'IQBAL HAMEEDUR REHMAN, J.---Through the instant revision petition the petitioners seek setting aside of the impugned judgment and decree dated 11-10-2008 passed by the learned Civil Judge, Chiniot and judgment and decree dated 25-6-2009 passed by the learned Addl. District Judge, Chiniot.
2. The brief facts of the case as stated by the petitioners are that petitioner No,1 filed a suit for recovery of maintenance allowance against respondent No,1 before the Judge Family Court, Sadiqabad. Respondent/defendant No,1 in response to the suit of petitioner No filed a suit for restitution of conjugal rights against petitioner No,1 before the Judge Family Court, Chiniot.
Petitioner No,1 filed a transfer application (T.A. No,140-C of 2008) before this Court for transfer of suit for restitution of conjugal rights and Guardian Petition filed by respondent No,1, which was allowed and the suit of respondent No,1 for restitution of conjugal rights was withdrawn from the learned Judge Family Court, Chiniot and entrusted to Judge Family Court, Sadiqabad.
'Thereafter respondent No,1 filed suit for declaration to the effect that the entries of Column Nos.13, 14, 17, 19 and 20 of the Nikahnama dated 15-10-2004 are based on fraud. Respondent No,1 also filed another suit for declaration challenging the agreement dated 15-10-2004 to the effect that the same is based upon fraud. Petitioner No,1 again filed a transfer application (T.A. No,127 of 2008) before this Court seeking transfer of both the above said suits filed by respondent No,1 which remained pending since 3-6-2008 and on which date learned counsel for respondent No,1 appeared and informed this Court that suits of respondent No,1 have been decreed ex parte vide judgment and decree dated 14-5-2008 and the transfer application was dismissed. Thereafter the petitioner filed application for setting aside of ex parte judgment and decree dated 14-5-2008.
Respondent No,1 filed reply to the application and the learned Civil Judge dismissed the application of the petitioner vide order dated 11-10-2008.
3. The petitioner being aggrieved preferred an appeal, which was dismissed by the learned Addl.
District Judge, Chiniot vide judgment and decree dated 25-6-2009. Hence, this revision petition.
3-A. It is contended on behalf of the petitioners that both the Courts below have totally misread the facts available on the record; that the petitioners got knowledge of the ex parte judgment and decree on 3-6-2008 when learned counsel for respondent No,1 appeared before this Court and stated that the suits have been ex parte decreed vide judgment and decree dated 14-5-2008 and that the learned Civil Judge passed the said judgment and decree during the pendency of the transfer application filed by the petitioner before this Court. It is further submitted that the learned appellate Court while passing the judgment and decree dated 25-6-2009 has incorrectly mentioned the fact of limitation as it is clear from order dated 3-6-2008 passed by this Court on transfer application filed by the petitioner wherein it is clearly mentioned the fact of ex parte judgment and decree and the period of limitation for filing application should be considered from the order passed by this Court. It is further submitted that the law requires a decision on merits rather disposal of cases merely on technicalities or ex parte proceedings; that the petitioners have been condemned unheard and the suits of respondent No,1 have been decreed with undue haste during the pendency of the transfer application before this Court, therefore, judgments of both the Courts below are liable to be set aside. Reliance in this regard is placed on the case of Muhammad Siddique and others v. Muhammad Bux and others 2003 M LD 542 and Muhammad Iqbal Khan v.
Mukhtar Ahmad Khan 2000 CLC 1643.
4. On the other hand, learned counsel for the respondents raised a preliminary objection that the civil revision is barred by nine days; that the respondent filed an application under section 10, C .P .0 . In the suit filed by petitioner No,1 for recovery of dower amount; that petitioner No,1 filed reply to the said application wherein she admitted that the Para No,2 of the application is correct regarding filing of the suit for declaration and the transfer application was filed after filing of the suit for declaration. It is further submitted that the suit of respondent was decreed ex parte vide judgment and decree dated 14-5-2008 and if the filing of the suits was not in the knowledge of the petitioner then how a transfer application was moved before this Court.
4-A. In reply to para 2 of the application under section 10, C.P.C. Filed by the respondent, the petitioner admitted contents of para No,2 of the application as correct regarding filing of the suit for declaration. Therefore, the contention of the learned counsel for the petitioners that the petitioners had no knowledge of the filing of the suits by respondent and that she came to know about the ex parte judgment and decree on 9-6-2008 through her relative whereas she was having the knowledge of the filing of the suits filed by respondent No,1 and she wilfully did not appear in the said suit. The learned Civil Judge rightly held that the people who intentionally avoid the legal process cannot be granted any benefit of their deliberate non-appearance; therefore, the application under Order IX Rule 13 of C.P.C. On 12-6-2008 filed by the petitioner for setting aside ex parte judgment and decree was rightly dismissed. The learned lower appellate Court passed the ex parte judgment and decree on 25-6-2009 whereas the petitioner have filed the instant civil revision before this Court on 14-10-2009. If calculated from 25-6-2009 upto 14-10-2009 it becomes delay of 20 days. The petitioners applied for obtaining certified copies of the judgment and decree dated 25-6-2009 on 27-7-2009 and obtained the copies on 18-7-2009 therefore; after excluding 11 days from the calculated 20 days, this revision petition has been filed before this Court with the delay of nine days; for A which no plausible explanation has been given. According to Article 164 of the Limitation Act, 1908 the petitioner could apply for setting aside the ex parte judgment and decree within 30 days and the delay of each and every delay has to be explained but the learned counsel for the petitioner has failed to explain the delay of each day. Section 5 of the Limitation Act does not apply to section 115, C.P.C. And the delay caused in filing the civil revision at the belated stage cannot be condoned. In the case of Allah Dino and another v. Muhammad Shah and others 2001 SCM R 286, it has been held by the apex Court that section 5 of the Limitation Act, 1908 is not applicable to the proceedings under section 115, C.P.C. In view of the provisions of section 29(2) of the Limitation Act, 1908 and that where the law under which proceedings had been launched had itself prescribed a period of limitation as under section 115, C.P.C. Then the benefits of section 5 of the Limitation Act, 1908, could not be availed unless the same had been made applicable as per section 29(2) of the Limitation Act, 1908. In the case of Abdul Qadir and 5 others v. Mst. Samina Zafar Khan and 32 others 2008 YLR 550, it has been held that revision was barred by time, with seven days' delay. Power under section 5 of the Limitation Act, 1908 for condonation of delay in filing the revision petition was not available. Delay in circumstances, was not condoned and application and revision petition were dismissed. Reliance is also placed on the case of Majeed Ahmed Khan v. Addl. District Jude, Faisalabad and others 2009 YLR 1729.
5. The learned Addl. District Judge rightly held that the plea of the appellant/petitioner that she had not been served as she was resident of Sadiq Abad but the filing of an application under section 10, C.P.C. On 5-5-2007 by the respondents manifests that she came to know about the filing of the suit on 9-6-2008 which was finally decreed after more than one year on 14-5-2008; therefore, the petitioner/appellant was bound to file an application under Order IX Rule 13 of C.P.C. In view of Article 164 of the Limitation Act, 1908 which provides the limitation of 30 days. But the petitioner had failed to file an application under section 5 of the Limitation Act; therefore, her application for setting aside the ex parte judgment and decree was rightly dismissed. Both the Courts below after taking into consideration the facts and circumstances of the case have rightly dismissed the application of the petitioner for setting aside the ex parte judgment and decree. The concurrent findings of the Court below based on material on record, would not be amenable to interfere with by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. Reliance is placed on Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCM R 1647, Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCM R 314, Abdul Rahim and another v.
Mst. Jantay Bibi and others 2000 SCM R 346, Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCM R 431, and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329.
6. Learned counsel for the petitioners has not been able to point out any illegality, irregularity or jurisdictional defect in the orders of the Courts below warranting interference by this Court in exercise of the revisional jurisdiction. This revision petition being devoid of force is dismissed.