' SAHIB KHAN. J.--- This Civil 1st Appeal assails the impugned order dated 24-3-20(1/. Passed by the Civil Judge 1st Class Skardu whereby, the learned trial Judge did not entertain the application under Order IX, rule 13 read with section 151 of C.P.C. For setting aside the ex parte decree dated 16- 9-2003 passed by the trial Court.
2. The precisely stated facts, giving rise to the present appeal, are that the respondent/plaintiff sued appellants/defendants for recovery of Rs,1644000 with its interest for the construction of barracks. During the process of trial appellants/defendants, absented themselves resultantly, the suit was decreed ex parte on 19-4-1994. However, on filing of appeal before the Chief Court GB, ex parte decree was set aside on the payment of costs Rs,30000 vide order 29-9-1999. The second ex parte decree again passed against the appellants on 19-2-2000 and the same was set aside through C. M.1 of 2000 by the trial Court.
3. Record reveals that none from defendants side was present in the Court on 6-11-2002 when the case was fixed for 5-3-2003, for evidence of plaintiff. On the fixed date defendants did not turn up, hence, the case was adjourned to 8-4-2003. The case again was adjourned to 8-5-2003 on the application of defendants. The trial Judge, on 8-5- 2003, proceeded ex parte against the defendants and directed the plaintiff for production of P.Ws. On 30-6-2003, recorded the statements of P.Ws. On this date, the case was adjourned to 16-8-2003 for arguments/consideration. However, the Judge himself could not deal with the case, hence this order sheet was maintained by the office, the same can be read as follows:--- 16-8-2003 Plaintiff in person present along with counsel.
' Defendants have sent a request for adjournment. Presiding Officer is busy in some other cases.
Case, to be put up on 16-9-2003.
4. On 16-9-2003, the learned trial Judge decreed the claim of the plaintiff through ex parte. The respondent/plaintiff filed execution petition before the executing Court and statedly on one or more dates different persons appeared in the Court claiming to be the representative of the defendants, but nothing is before us to be the proof of their nomination by the defendants, nor any plausible explanation could be advanced by the learned counsel for the plaintiff/respondent.
5. According to the facts, disclosed before us, an application under Order IX, Rule 13 read with section 151 of C.P.C. Was filed before the trial Court with an application under section 5/14 of Limitation Act for condonation of delay in filing of application for setting aside the order of ex parte decree. The same was disallowed by the trial Judge vide his above referred impugned order.
6. We have heard the learned counsel for the parties at length and gone through the record with the valuable assistance of the learned counsel.
7. The learned counsel, appearing on behalf of the petitioner, submitted that as the ex parte decree dated 16-9-2003 was passed on the subsequent adjourned date, hence the period of limitation under Article 181 of the Limitation Act is applicable but not the Article 164 of the Act 1908. Therefore, the application filed for setting aside the ex parte decree is well within the time and the ex parte decree is liable to be set aside as the appellants due to the nature of their duty and exigencies could not appear in the Court. In support of his contention, he referred PLD 1981 SC page 21 and 2001 CLC page 1976 (Peshawar).
8. On the other side, the learned counsel appearing on behalf of the respondent/plaintiff, contested the plea with tooth and nail. He forcefully argued that the appellants, throughout the long process of litigation, did not took the proceedings serious, accordingly proceeded ex parte more than one time. Due to the time gaining and irresponsible attitude of opposite side, respondent suffered unnecessarily. He submitted that the appellants put their appearance of and on during the execution proceeding but did not come forward with clean hand to face the proceedings in the Court of law. He submitted that the application under Order IX, Rule 13 has been filed after expiry of limitation period provided under Article 164 of the Limitation Act 1908. The condonation application is also not maintainable for the reason that the appellants/ defendants have failed to explain the delay of each and every day. He, in support of his version, referred the following case-laws:---
(1) 1986 MLD page 596 (Lah.) (2) 1988 MLD page 1518 (Lah.)
9. We would like to meet the single legal issue regarding the limitation involved in the matter and for the purpose we reproduce rules 6, 13 of Order IX C.P.C. And Article 164 of Limitation Act 1908 and reads:--- Order IX rule 6:-- Procedure when only plaintiff appears:
(1) Where the plaintiff appears and defendant does not appear when the suit is called on for hearing then:---
(a) When Summons duly served:--- If it is proved that the summons was duly served, the Court may proceed ex parte, (and pass decree without recording of evidence).
(b) When Summons not duly served:--- If it is not proved that the summons was duly served, the Court shall direct second summons to be issued and served on the defendant.
(c) When Summons served but not in due time:--- 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 summon, the Court shall postpone the hearing of the suit in future, a day to be fixed by the Court, and directs notice for such day to the defendant.
(2) Where it is owing to the plaintiffs 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.
Order IX rule 13:-- Setting aside ex parte decree against defendant:--
(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside, and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order, setting aside the decree as against him upon such terms as to costs, payment in the Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. Provided ....................................................................
Provided further..................................................................................
2(2) ....................................................................................
' Article 164 of Limitation Act:--- 164 By a defendant to set aside a decree passed by the ex parteThirty Days The date of the decree or where the summons was duly served, when the applicant has knowledge of the decree
10. If taken the above reproduced provisions in consideration it, appears that Order IX rule 6 is applicable only on the occasions specified therein and the Court is competent to proceed ex parte on that basis only. However, the law not only recognizes ex parte decree under Order IX, Rule 6 of C.P.C. But even, can be passed on subsequent adjourned date. The procedure laid down for setting aside the ex parte decree either passed under Order IX, rule 6 or on subsequent adjourned date is Order IX, Rule 13 of C.P.C. Similarly, the limitation provided under Article 164 in the Limitation Act, is applicable to ex parte decree. Column 3 of the Article 164 of the Limitation Act specifically provided for both the situations when the summons not duly served or a decree passed ex parte when the case was called on for hearing in a subsequent adjourned date.
11. It is on the record and also have been reproduced the order sheet dated 16-8-2003, maintained in the office of the Judge, but not the hearing was adjourned for 16-9-2003 by the Judge himself and on the date, i.e., 16-9-2003, when the ex parte decree was actually passed by the trial Judge.
On the point, that, whether the office/reader of the Court is empowered to fix a date for hearing, almost is a decided matter that the office is neither empowered nor competent to fix a matter for hearing, except can hardly adjourn and fix a future date for the information of the parties.
Accordingly, in this case, the adjourned date, i.e., 16-9-2003, was a date fixed by the office, and not by the Judge for hearing. Hence, the learned lower Court was not competent to pass an ex parte decree without issuing notice to opposite party. For the reason, the period of limitation available to the defendants/appellants is under Article 181 of the Limitation Act 1908 but not under Article 164 of the Act. We, therefore, deem the restoration application to be well within the limitation provided under law. Resultantly, the application under section 5 of Act bears no consequences and need to be explained its delay.
12. Coming to the conduct of the appellant, while dealing with the matter in hand, admittedly very poor and lathargic, for the reason that they never took the matter serious. The Courts are although duty bound to apply the provisions of law at appropriate level considering the facts and figures of each and every case. Similarly, the Courts are also bound to consider the attitude of the parties to the litigation. We, without going further, deem it proper to reproduce the previous order dated 24- 3-2007 on the subject.
"The persons responsible for the protection of the cause of defendants have demonstrated a very poor show throughout the proceedings. They are rather guilty of criminal negligence beside breach of trust. The record speaks volumes of it. One Executive Engineer, namely Mr. Tahir put his appearance on 1-8-1993 and then disappeared. Mr. Fakhar Hakeem Advocate took the charge of the case but he too defaulted since 3-3-1994 with the result that an ex parte decree for the recovery of Rs,16,44,000 was passed against the defendants. The learned advocate, thereafter, moved several applications but his conduct in pursuit of cases remained the same with the result that he earned negative results. The deplorable conduct of the defendants does not deserve any leniency but ultimately the government who shall suffer. Though the government cannot be placed on a higher pedestal than an ordinary ligitant yet in the instant case, she has been condemned unheard".
13. We, for the reasons discussed above, allow the application for setting aside the ex parte decree being within the time, set aside the ex parte decree dated 24-3-2007. Subject to payment of nominal costs, i.e., Rs,100,000 (One Lac) by the appellants/defendants to the respondent/plaintiff, the trial Court is directed to dispose the case within six months IE from 1.-.3-2011. . Appeal/.