourned to 13-9-2005. The order sheet dated 13-9-2005 shows that an application for setting aside ex parte proceedings was filed by the Capital Development Authority. The application was dismissed. Vide a separate judgment, the suit of the plaintiff was decreed. On 16-11-2005, an application for setting aside ex parte decree dated 13-9-2005 was filed by the Capital Development Authority. On 17-10-2005, National Housing Authority also gave an application for setting aside ex parte decree. Asif Enterprises and Maqsood and Brothers through C.M. No,1216/08 prayed for setting aside the judgment and decree dated 13-9-2005 on the ground that same has been procured by fraud and mis-representation.
4. I have heard Barrister Masroor Shah Advocate and Mr. Tariq Mehmood Jahangiri Advocate, who appeared in support of application for setting aside ex parte decree filed by Capital Development Authority, Ch. Mushtaq Hussain who represented the plaintiffs and Mina Ishtiaq Hussain, who appeared for Asif Enterprise and have gone through the record of the case with their able assistance.
5. Learned counsel appearing for the Capital Development Authority submits that ex parte decree passed by the learned Senior Civil Judge on 13-9-2005 is liable to set-aside having been passed in clear violation of the law.
6. Ch. Mushtaq Hussain Advocate is of the view point that the application for setting aside ex parte decree filed by Capital Development Authority being apparently barred by time and there being no application for condonation of delay, the application merits outright rejection. He submits that under Article 164 of the Limitation Act, 1908 the application for setting aside ex parte decree, could have been filed within 30 days from the passing of the decree in this case.
7. Using the right of reply, Barrister Masroor Shah Advocate contends that it would be Article 181 of the Limitation Act, 1908 which is applicable in the facts of the case.
8.Let me first examine the question of limitation, Article 14 of the Limitation Act, 1908 reads as under:- Description of applicationPeriod of limitationTime from which period begins to run By a defendant, for an order to set aside a decree passed ex pasteThirty days.The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.
9. Learned counsel appearing for the Capital Development Authority submits that Article 164 would be applicable only if a defendant never appears before the Trial Court but if a defendant appears before the Court after having been served and subsequently absents himself, then Article 181 is to be applied. In this respect, the reliance is placed on "Province of Punjab v. Lt. Gen. (Retd.) Wajid Ali Burki, PLD 1990 Supreme Court 813" and Messrs Rehman Weaving Factory (Regd.) Bahawalpur v.
Industrial Development Bank of Pakistan and Messrs Rehman Weaving Factory (Regd.) Bahawalpur v. Punjab Small Industries Corporation Lahore (PLD 1981 SC 21)". So far as PLD 1990 SC 813 is concerned, it is a leave granting order. Case reported as PLD 1981 SC 21, is distinguishable. In the precedent case, the defendant in the suit appeared after having been served. He filed the written statement. The plaintiff in the suit filed an application for amendment of the plaint, which was rejected by the Trial Judge. He challenged the order before the High Court through a Civil Revision.
Civil Revision was dismissed. After the dismissal of the Civil Revision, the High Court remitted the record to the Trial Court. On receipt of the record, the Trial Court issued notices to the defendant.
The defendant though served but did not appear before the Trial Judge and was proceeded against ex parte and eventually an ex parte decree was passed against him. An application for setting aside ex parte decree was filed and it was in these circumstances, that the honourable Supreme Court came to the conclusion that Article 181 would be applicable in the case and not Article 164 of Limitation Act, 1908. The distinction was drawn between the "summons" and "notice".
10. If summons are served on the defendant and the defendant does not appear, Order IX Rule 6, C.P.C, is attracted, which provides:-- "Procedure when onl appears.---(1) Where the plair appears and the defendant does appear when the suit is called for hearing, then--- ' When summons duly served. ---(a) if it is proved that the summons was duly served, the Court may proceed ex parte, and pass decree without recording evidence.
'When summons not duly served.-- C (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; ' When summons served, but not in due time.---(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement."
' If the defendant appears before the Court after having been served but on subsequent date fails to appears, Order XVII, Rule 2, C.P.C, is applicable, which reads as under:- Procedure if parties fail to appear on day fixed. ---Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose Of the suit in one of the modes directed in that behalf by order IX or make such other order as think fit."
11. The absent defendant can be proceeded against ex parte. I am conscious of the judgments reported as "National Bank of Pakistan v. The Additional District Judge Lahore PLD 1985 Lahore 327", "Ch. Ismail Khalid v. Commissioner, Ex-Officio Courts of Words 1984 CLC 3045" and "Muhammad Afzal v. Small Business Corporation 1997 CLC 180". However all these cases are distinguishable because in those cases the suits were transferred from the Courts of Civil Judge, who were seized of suits and were entrusted to some other Civil Judge. The transferee Court proceeded to pass the order in the absence of either plaintiff or the defendant without issuing notice to them. In these circumstances, it was found that Article 181 would be applicable.
12. In my view, in this case, Article 164 of Limitation Act, 1908 would be attracted. The application for setting aside ex parte decree after 30 days from the passing of the decree is therefore, barred by time. In this respect, "Secretary Education Department Government of N.-W.F.P. Peshawar v.
Afsandiar Khan, 2008 SCMR 287" and "Shahid Hameed v. Muhammad Ahmad Ameen, 2006 SCMR 631" may be referred.
' However, the matter does not end here, Capital Development Authority was ordered to be proceeded against ex parte on 3-9-2005. In order dated 3-9-2005, learned Trial Judge apart from proceeding against applicant CDA ex parte, ordered that its defence is struck off. Capital Development Authority filed an application for setting aside ex parte proceedings on 13-9-2005.
The application was dismissed on the ground that "as right of defence of defendant No, 5 was struck off under Order XVII Rule 3 C.P.C, therefore, this Court has no jurisdiction to set aside the order regarding right of cross-examination and that order is appealable." Rules 2 and 3 of Order XVII are reproduced:-- "(2) Procedure if parties fail to appear on day fixed. ---Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by order IX or mark such other order as think fit.
(3) Court may proceed notwithstanding either party fails to produce evidence, etc. ---Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform, any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
' Order dated 30-7-2005 shows that on 30-7-2005, the case was adjourned to 3-9-2005 for the evidence of the plaintiff. The defendant CDA was not granted time to perform any act necessary to the further progress of the suit. Order XVII Rule 3, C.P.C. Therefore, could not have been invoked. At the maximum, Capital Development Authority could have been proceeded against ex parte. If defendant is proceeded against ex parte, he has a right to show to the Court that there was sufficient cause for his non-appearance. The Capital Development Authority gave an application for setting aside ex parte proceedings. In the application, it was pleaded that the non-appearance is neither wilful nor deliberate. However, learned Civil Judge did not examine sufficiency or otherwise of the cause of non-appearance but dismissed the application on the ground that the application is riot competent because defence of the Capital Development Authority has been struck off under Order XVII Rule 3, C.P.C. Order dated 3-9-2005 as well as 13-9-2005 is therefore, patently illegal.
13. In case reported as "Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 Supreme Court 678", the honourable Supreme Court held as under:-- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide, over a period of time this development of codes and rules led to the evolution of what is called, "jurisprudence of Conception" a system of logical deduction from fixed premises.. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principal of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice."
' In this case, Government of Pakistan and the Manager Jammu and Kashmir State Property filed an appeal before District Judge against the judgment of the Trial Judge. However, the appeal was dismissed for non-prosecution. An application for restoration of the appeal was filed. None appeared on behalf of the applicant to pursue the application and the same was dismissed for non-prosecution. Another application for restoration was moved, which too was dismissed in default. Instead of pursuing the remedy for restoration of the appeal, Manager Jammu and Kashmir State Property filed RSA in the High Court challenging order of dismissal in default of appeal and also the order of dismissal in default of two applications for restoration of appeal.
Subsequently realizing that appeal was not competent under Order XLIII Rule 3, C.P.C, learned counsel for the appellant moved a petition that appeal be treated as revision. Relying on the principle that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat ends of justice, learned Supreme Court observed that order dismissing the appeal for non-prosecution by the District Judge is liable to be set aside as appeal was not fixed for hearing within the meaning of Order XLI Rule 17, C.P.C, the day it was dismissed for non-prosecution.
14. Though I am hearing the application for setting aside ex parte decree, in my original civil jurisdiction but at the same time I have revisional powers against the orders dated 3-9-2005 and 13-9-2005. In my suo moto revisional jurisdiction, I set aside order, dated 3-9-2005 as well as order dated 13-9-2005 whereby E defence of the CDA was struck off under Order XVII Rule 3, C.P.C. And on the said ground, application for setting aside ex parte proceedings was dismissed. Resultantly, ex parte decree dated 13-9-2005 also stands set aside despite the facts that I have recorded a finding that application for setting aside ex parte decree dated 13-9-2005 is barred by time because ex parte decree dated 13-9-2005 is based on two erroneous orders dated 3-9-2005 and 13-9-2005.
15. No body appeared on behalf of National Housing Authority in support of its application for setting aside ex parte decree. However, since the ex parte decree has been set aside, its application has become infructuous. Since decree which was sought to be set aside under section 12(2) C.P.C, by Asif Enterprise, has been set aside, the application filed by it also has become infructuous.