This appeal has been filed against the judgment and decree Additional District Judge Mirpur dated 8-9-2011 through which an appeal (revision) filed by the present appellant was dismissed.
2. Brief facts of the case are that the Respondent 1/defendant Sahibzada Abdul Rashid filed a suit for permanent injunction against the present appellant and authorities of Muni& Corporation Mirpur in the Court of Senior Civil judge Mirpur. It was stated in the suit that the present appellant/defendant has encroached the link road adjacent to Markazi Eid Gah situated at sector F/1 Mirpur on the northern side. The appellant/defendant has closed the said road in the grab of an allotment order dated 16-06-1990. It was prayed to issue a decree of permanent injunction and to cancel the said allotment order.
3. The Appellant/Defendant No. 1 submitted written statement and the right of defence of other defendants was closed as they neither appeared nor submitted the written statement before the Court despite many opportunities. Issues were framed in the light of versions of the parties. Later on ex-parte proceeding were ordered against the present appellant/defendant and an ex-parte judgment and decree was passed by the learned Senior Civil Judge Mirpur in favour of the respondent/plaintiff and against the present Appellant/Defendant No. 1 on 28-2-2008.
4. The present appellant/defendant submitted an application to set aside the said ex-parte judgment and decree in the Court of Senior Civil Judge Mirpur on 27-05-2008. After hearing the parties, the learned Senior Civil Judge dismissed the said application on 14-07-2010 declaring that without proof and filed beyond prescribed period of limitation. The present appellant/defendant filed a revision petition against the judgment of Senior Civil Judge Mirpur dated 14-07-2010 in the Court of District Judge Mirpur. The said revision petition was made over to Additional District Judge for hearing and disposal under law. The learned Additional District Judge converted the said revision petition in to an appeal and dismissed the same after hearing the parties. Hence this appeal.
5. Arguments were advanced by the learned counsel for the parties. Mr. Fazal Hussain Rabanni Advocate, for appellant argued that the findings recorded by the learned Additional District Judge Mirpur are against the facts and provisions of law. The learned counsel -requested to set aside the judgment and decree under appeal and to remand the case for hearing and disposal under law.
6. While controverting the learned counsel for appellant. Mr. Riaz Alarm Advocate, the learned counsel for respondent contended that present appellant did not take any interest in pleading the suit against him before the trial Court. The learned Senior Civil Judge ordered ex-parte proceedings against the present appellant and passed ex-parte decree against him which was based on sound and cogent reasons. The present appellant filed first appeal (revision) beyond the prescribed period of limitation which was dismissed by the learned Additional District Judge on the basis of limitation and without proof. earned counsel requested to dismiss the instant appeal and referred allowing precedents in support of his arguments.
1. PLD 1979 SC (AJK) 120
2. 1997 SCR 264
3. 2000 SCR 564
4. 2005 SCR 251
5. 2006 SCR 22
6. 2009 SCR 14
7. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and precedents referred minutely. Certain remedies are available against an ex-parte decree which are as under:--
(i) An application under Order IX, Rule 13 of C.P.C.
(ii) A review application under Section 114 of C.P.C.
(iii) An appeal under Section 96 of C.P.C.
(iv) An application under Section 12 of C.P.C. on the ground of fraud, misrepresentation or want of jurisdiction.
(vi) A revision against the Ex-parte judgment & decree.
The aggrieved person should take care to draft the pleadings and should mention clearly the grounds on which the reversal is sought and the provisions of the law relevant thereto. The present appellant filed a revisional petition before District Judge which was made over to Additional District Judge Mirpur who converted the said revision petition into an appeal, despite the said revision petition was competent as well. Any how the learned Additional District Judge disposed off the matter under appeal dismissing the said appeal, which was done in accordance with provisions of law.
8. An Ex-parte judgment and decree was passed against the present appellant on 28-02-2008. The present appellant filed an application to set aside the ex-parte judgment and decree in the Court of Senior Civil Judge Mirpur on 27-05-2008. Article 164 of the limitation Act provides 30 days to file an application for the same and the limitation shall start running from the date of decree. The learned Senior Civil Judge has recorded his findings on the point of limitation in accordance with provisions of law. The learned Senior Civil Judge declared the application filed by the present appellant beyond the prescribed period of limitation. The learned Additional District Judge opined that the said application was filed within prescribed period of limitation mentioning the period of limitation as 90 days. This opinion of the learner Additional District Judge is against the provisions of law and no sustainable. It is crystal clear that the present appellant filed his application to set aside the ex-parte judgment and decree in the Court of Senior Civil Judge Mirpur beyond the prescribed period of limitation. He A filed the said application after 89 days which was hopelessly time barred. The appellant did not take version of fraud, mis-representation or want of jurisdiction.
So the application filed in the Court of Senior Civil Judge Mirpur shall be considered as filed under Order IX, Rule 13 of C.P.C. for which 30 days period has been provided for filing the same.
9. As far the ex-parte proceedings ordered against the present appellant before the trial Court are concerned, the record reveals that the present respondent/plaintiff Sahibzada Abdul Rashid filed a revision petition before High Court against the interim orders of the trial Court dated 17-03-2007 and 02-04-2007. The record of the trial Court was summoned by the High Court. The learned counsel for the parties remained present before the trial Court on the dates fixed on the Memory Index. The learned counsel for both the parties were present in the trial Court on 14-12-2007 when the original file of the suit was sent back and placed before the trial Court and an order to summon the witnesses was passed. The learned counsel for the parties were also present on the next dates of hearing fixed for 03-01-2008 & 14-01-2008. No one on behalf of, present Appellant/Defendant No. 1 was present in the Court on 22-01-2008 and ex-parte proceedings were ordered against him. So the version taken by the present appellant that he was not aware of that the original file of the suit has been received back and placed before the trial Court, has no substance. It is a settled principle of law that knowledge of counsel is knowledge of client.
10. The appellant took an other version that his counsel went to Syria, so he could not appear before the Court. No proof has been placed on record that the said counsel went to Syria. Neither the statement of the counsel was recorded nor any affidavit was submitted by the said counsel before the trial Court. The appellant could not place any reasonable and reliable proof regarding his version. The precedents referred by the learned counsel for the respondents are in support of the version taken by them.
In the light of what has been discussed above, the learned Additional District Judge Mirpur has recorded his findings maintaining dismissal of the suit filed by the present appellant which are based on sound and cogent reasons. So, the instant appeal stands dismissed with by order as to costs.