1. MUHAMMAD AFZAL ZULLAH, J.-These appeals through Special Leave arise out of a judgment dated 21-2- 1977 passed by the Lahore High Court, whereby the order of refusal by the learned trial Judge to set aside an ex parte decree, was reversed.
2. The appellant filed a civil suit for damages against the Industrial Development Bank, respondent in Civil Appeal No. 133 of 1978, and Punjab Small Industries Corporation, respondent in Civil Appeal No. 134 of 1978 (defendants Nos. 1 and 2 respectively). The defendants contested the suit and filed separate written statements. The appellant filed an application to amend the plaint. But the same having been refused by the trial Court, a revision petition was filed by the appellant in the High Court which was dismissed on 1-2-1972. After the dismissal of the revision petition, the High Court remitted the record of the case to the learned trial Court, which, as put in the concise statement of the appellant "recommenced trial and issued notices for 23rd of May 1972 to the defendants". On the said date, the appellant was represented but none was present on behalf of the defendants who had allegedly been served. Accordingly, they were proceeded ex parse and eventually an ex parte decree was passed against them on 27th of May 1972. The defendant No. I on an assertion that notice was not served and further that the knowledge about decree was obtained on 31st of July 1972, made an application on the same day for setting aside the ex parte decree. But it was dismissed. A similar application filed by defendant No. 2 on the 6th of October 1972 was also dismissed. These applications were dismissed on 18-5-1974 inter alia, on the ground that they were time barred.
3. Both the defendants filed separate appeals in the High Court, which were accepted on 21st of February 1977, on the findings that "the service, as observed earlier on an unknown person or the service by affixation without obtaining a refusal from a proper person or without resorting to the personal service was made not only upon misrepresentation of fact, but also misapplication of proper procedure. The circumstances show that the Court below did not properly apply its mind to ascertain whether the appellant was duly served. It had acted rather mechanically without being aware of its discretionary power not to proceed ex parte and pass a decree ex parte.
4. Both the appellant and respondent No. 2 cannot be deemed to have been duly served or have any knowledge of the decree, therefore, the applications being filed within thirty days of attaining knowledge were in time. Issue No. 1 is answered against the respondent. The fact that the defendants were not properly served and that they had no knowledge of the date of hearing or of the decree was by itself enough to make out that a sufficient cause existed for setting aside the ex parte decree. Issue No. 4 is decided in favour of the defendants". On acceptance of the appeals, the case was sent back to the trial Court "for determination on merits in accordance with law".
5. Leave was granted to consider the points "(a) whether the learned Single Judge has applied the correct provision of law regarding the period of limitation applicable for institution of an application for setting aside an ex parte decree ; (b) whether that period can be extended on any ground whatsoever, especially when section 5 of the Limitation Act was not applicable in such situations and (c) the point whether the learned Single Judge could go behind the pleadings of the defendants or any particular defendant in the matter of their or his knowledge about the ex parte decree and whether he has applied correct principle in the matter of appreciation of evidence".
6. Learned counsel for the parties have addressed lengthy arguments. They are agreed that section 5 of the Limitation Act would not apply to an application for setting aside an ex parte decree. Accordingly, condonation of delay under the said provision was not possible. Learned counsel for the appellant argued that the only provision of law which would be attracted to the present case is Article 164 of the Limitation Act which provides that the period of limitation for filing an application to set aside an ex parte decree would be 30 days from (a) the date of the decree, or (b) where the summons was not duly served, when the applicant has knowledge of the decree. He explained that the findings of fact by the learned Single Judge in the High Court followed by the observations to the effect that the learned trial Judge in this case did not properly apply his mind to ascertain whether the defendants had been duly served and that when proceeding ex parte be acted mechanically without being aware of the discretionary power not to proceed ex parte, show that the ruling by this Court in the case of Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678was applied for finally deciding the appeal. This analysis appears to be correct. It was held in the case of Khuda Yar that (a) it is the duty of the Court to ascertain that the opposite-party has been duly served and if this is not done it cannot be said that the case is called for hearing on the day fixed for the purpose ; and (b) that the Court should not act mechanically in directing ex .Parte proceedings without showing awareness of discretionary power not to proceed so. If these considerations are ignored, the .Resultant order would have been made in ignorance of the available jurisdiction which would render an order, void, and a nullity. It appears that without saying so, the learned Single Judge held that on findings of fact in this case the principle laid down in the said ruling was fully attracted and that being so no mention was made of the provisions of law including those of Limitation Act which might otherwise have governed the situation.
7. Learned counsel for the appellant laid considerable stress on the point that it was a simple case of absence of defendants on the date of hearing. Therefore, whatever grounds might be urged in support of an application for setting aside an ex parte decree, for purpose of limitation, the case would have to be governed by Article 164 of the Limitation Act. He however, conceded that if the circumstances of a given case justify inferences as were drawn in the well known case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97which he analysed minutely, the period of limitation, in the High Court would, if at all, be governed by residuary Article 181. And that otherwise too the proceedings could be corrected within reasonable time without constraint of any period of limitation. In support of his argument that the present case is governed By Article 164 of the Limitation Act, learned counsel relied on Mian Kamal Din v. Malik Muhammad Bashir and others (PLD 1952 Lah. 456 and Netai Sikarl and others v. Sashi Bhusan Biswas and others (PLD 1962 Dacca 60 The Dacca case proceeded on the assumption of the correctness of the Lahore case. Therefore, it would be necessary to consider the 'correctness or otherwise of the law laid down in the Lahore case of Mian Kamal Din.
8. Article 164 of the Limitation Act reads as follows :- Description of Period of Time from which period application Limitationbegins to run.
9. By a defendant, for an Thirty days the date of the decree order to set, aside aor where the summons decree passed ex parte.was not duly served, when the applicant has knowledge of the decree.
10. It was held in the case of Kamal Din that the word summons used in Article 164 refers to the first summons issued to the defendant after the institution of the suit and that the defendant under second part of the said Article would be benefited only if he is able to prove that the first summons was not duly served and then he would be entitled to reckon the period of 30 days from his knowledge of the decree. Otherwise, if the initial summons was duly served, the period would commence from the date of the decree. The defendant in the case before the Lahore High Court had appeared before the Court in pursuance to the first summons rut had absented on a subsequent date to which the suit had been adjourned on account of absence of the presiding Judge on the date of the previous hearing. The notice for the subsequent date had not been served upon the defendant in whose absence an ex parte decree was passed against him. His plea that the notice not having been served upon him he was entitled to count the period of limitation for purpose of setting aside the ex parte decree, from the date of the knowledge of the decree was rejected and the period was counted from the date of the decree because the initial summons had been admittedly duly served on him. Two cases were noticed in support of the view that in the circumstances like those in the cited cases, the period should be counted from the date of the knowledge of the decree. These were ; Raghbir Brethers v. Daulat Ram (AIR 19i6 Lah. 132 and Kapilaswar Maharana v. Abdul Rahman AIR 1936 Pat. 490). Without disagreeing with the ratio in both these cases it was held in Kamal Din's case that the period of limitation in the circumstance of that case would commence from the date of the decree. Notice was also taken of Mst. Lal Davi v. Amar Nath AIR 1920 Lah.
11. 261Surjit Singh v. Lieut.-Capt. C. J. Torrie (AIR 1924 Lah. 666), Sham Sundar Khushi Ram v. Devi Ditta Mal and another (AIR 1932 Lah.539 and Tara Chand and others v. Ram Chand and others (AIR 1935 Pesb. 7 Reference was made to the use and meaning of the words "summons" and "notice" and it was emphasised that the word "summons" and not the word "notice" was used in Article 164. ex parte. The defendant's application for setting aside the ex parte decree on the ground that he had no notice of the date fixed for the hearing in the transferee Court was dismissed on the ground of negligence. The defendant's first appeal was allowed. In revision the plaintiff took up the plea that the question of limitation was not decided and that the application was barred as the defendant having been duly served with the initial summons could count the period of limitation only from the date of the decree and not from his knowledge.
12. Reliance in this behalf was placed on the language used in the third column of Article 164. The High Court refused to interfere in revisional jurisdiction despite having noted that the question of limitation had nest been decided by the lower Courts. It was observed that the action of the trial Court "bears a close analogy to proceeding ex parte when the defendant is absent because the summons has not been served upon him". It was accordingly held that the case was practically of "non-service of summons on the defendant".
13. Raghbir Brothers the defendants had appeared after the service of the initial summons and on raising the objection under section 10 of C. P. C. Bad obtained a stay order. On a subsequent date the plaintiff informed the Court that the second suit was dismisssed and sought resumption of the proceedings. The defendants asserted that although the other suit was dismissed for default, proceedings were going on for its readmission. The case was adjourned so that the defendants could produce a copy of the proceedings in the other suit. On the adjourned date neither the defendants nor their counsel appeared and the Court forthwith passed an ex parte decree against them. The defendants applied far setting aside of the ex parte decree on the ground that they had no intimation that the case would be heard on the adjourned date. As their application was beyond the 30 days from the date of the decree, they counted the period of limitation from the date of knowledge of the ex parte decree. The trial Court dismissed it "as barred by time .Under Article 164 of the Second Schedule of the Limitation Act". The defendants appeal was dismissed. On revision the Lahore High Court held : firstly that the adjourned date was not for the hearing of the case on merits and secondly that the defendants had not received any notice or other intimation that the case would be heard on that date on merits, therefore, ex parte decree could not be passed. On question of limitation, regarding the filing of the application for setting aside of the ex parte decree, it was held that the defendants were not aware of the decree till a certain date from which the application was within limitation. Accordingly, in the circumstances, it was held that the period could be counted from the date of the knowledge of the ex parte decree notwithstanding the fact and it was not denied that the summons for appearance in the suit were initially duly served on the defendants.
14. One conclusion that can be drawn from the ratio in the aforenoted two cases is that there can be exceptions to the rule that the period of limitation can be counted from knowledge of the decree only if the initial "summons" are not duly served. If the defendant had no "notice" of an adjourned date even then in some situations the limitation would be counted from the knowledge of the decree. This rule seems to have been affirmed by a Division Bench of the Lahore High Court in Bisas Mal v. Kewar Singh and others (AIR 1920 Lah. 309 When comparing Article 163 and 168 with Articles 164 and 169 it was observed that "where a plaintiff or appellant seeks to set aside an ex parte order, limitation runs only from the date of the order, whereas if a defendant or respondent seeks such relief he can in cases where he has not had due notice, count limitation from date of his knowledge of the order."
15. As against the reasoning in the afore-discussed cases, there is the other line of argument adopted in the Lahore cases of Mst. Lai Devi (AIR 1920 Lah. 261 and Surjit Singh (AIR 1924 Lah. 666) and Peshawar case of Tarschand (AIR 1935 Pesh. 7(with respect it is pointed out that Hamir Kaur's case (A 1, ;R. 1932 Lah.
16. 538which does not at all deal with the question in issue was cited in Kamal. Din's case inadvertently) The comment on these cases by the learned Judges deciding the case of Kamal Din was only this that "the first case on which the learned Single Judge has relied, and which the other two cases have followed, has merely accepted the observations of Mr. A. M. Rustomji in his commentary on the Law of Limitation. Mr. Rustomji states at page 1583 of his fifth edition that `summons in columns in column third of Article 164 refers (it seems) to the summons for the first hearing of the suit and when there has been a due service of such summons, the mere circumstance that the defendant did not receive notice of an adjourned hearing will not bring the second part of column third into operation. Accordingly the defendant must apply to set aside the decree within 30 days of the date of the decree, and he is not entitled to count limitation from the date when he had knowledge of the decree." The learned Judges it seems were more impressed by the fact that the word "summons" had been- used in the C. P. C. In contradistinction to "notice" acid to them it did not make any difference if the manner of service of both was the same. They were also impressed by the procedure in various Courts in England and lastly, as already noted, by the fact that "it appears to have been understood that once a party receives intimation! Of an action, it is for him to pursue it and to keep himself in touch with the proceedings, either.
17. Personally or through his counsel"
18. Stray reference have been made to the present controversy in some other cases. In Ghulam Hussain v. Makhan Lal (AIR 1933 Lab. 882 Bhide, J. Of the Lahore High Court when comparing Articles 164 and 169 and after noting the cases of Lal Davi and Surjit Singh observed that these rulings did support the view that the summons referred in Article 164 meant the first summons relating to the suit but acknowledged that the point was perhaps not free from difficulty. This was despite the fact that the same learned Judge had in Sham Sundar Khushi Ram (AIR 1932 Lab. 539a year earlier expressed the view that the summons referred in Article 164 meant the summons for the first hearing of the suit and not any summons issued for a subsequent hearing. It is interesting that in this case also the learned Judge had made reference to the views of Rustomji in his work on Law of Limitation. It is important to note that in yet another case of Thaker Nil Chand v. Thaker Kamal Chand and another AIR 1948 Lah. 49) the same learned Judge dealing with the question of fairness or otherwise of the interpretation but on Article 169 that the "notice" referred therein meant the first notice of appeal observed as follows :- "It must he said that the language of Article 169 is not very happy and its interpretation is not free from difficulty as I have remarked in AIR 1933 Lab. 882. It would be unfair to expect a party to attend the Court on a date of which no due notice has been given and I am inclined to think that the expression "notice of appeal" should be taken to mean notice (actual or constructive) of the date on which the appeal is disposed of. Any other interpretation would lead to obvious injustice. If, for instance, a Court adjourns an appeal sine die for some reason and later on taken it up in the absence of a party who had no notice of the date of hearing and then decides it against him, that party cannot be expected to know the result of the appeal. It would be obviously unjust to dismiss the petition of such party for setting aside the ex parte order merely on the ground that it was not presented within 30 days. The mere fact that the party had been originally served with notice of the appeal would seem to be wholly immaterial in such circumstances and cannot be considered to be any justification for the ex parte decision. AIR 1933 Lab. 882 had reference to the special rules of this Court and was decided on its own fact."
19. Before adverting to the rulings of Superior Courts after Independence on the controversy, it is necessary to take note of some cases from the Indian jurisdiction. In Sahdi Harnam Singh v. Sodei Mohinder Sinah (AIR 1954 Pb. 137a Letters Patent Bench reversed the decision of a learned Single Judge wherein it was held that if on the transfer of a case by the District Judge no date was fixed before the transferee Court nor the latter issued and served notice for a specified date, the defendant could not be proceeded ex parte and further that in such a case the word summons in column 3 of Article 164 of the Limitation Act would not be confined merely to the first summons issued in the suit. In other words it was implied that if after the transfer of the suit the notice for hearing before the transferee Court was not duly served, the word summons in Article 164 would also include such notice. In Letters Patent Appeal however, relying on the earlier noted Lahore cases, strict interpretation was placed on the word "summons" as meaning the first summons. The learned Judges while dealing with the argument that after service of first summons the parties should remain vigilent acknowledged that "in some cases extreme hardship may result if summons means summons in the first instance only, for one can imagine cases in which through no fault of the defendant an ex parte decree is passed to his complete ignorance. There may even be a case in which in spite of vigilance on his part he may not know that an ex parte decree has been passed and in such cases it may be impossible for him to make an application under Order IX, rule 13, Civil P.
20. C., within thirty days of the passing of the decree". It was. Further thought that section 5 of Limitation Act not having been made applicable to applica--tions under Order IX, rule 13, the Courts were helpless in removing the hardship and on this realisation in some Indian States section 5 had now been made applicable. Accordingly, it was observed that if there is a lacuna in the law, the intention of the legislature as expressed in the statute was clear, the Courts could not refuse to give effect to it. A suggestion was made for adopting the course followed in Madras, Bombay and Nagpur High Court through the extentions of section 5 of the Limitation Act. In the case before the learned Judges however, -the application for setting aside the ex parte decree was dismissed as time barred with costs throughout. Similar difficulty was overcome in another Indian case in Nanda Dayaram Jai v.
21. Raja Ram Ramaji Jai (AIR 1964 Madh. Pra. 261 through another mode of interpretation. The defendant therein was duly served for a date which was declared a holiday. The Court subsequently served a fresh summons on the defendant who did not appear on the date of hearing and an ex parte decree was passed against him. He applied for setting aside the ex parte decree which was resisted on bar of limitation. It was held that the first summons for a date which was a holiday was not proper. There was no rule of law or procedure that the parties summoned should appear on the day next following the holiday. Hence it was not a good service for purpose of Article 164 of the Limitation Act. Accordingly, the period would run from the date of the knowledge of the decree.
22. It was further held that the knowledge about the filing of the suit did not mean the knowledge of the decree.
23. Hence the application was within time. The case is a classic example of how a learned Judge on realisation of the hardship removed the same within the permissible limits. To the similar effect is the case of Pichsi Ammul v.
24. Vellavvn Theyar alias Ochu Thever (AIR 1963 Mad. 19, The Madras High Court in another case of S. Ameeran Sahob and another v. Somanather Nadar (AIR 1973 Mad. 308) overcome the rigours of language used in the relevant substitute Article of the Limitation Act and held that an applica--petition to set aside an ex parse decree filed within 30 days of the knowledge of the passing of the decree is not time barred when notice of the suit received by the defendant was unaccompanied by a copy of the plaint. The Allahabad High Court in Firm Kundan Lal Brindaban v. Firm Sani Prasad Baij Nath Prasad AIR 1957 All. 76) again followed the Lahore view taken in the pre-Independence cases, noted earlier, in order to hold that the summons mentioned in Article 164 related to the summons issued for the service of the defendant for the first date in the case ; nevertheless removed the rigour of the provision by holding that if the summons is served after the expiry of the date of the appearance although the mode of service is perfect i. e. personal, it would not be treated as due service because due service has reference not merely to the mode of service, but to the propriety of the summons where it fixes a date for hearing, on which date by reason of the delay in service or of some action of the Court itself or of its officer; or by reason of a governmental order it is not possible for the defendant to do what he is asked to do and that the same would apply to the service an the defendant for the date on which there was curfew order. The same Court in another case of Bachcha v. Memeshwar Fresad Singh and another AIR 1963 All: 31, where the interpretation of Article 169 of the Limitation Act was involved, again, after noticing the earlier mentioned Lahore cases held that the words "notice of the appeal" in Article 169 meant the notice of the day fixed for hearing and disposal of the appeal and not merely notice to the respondent that an appeal had been filed. It is interesting to note that the learned Court analysed the provisions contained in the Civil Procedure Code relating to the proceedings on a suit as also the proceedings on filing of an appeal and serious notice was taken of certain absurdities and hardships if the use of the word "notice" in Article 169 was confined to the first notice of the filing of the appeal. Notice was also taken though indirectly by quoting the observations of Bhide, J.
25. In Nil Chand's case with regard to the obvious injustice which would result if the word "notice" in Article 169 was not given the extended meaning.
26. Gabardhan Ram Sishesar Ram v. Benargi Ram and others AIR 1957 All. 805. The plaintiffs while resisting an application for setting aside an ex parte decree passed on non-appearance of the defendant (after an order of transfer) before the Court had relied on some observations in the Punjab case of Sodhi Harnam Singh to the effect that the wording of Article 164, refers to `summons' issued in the first instance and not to `notices' issued to parties subsequently whether such notices are necessary under law or not. And that where the defendant has received the summons of the first hearing or where he has been directed to appear before the transferee Court on a certain date by the transferring Court, the limitation under Article 164, to set aside an ex parse decree, starts from the date of the decree. Reliance was also placed on the early Lahore decisions on this point which are to the same effect. The contention was repelled. It was observed and held as follows :- "I quite agree that in case there had been no interruption in the hearing of the suit would and the suit would have proceeded in ordinary course and the word "summons" in Article 164 would refer to the summons issued in the first instance because thereafter he would make arrange--ments of the presence of a counsel and he would be deemed to be inform--ed of the suit regularly through his counsel from the Court. But if there is an interruption in the hearing and there is stay on account of the order of the superior Court the case would assume a different character. The first hearing in that instance would be the first date on which the case again starts after the case is sent back from the High Court and the hearing is again resumed. In the present state of affairs both in the Court below and in the High Court, no one can be sure as to when the date will be fixed in a case and it is too much to expect from a litigant that he would every day make enquiry about the date of the hearing. There is no rule which imposes this liability on the parties to enquire the date of hearing. It would be one of the first principles of natural justice that the Court should inform the date of hearing to the parties. This was held in the case of Durga Parsad v. Met Ram (AIR 1923 All. 79 (2) (8), by a Bench of this Court in the following words; When a Court finds it necessary to adjourn a pending suit, it is part of the duty of the Court to see that the date fixed for the adjourned hearing is communicated to the parties concerned or to their legal representative, or at any rate to such of them as are present or rep--resented in Court when the adjournment takes place.
27. I respectfully agree with the observations of the Bench. That was also a case under O. IX, r. 13 for setting aside an ex parte decree and no notice of the adjourned date of hearing was given and that was taken as a sufficient cause for the defendant for not appearing and these observations were made in that connection."
28. On the contention of the plaintiffs' counsel that it was the duty of the defendant and his counsel even when not informed about the relevant dates to inspect the Court registers so as to become aware of the date of hearing, it was observed that these registers are maintained for the use of the Court itself and that whenever a date is fixed for the hearing or a date is adjourned it is bounden duty of the Court to inform parties or their counsel or their representatives of such dates. If they are not so informed the party not informed will not be bound by the proceedings.
29. The foregoing survey would show that except for the case cited as AIR 1954 Punjab 137, which adopted a strict and technical course about the. Interpretation of the word "'summons" as used in Article 164, some of the other Indian High Courts have after Independence attempted to follow a more liberal course, with a view to reduce the hardship and rigour involved in a too technical interpretation.
30. Regarding development of law in Pakistan in this field reference has already been made to Supreme Court case of Manager. Jammu and Kashmir State Property in Pakistan and Muhammad Swaleh, Lahore case of Mian Kamal Din and the Dacca case of Natai Sikari and others. It is necessary to take note of some other rulings which have bearing, direct or indirect on the controversy. In Barkat Bibi and others v. Fateh A.I AIR 1949 Lah.
31. 6, a civil suit was adjourned for awaiting return of file from the High Court where it had been summoned in a revision regarding framing of additional issues. When the same was received both the parties were absent. The suit was accordingly dismissed under Order IX Rule 3. The plaintiffs' argument that the trial Court on receipt of the file was to intimate the trial Court on receipt of the file was to intimate the order of the High Court to the parties and to take further steps in accordance with that order and that it could not finally dispose of the suit, was accepted. In Mrishen Lal Malhatra v. Madan Lal and others PLD 1950 Lah. 82, it was held that when a case is transferred by administrative order from one Court to. Another while ex parte proceedings are pending against the defendant, the latter is entitled to notice after the transfer inasmuch as he is still a party to the litigation within the meaning of para. 6, Chap. 13, Volume I, Lahore High Court rules and Orders and further that when such notice are not given, proceedings taken against the defendants after transfer, would be set aside. It was further held that there was nothing in the Code of Civil Procedure to prohibit a defendant against whom a case is proceeding ex parte, to join at any hearing of the case and start from that stage. It was also held that "the Code of Civil Procedure un courages free and fair contest and a litigant must always know the Court to which he should go for the purpose. He was aware of the Court which sent him summons or before which he had appeared, and where a change has occurred, he should be apprised of this change ; for it is his undoubted right to return to his case at any time before it was over". Accordingly, it was held that the defendant was entitled to a notice after the transfer of the case to another Court and all the proceedings taken against him since transfer including the ex parte decree were set aside. In Shafait Muhammad v. Mst. Latif Jan (PLD 1975 Azad J & K 114a distinction was made between the use of word "hearing" in Order IX, rule 6 and in Order XVII, rule 2 and while relying on the Lahore case of Mi. Barkat Bibiand others it was held that the word "hearing" in the former provision means the first date of hearing fixed in the summons while in the latter it contemplates the hearing of the suit on some later date to which it may be adjourned. If a defendant had already appeared in answer to the summons but had failed to appear subsequently on an adjourned date the case would fall under Order XVII, rule 2. In a recent case of Col. Atta-ur-Rehman v. Ahmad Yar Khan and 3 others (PLD 1980 Lah.
32. 181a learned single Judge has held that Article 164 of the Limitation Act applies to every application for setting aside an ex parte decree regardless of whether reasons given for having the ex parte decree set aside constitute sufficient cause as contemplated by rule 13 of Order IX, C. P. C. Or some other reasons are furnished for exercise of inherit jurisdiction under section 151, C. P. C. And further that the legislature intended to apply Article 164 to all applications for setting aside the ex parte decrees ; thus leaving no scope for application of residuary Article 181 to cover those applications which would not strictly fall under Order IX, rule 13: In Ch. Mehraj Din v. West Pakistan Province and 8 others (1978'SCMR 96the High Court had ignored the objection regarding limitation for filing an application under Order IX, rule 13 because the order was passed on account of a mistake committed by the office/Court itself. The presence of the counsel of a certain party was not noted on the file on account of multiplicity of proceedings. The trial Court passed finally an ex parte order. Application for setting aside such an order made beyond limitation was accepted. The High Court refused to interfere with it as noted above on ground of patent illegality. This Court while upholding the High Court decision observed that the Courts below acted upon sound legal principles in setting aside an ex parte order which had clearly been passed as a result of confusion created by the mistake of officials of the Court itself. It may be noted that although there is no discussion on the question of interpretation of Article 164 of the Limitation Act the bar of limitation was not allowed to operate when a patently illegal order based on the act of Court was sought to be resolved. This aspect of the present controversy would again be noticed when dealing with the affect of the decision of this Court in the case of Muhammad Swalah In yet another resent case (Munshi v. Muhammad Ishaque and another 1980 SCMR 466this Court while interpreting the word "notice" in Article 169 of the Limitation Act took a pregnatic view and held that it refers to the notice of the date on which the appeal is actually disposed of and not of any earlier notice. The view taken in the Lahore cases of Thakar Nil Chand and Allahabad case of Bachcha was approved. viz-a-viz various causes which could be treated as reasonable in the context of setting aside an ex parse decree. Obviously non service of `summons' is not the only reason. Able cause. Thus it would appear that only a part of the subject of reason--able causes was included in Article 164. Thirdly, and this is directly linked with the foregoing, the C. P. C. Itself has, as discussed in some of the authorities already, noted, maintained a distinction between `summons' and `notice'. The instances are spread over the entire Code, but the most glaring in the present context is in Rule 6 of Order IX which has co-relation both with rule 13 of the said Order as also Article 164 of the Limitation Act. Rule 6 reads as follows :- "6.--(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) if it is proved that the summons was duly served, the Court may proceed ex parse and pass decree without recording evidence ;
(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 ;
(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 tray 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."
33. The word `summons' has been used twice in clause (c) of sub-rule (1). Despite that word `notice' has been used in the same clause when a different type of process was intended to be issued thereunder, As would be presently shown, rule 6(1)(s), when providing for ex parte decree against the defendant deals with the first- hearing after the service of the initial summons referred t ; in rule 1 of Order IX ; which is issued in pursuance of sections 27 and 2 of the C. P. C. Clause (c) of rule 6(1) prohibits the passing of ex parte decree on the first hearing if the summons for that hearing though served, was not in time to enable the defendant to appear and answer, on the day fixed for hearing. In that case the hearing shall be postponed to another day, of which notice shall be given to him. Thus the purpose of the dis--tinction between the 'summons' and 'notice used in the same clause o rule 6(1) of Order IX becomes clear. It is interesting to note another dis--tinction in the same Rule.
34. Under sub-rule (2) of rule 6, the plaintiffs shall be burdened with the cost of adjournment, if the "summons" was not served or served in time, but if a further adjournment become necessary on account of non-service of "notice", or its late service, he may or may not be burdened with costs.
35. It is obvious from the foregoing that the word "summons" has been used in Article 164 in contradistinction from "notice" and other forms o processes, with a definite intention and purpose, which after due research made in some of the reported cases, appears to be nothing but to corelat this Article with the phraseology used in rule 13 of Order IX, which in turn has a bearing on and connection with the main provisions permitting ex part decree on the very first hearing of the suit, namely Order IX, rule 5. Rule 13 reads as follows; "13. 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 it aside ; and if he satisfied the Court that the summons was no 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 into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against ail or any of the other defendants also; Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim." (Added by Order XII of 1972).
36. The phrase "if he satisfied the Court that the summons was not duly served" stands apart and deals with only one cause, namely the non-service of the "summons"--the "summons" which has been the main subject of some preceding rules including rule 1 and rule 6. This part of rule 13 does not deal with any other "sufficient cause", which might have prevented the defendant from appearing. Non-service of 'summons', being itself a sufficient causes for non-appearance (1972 amendment is not under consideration) the question arises as to why it was not considered enough to use only one phrase i.e., "any sufficient cause "instead of singling out "one sufficient cause" of non-service of "summons" for a separate special treatment. There can be various reasons for this :-
(1) Simultaneously in the same Code a provision was being made for application of Rule 13 to ex parte decree passed not directly under Order IX Rule 6, but by reference, under Order XVII, rule 2 also --the former permitting the same on first hearing of the suit and the latter on an adjourned hearing. The non-appearance in the latter case due to non-service of a 'notice' (if necessary under a rule of natural justice or of law) for an adjourned hearing would carry implica--petition totally different from the non-service of `summons' issued for the first hearing. They needed separate treatment.
(2) Almost simultaneously in the same year (1908) a period of limitation was being provided in Article 164 of the Limitation Act, wherein it was considered just and proper to bind down the defendant under some thing which was more certain i.e. The service of 'summons' for the first hearing and make provision therefore ; but leave scores of other sufficient causes, all of which could not then be visualised and were taken care of under the.
37. General/residuary Article 181. There can be other reasons for the division of 'sufficient causes' in rule 13 into two categories, but for the present discussion it is not necessary to discover them.
38. The stage has now reached to consider some of the "causes" which can be treated as "sufficient" for the purposes of Rule 13. It is clear that the causes relatable to Order XVII, rule 2 would also be included. It reads as follows;- "2. 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 b Order IX or make such other order as it thinks fit."
39. There can be more then one reason for adjourning the case without fixing a date. For example when the file has been summoned by the revisional Court which has also passed a stay order, the trial Court might, instead of forcing the parties to attend on innumerable hearings, direct appearance on receipt of 'notice' If such a notice is not served, although the case would not fall in the category of non-service of "summons", it would constitute sufficient cause under second part of rule 13 read with Order XVII, rule 2. Another more specific example can be cited from the Lahore High Court Rules and Orders. In Chapter 13, Volume III thereof some situations have been visualised where fresh 'notice' would be necessary and non-service there of would furnish s6fficient cause under rule 13. Anxiety has been shown by several learned Judges of the superior Courts in the rulings noted earlier, on the argument that even in such like situations, when a cause is sufficient and rule 13 applies, the defendant might be unable to succeed thereunder due to bar of limitation-on account of strict interpretation of word "summons" in Article 164. And various ways have been thought to overcome and dilute the rigour thereof- one being the application of section 5 of the Limitation Act by amendment ; another by unlarging the scope of the word 'duly' when used with service of summons ; yet another by including other processes (including "notice") in the word "summons" used in Article 164 ; and lastly that Article 164, being applicable to cases of 'summons' for fresh hearing, all other situations are to be dealt with without limitation. With respect, the anxiety and its effect, both are undoubtedly understandable. On the other hand, again, with respect, it is not understandable why it was found essential in some cases to adopt the view that once served through initial summons it was the duty of the defendant to remains aware of such subsequent adjourned or new date even if it was impossible for him to do so, without a fresh 'notice'. The contrary view, it seems, was correct that unless it is provided by an amendment in the law there would be no permissible assumption in every case-such case depending on its own circumstances. As already noted, the law itself visualised a presumption otherwise. Even when a defendant is served with the initial `summons', if time was short for him to appear and answer, the law (Order IX, rule 6 (1)(c)) gave him the right to be served with a `notice', about the postponed hearing. Similarly, when after a superior Court sends a case to the trial Court after some proceedings, without fixing a date, it is not possible for the parties to remain in attendence on all the days thereafter during the entire Court hours so as to avoid dismissal of suit or an ex parte decree. The rules of natural justice do not countenance such a harsh treatment. The Lahore High Court Rules and Orders, already noticed, further clarify the position. Thus the above mentioned strict view of the matter is in no way justifiable. Similarly, as a result of strict view of Article 164 many genuine cases, though covered under the second part of Order IX, rule 3 having been treated under first part thereof for purposes of limitation, were thrown out, because the initial "summons" were duly served-even if years earlier. This is an incorrect view of the entire legal situation. It has led to confusion and bewilderment for the defendant who seeks to set aside a decree passed ex parte against him on an adjourned date of hearing of the suit.
40. Muhammad Swaleh's case which arose out of similar circumstances as in this case and many other cases, noted earlier, two remedies were visualised : One, that the order directing ex parte proceedings and/or an ex parte decree might, on account of lack of `notice'-explicit or implied-be coram non judice, void and a nullity which it would not be difficult for the Court to ignore without any restraints of `form' or limitation. Two ; that .In any case, such an order,/or the decree would be against the law and it would be permissible for the Court itself to recell the same. A question was then posed in this (Swelah's) case whether the application regarding such a course would be barred by Article 164 of Limitation Act? The learned Judges in view of the lawful recourse to another methodology to redress the legitimate grievance thought that "it is not necessary to decide whether the application filed by the appellants (defendants) for setting aside ex parte decree was governed by Article 164."
41. In that case, it was found on the basis of lack of due notice of date of an adjourned hearing that the ex parte order/ decree was unlawful and merited to be set aside/recalled. The trial Court had in fact recalled the same and the application to do so having been treated under section 151, C. P. C., Article 181 was applied to overcome the bar of limitation. On revision, the High Court had held that Article 164 applied and the application before the trial Court was barred by time. While leaving it open whether Article 164 or 181 would govern the situation, it was held by this Court that the High Court in its revisional jurisdiction, which had already been invoked by the plaintiff, could suo motu, redress the wrong. And because the limitation for filing a revision petition would be three years under Article 181, the order of the High Court would have been within time and in any case as there was no limitation for suo motu exercise of revisional jurisdiction, the High Court's failure to exercise its power, through this method, had led to injustice. In this background, therefore, the Supreme Court itself passed the order which the High Court should have suo motu passed in its revisional jurisdiction-leaving the question open as to what should be done by the trial Court when such a situation arise. It is in the last mentioned context that the learned counsel for the appellants, while conceding that subject to his submissions on merits, a recourse could be had to what was .'one in Muhammad Swaleh's case or for that matter, to the case of Khuda Yar, already noticed, the question of interpretation of Article 164 needed to be resolved, viz-a-viz the exercise of jurisdiction by the trial Court under Order IX, rule 13. He is correct in assuming that when the case is brought to the High Court and the Supreme Court by one or the other party the question of limitation would not present any difficulty whatsoever on account of the scope of their jurisdiction. But the litigant who has no time and/or means to come to the Superior Courts, notwithstanding the said ruling. When applying to the trial Court for recall of ex parte decree, is still faced with Article 164 of the Limitation Act. Same would apply to the subjective position of a learned trial Judge. How has he to deal with the bar of Article 164 if on merits he is convinced that either the ex parte decree should not have been passed, or for that matter sufficient cause existed for its setting aside-sufficient cause which is not relatable to due service, or otherwise of 'summons' for the initial hearing of the suit, but concerns subsequent hearings.
42. One way of interpreting Article 164 as analysed in the foregoing discussion, which does neither offend against the language used therein, nor against an rule of interpretation, is to corelate it with the language used in Order IX, Rules 6 and 13, C. P. C. This is what, to an extent, has been done in some of the rulings. The word `summons' used in third column in Article 164 is held to be the same `summons' as used in first part of Rule 13 as also in Rule 6. Similarly, the phrases an application by a defendant "for an order) to set aside a decree passed ex parte" against him, used in the first column of Article 164, and "was not duly served", used in its third column, have been borrowed from and have direct connection with rule 13. The said rule has three facts: One, when the ex parte decree is directly under clause (a) of rule 6 (1) of Order IX, then first pact of Rule 13 would apply because both the provisions relate to first hearing after the initial service of `summon.' The phrase "summons duly served" used in Article 164 has also direct connection with `summons duly served' used in rule 6 and "summons (not) duly served" used in Rule 13. Two ; Rule 13 is applicable also to the situa--tions arising independently of Rule 6 when, under rule 2 of Order XVII, the defendant absents himself on an adjourned hearing. In that case, it will not at all be on account of non-service of `summons' for the frist hearing, as interpreted above, but for "any (other) sufficient cause", visua--lised in the second part of Rule 13, which would include non-service of notice for a subsequent adjourned hearing. Three, as discussed earlier, a distinction is apparent between the first and second part of the main rule 13-the first relates to "summons"-dealing only with the first hearing and the second to the other "causes" including those relatable to the adjourned hearings also.
43. The multi facit rule of rule 13 is not being visualised for the first time. In Muhammad Swaleh's case also this was the approach proceedings the decision that it was not necessary in that case to decide the controversy about Article 164. The following observation is most meaningful in this behalf;- " . . . a reference to Order IX, rules 6 and 8 and Order XVII, rule 2 will show that the parties to a suit are penalised for their absence only on the date fixed for hearing or the date to which the hearing is adjourned.
44. Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned bearings. As rule 1 of Order IX will show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVI1, rule 2 provides that if a party fails to appear on "the day to which the hearing of the suit is adjourned" the Court may proceed to pass orders in accordance with Order 1X, Order IX, rule 6 and Order X'VII, rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned."
45. It has been emphasised that rule 13 has dual role : one when it is applied directly in connection with ex paste decree passed under rule 6 of Order IX and the other, by reference, when the ex parte decree is under Order XVII, rule 2. Similar views were expressed by the Supreme Court of India in Sangram Singh v. Election Tribunal AIR 1955 SC 425. When dealing with the adjourned hearing dealt with in Order XVII, it was held that Rule 2 thereof applies to the non-appearance on the day fixed for the adjourned hearing. "In that event, the Court is thrown back to Order IX with the additional power to made `such order as it thinks fit'; when it goes back to Order IX it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same way as it did, or could have done if one or the other parties had not appeared at the first hearing, that is to say, the right to proceed ex parte is a right which accrued from day to day, because at each adjourned hearing the Court is thrown back to Order IX, rule 6. It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it".
46. If Order IX, rule 13 applies to ex parte decree passed under clause (a) of rule 6(1) thereof and also by reference to similar decree passed under Order XVII Rule 2, and if the language used in Article 164 is relatable to rule 6(1)
(a) and first part of Order IX, rule 13, which caters for situation arising out of rule 6(1)(a), i.e. When `summons, was not duly served ; when it would be logical to assume that Article 164 relates to the ex paste decree passed under Rule 6(1)(a) on the first hearing and not to an ex parte decree passed on the adjourned hearing under Order XVII, rule 2. If a `notice' which was required by natural justice or by law to be served on a defendant to afford him an opportunity for appearance on an adjourned bearing and it was not duly served on him; then his case would not be governed by Article 164, because it would not be a case of first hearing for which "summons" was to be issued. This interpretation of Article would also permit a judicious interactions of first and third columns thereof ; in that, it would govern only those applications which seek the setting aside of that ex parte decree which has been passed after the service (or non-service) of the "summons" issued for the first hearing visualised under Order IX, rule 6(1)(a). The word "summons" is not only the key to the interpretation of third column, but it will also govern the entire article. When any cause is shown for non--appearance at the first hearing whether non-service of `summons' or any other sufficient cause, e.g. An accident on the way, an act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of the knowledge of the decree, when the `summons' was not duly served ; otherwise from the date of the decree. And the remaining cases, other than those of first hearing, would not be governed by Article 164.
47. The next question arises as to what would be the period of limitation for an application for setting aside an ex parte decree, not covered by Article 164. That application may or may not be under section 151. It could still be under the second part of rule 13 of Order IX, though in some cases section 151 might also apply. When defendant makes an applica--petition under Order 1X, rule 13 in connection with an ex parte decree, which is not passed under, rule 6 of order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of "null and void order" on the question of limitation; P is simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the exercise of rationalisation, in the light of experience gained during three quarters of a country. ex parte decree as also from the date of the knowledge of the decree therefore, they were within limitation on the assumption that the defendant had no `notice' of the date of hearing when the decree was passed-the decree having been passed on a date after the initial service of "summon" and on fresh hearing, after the return of the records from the High Court. In this view of the matter, the impugned judgment does not suffer from any defec regarding question of limitation. Although the course suggested an followed in Muhammad Swaleh's case could also be adopted in this case, in view of the legal position clarified earlier, it is not necessary to do so.
48. The last point on which leave was granted relates to the decision by the High Court on merits of the plea that the respondents were not served with the notices issued after the receipts of records from the High Court. The evidence and pleadings in this behalf having been scrutinised by us, we did not find any departure from the recognized principles of appreciation there--of, nor is there any real contradiction in the relevant pleadings and the evidence.
49. There is no force in these appeals. They are accordingly dismissed. There shall be no order as to costs.
…and 34 more citing cases