' SHUJAAT ALI KHAN, J.---By way of filing this revision petition the petitioners have prayed for setting aside of judgment and decree dated 13-11-2002 passed by the learned Additional District Judge, Bahawalnagar.
2. Tersely, the facts of the case, as gleaned out from the instant petition, are that petitioners filed a suit for declaration to the effect that they being legal heirs of late Ghulam Mohayyudin and Mst.
Khurshid Begum are owners of the property mentioned in the plaint and respondents Nos.1 and 2 have no concern whatsoever with it and general power of attorney dated 3-10-1969 and registered sale deed dated 15-9-1973 as well as Review Order dated 26-5-1987 are result of forgery. The respondents/defendants contested the suit by way of filing written statement. After recording of petitioners' evidence the case was fixed for respondents' evidence for 24-3-1992 when nobody appeared on their behalf and ex parte proceedings were initiated against them. The learned trial court, vide judgment and decree dated 16-11-1992 decreed the suit ex pane. On 1-9-1994, two years after passing of ex pane judgment and decree, predecessor-in-interest of respondents Nos.1.1 to 1.3 moved an application for setting aside of the ex parte judgment and decree on which issues were framed and the same was dismissed vide order dated 3-2-1998. Aggrieved by this order, the predecessor-in-interest of respondents Nos,1.1 to 1.3 preferred an appeal before the learned Additional District Judge, Bahawalnagar, who vide impugned judgment and decree dated 13-11- 2002 accepted the same, set aside the ex parte judgment and decree dated 16-11-1992 and remanded the case back to the learned trial court for decision afresh after providing reasonable opportunity to the defendants/respondents to produce their evidence. Against the order passed by the learned Appellate Court the petitioners have filed the instant revision petition. During the pendency of this petition Saeeda Fatima breathed her last therefore respondents Nos.1.1 to 1.3 were arrayed as party.
3. The resume of the arguments advanced by the learned counsel for the petitioner is that under Article 164 of the Limitation Act, 1908, the period for filing of application for setting aside of ex parte proceedings is 30 days whereas the predecessor-in-interest of respondents Nos.1.1 to 1,3 filed the application after two years of passing of the ex parte order; that the predecessor-in-interest of respondents Nos.1.1 to 1.3 did not advance any plausible reason for such belated move seeking setting aside of ex parte order; that the ground taken by the predecessor-in-interest of respondents Nds.1.1 to 1.3 in her application for setting aside of ex parte judgment and decree was not tenable as her claim was that she being away to United States of America could not appear before the Court has no worth as not only she engaged Sh. Karim ud Din, Advocate to represent herself in the said suit but also appointed her husband namely Syed Muhammad Ashraf Shah as her attorney to pursue the matter; that while appearing in the witness box she herself admitted that after coming back from abroad in the month of June, 1994, she contacted her counsel who told that due to non-production of evidence she had been proceeded against ex parte but instead of filing the application for setting aside of ex parte proceedings forthwith she kept on waiting till 1- 9-1994; that her conduct disentitles her for the claim sought in the application for setting aside of ex parte order; that valuable rights had accrued in favour of the petitioners but they have illegally been deprived of by the Appellate Court anti that the diseases from which she was allegedly suffering were very much treatable in the country and her visits to America was of routine nature as her children were settled there. In support of his contentions, learned counsel has referred to the cases of Cantonment Board Kharian Cantt. v. Muhammad Shafi PLD 1991 SC 400, Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (1975 SCM R 304) and Mrs. Akhtar Mansoor and others v. Punjab Government and others (1983 CLC 2765).
4. Conversely, learned counsel appearing on behalf of respondents, while defending the impugned order, submits , that provisions of Article 164 of the Limitation Act, 1908 were not applicable to the application filed for setting aside of ex parte judgment and decree rather the period of limitation as prescribed under Article 181 of the said Act was applicable, thus, the application filed by predecessor-in-interest of respondents Nos.1.1 to 1.3 was well within the time of limitation; that the circumstances narrated by the predecessor-in-interest of respondents Nos.1.1 to 1.3 fully justify the non-production of evidence by the defendants; that law favours adjudication of matters on merits instead of technicalities; that husband of late Saeeda Fatima was putting up in America, therefore, he could not pursue the matter as Special Attorney of said Saeeda Fatima; that predecessor-in- interest of respondents Nos.1.1 to 1.3 being female her case deserved leniency and if the order otherwise is illegal the same cannot be allowed to hold the field simply on the ground that the move for setting aside of such order was time barred. In addition to his oral submissions learned counsel has relied upon the cases reported as Muhammad Iqbal through L.Rs, and others v. Khan Muhammad through L.Rs, and others (PLD 1999 SC 35), Abdul Majid v. Muhammad Afzal Khokhar (1993 SCM R 1686), Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (PLD 1981 SC 21), Ghulam Amir v. Irshad Ahmad and others (2002 CLC 263), Rehman Khan v. Abdul Kabir, Advocate (2002 M LD 1703), Fazal Bibi and others v. Abdul Haq and others (1991 CLC 291).
5. I have given anxious consideration to the arguments advanced by learned counsel for the parties and have also gone through material available on the file in addition to perusing the case- law cited by the learned counsel in support of their respective version.
6, Firstly, taking up the preposition as to the limitation for an application for setting aside of ex parte order, I am of the view that according to Article 164 of the Limitation Act, 1908, a period of thirty days has been prescribed for filing of any application for setting aside of ex pane judgment and decree.
Insofar as the question of applicability of provisions of Article 181 of the Limitation Act, 1908 is concerned, suffice it to observe that the same relates to the cases where period of limitation has not been provided. Further, a person can avail benefit of the said provision when he was not aware about the pendency of proceedings against him. Reliance in this regard is placed on the case reported as Secretary Education Department, Government of N.W.F.P. Peshawar and others v.
Asfandiar Khan (2008 SCM R 287) wherein the august Supreme Court of Pakistan has inter alia held as under:- "We are not persuaded to agree with learned counsel for the petitioner. Admittedly petitioners Nos.1, 4, 5 and 6 the official defendants appeared at the initial stage of the suit but did not participate in the proceedings as a result of which they were declared ex parte on 22-10-2002 while petitioner No,3 was declared as such on 7-2-2003. It was only defendant No,7, who contested the suit but his name was also deleted from the array of respondents on the application of respondent No,1 Asfandiar Khan on 27-9-2003 whereafter ex pane evidence was recorded on 12-12-2003 and ex parte decree was passed on 23-12-2003. It was in the execution proceedings application for setting aside ex parte decree was moved which was quite belatedly.
Since it was well within the knowledge of petitioners that suit was pending against them and were declared ex parte as such Article 164 of Limitation Act would be applicable in their case whereby period to move application for condonation of delay is 30 days. In the similar circumstances, it was held by this Court in the case of Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 that defendant joined proceedings before the trial Court and afterwards on his absence an ex parte decree was passed. Defendant after four months filed application for setting aside ex parte decree which application was dismissed being time-barred. Article 164 of Limitation Act provides 30 days to file application for setting aside ex parte decree because petitioner/defendant had participated in the proceedings before the trial Court".
A perusal of the afore-quoted portion of the judgment of the apex court of the country makes it abundantly clear, that provision of Article 181 of the Limitation Act, 1908 are applicable only to the ex parte judgments and decrees where the defendant never joined the proceedings whereas in the cases where the defendant does not appear after joining the proceedings the provisions of Article 164 of the Limitation Act, 1908 are applicable. In the case in hand, the predecessor-in-interest of respondents Nos.1.1 to 1.3 duly joined the proceedings by hiring legal services of a counsel but later on she failed to produce her evidence, thus, the period of limitation as prescribed under Article 164 of the Limitation Act, 1908 is applicable.
7. Moreover, while filing the application for setting aside of expert judgment and decree, predecessor-in-interest of respondents Nos.1.1 to 1.3 did not raise any plausible reason for her absence or non-production of her evidence. Her stance that due to serious illness she was out of country can be considered as valid to her extent only but the same cannot justify the default on the part of her counsel or Special Attorney. The Hon'ble Supreme Court of Pakistan, in the matter reported as Javaid Siddiq v. Muhammad Javaid Umar Khan and another (2008 SCM R 1417) while dealing with the said preposition has inter alia observed as follows:-- "We have considered the contentions raised by the learned counsel and have gone through the documents appended with this petition. It is reflected from the perusal thereof that the Vakalat Nama on behalf of the petitioner was filed on 10-10-2000 and the time was secured for applying for leave to defend. The case was taken up on 13-10-2000 but nobody turned up from the side of the petitioner. The case was again adjourned for 16-10-2000. Even on the said date none appeared from the petitioner's side. Accordingly, the proceedings against the petitioner were taken ex parte. Where after, on 19-10-2000 after recording the ex parte evidence the suit was decreed. The present petitioner in his application under Order IX, Rule 13, C. P. C. Had not given any reason for his own absence or that of his learned counsel. He simply stated without advancing any cogent reason that the same was not willful".
' Even otherwise, while appearing in the witness box as P. W.1, the predecessor-in-interest of the respondents in her examination-in-chief stated that she came to Pakistan in June 1994 and contacted with her counsel namely, Sheikh Karim-ud-Din, Advocate who told her that due to non- production of evidence ex parte proceedings were initiated against her. From the statement of P.W.1, it is established that she came to know about the order of ex parte proceedings in June, 1994 but she has not advanced any confidence inspiring reason for her filing the application for setting aside of the same on 1-9-1994. The conduct of the predecessor-in-interest of the respondents speaks volumes about sluggishness on her part. It is universally acknowledged principle that the law favours the vigilant and not the indolent. While elaborating the consequences, of lack of interest by a party the Hon'ble Supremo ,Court in case titled "Rehmat Din v. Mirza Nasir Abbas"
(2007 SCM R 1560) has laid law to the following effect:-- It is no doubt that the Courts had been lenient and had been condoning some negligence i,e, negligence to the extent to which it is regarded as human but gross negligence had never been condoned but Courts had always been strict in demanding proof of sufficient cause for every day which has expired after the period of limitation".
8. It is also important to mention over here that after passing of ex parte judgment and decree in their favour, valuable rights accrued in favour of the petitioners and they cannot be deprived of the same until and unless each day's delay is explained by the respondents. In the case of Rehmat Din (supra), the Hon'ble Supreme Court of Pakistan has inter alia observed as under:-- Therefore, we are not inclined to condone the delay as respondents have accrued vested rights by afflux of time. Expiry of limitation vests a person with a valuable right. It cannot be taken away by condonation of delay. It is well known maxim "Delay defeats equities" and words of Lord Camdan, a Court of equity "has always refused its aid to stale demands, where a party has slept upon his rights and acquiesced for a great length of time".
9. Insofar as the case-law cited by the learned counsel appearing on behalf of respondents is concerned, I am of the humble opinion that same is not applicable to the case in hand inasmuch as in the case of Fazal Bibi and others (supra) the proposition involved was that a defendant who was proceeded against ex parte was entitled to join the subsequent proceedings or not whereas in the matter of Rehman Khan (supra) ex parte proceedings were set aside on the ground that summons were not duly served on the defendant. Insofar as case of Messrs Rehman Weaving Factory (supra) is concerned the ex parte proceedings were set aside on the ground that defendants were not served during the post remand proceedings while in the matters of Abdul Majid and Muhammad Iqbal (supra) the question involved, in pith and substance, was that nobody should suffer due to the act of the court. As far as case of Ghulam Amir (supra) is concerned, the same is at poles apart from the facts and circumstances of the present case as the same deals with the period of limitation for an appeal to be filed before the High Court when the District Judge lacks pecuniary jurisdiction to hear the said case.
10. Now coming to the respondents' contention that their predecessor-in-interest being female deserved leniency, I do not find myself in agreement with the learned counsel for the respondents on this I point as all parties before the law are equal irrespective of their gender. If the courts start decision of cases in view of the gender of the parties justice would not be possible.
11. The epitome of the above discussion is that the application filed by the predecessor-in-interest of respondents Nos.1.1 to 1.3 was hopelessly time barred and no plausible reason was advanced for setting D aside ex parte judgment and decree passed in favour of the petitioners. Court (sic).
Consequently, this petition is accepted and the impugned order dated 13-11-2002 passed by the appellate court is set aside and that of the learned trial court dismissing the application is restored.
The parties are left to bear their respective costs. '