1. SARDAR ABDUL HAMEED KHAN, J.--- The supra noted appeal has been addressed against the judgment and decree of Additional District Judge, Kotli dated 20-6-2012, whereby the judgment of Civil Judge Court No.II, Kotli dated 11-1-2012, was upheld and the application for setting aside an ex parte decree and judgment of the said Court dated 30-5-2009 has been dismissed.
2. Precise facts forming the background of the instant appeal are that Raja Lall Khan, applicant/appellant herein filed an application for cancellation of ex parte decree dated 30-5- 2009. It was averred that during proceedings of case titled. "Muhammad Aslam v. Raja Lal Khan", the counsel for the defendant, without information to the defendant gave up the prosecution of the case, whereupon, the learned trial Court passed the impugned decree without serving fresh notices upon the defendant/applicant. The application was contested by the plaintiff/ respondent herein, by filing objections stating therein, that the application is not maintainable because the defendant had appeared before the trial Court, filed objections. It was further averred that the application is time barred. The learned Trial court after hearing the parties vide judgment and order dated 11-1-2012 rejected the application observing, that the application has been filed after the prescribed period of limitation in order to procrastinate the execution process. Feeling aggrieved from the said judgment defendant/appellant preferred an appeal before the learned Additional District Judge, Kotli which also met the same fate and stood dismissed vide judgment and decree dated 20-6-2012 which is assailed before this Court through the above titled 2nd appeal.
3. ' Sardar Ishtiaq Khan Advocate, the learned counsel for the appellant reiterated the facts and grounds narrated in the appeal and stated that the learned trial Court, during the proceedings, on 30-5-2009 passed an ex parte decree against the appellant having knowledge of the fact that the defendant/appellant remained present before the Court, filed objections but due to withdrawal of prosecution by the learned counsel for the defendant/appellant, he could not appear before the Court as he did not have knowledge of withdrawal of the learned counsel. The learned counsel maintained that it was enjoined upon the learned trial Court to issue fresh notices and make sure the service upon the defendant in order to meet the ends of justice. The learned counsel maintained that the learned 1st appellate. Court also failed to consider and comply with the mandatory provisions of law and concurred with the findings of the trial Court, hence, findings of both the courts below are liable to be reversed. It was vehemently contended by the learned counsel that both Courts below have erred in law regarding limitation and contended that the instant case is covered under Article 181 and not under Article 164 of Limitation Act. The learned counsel, while referring 2003 YLR 1596 and 2003 YLR 2208 craved for acceptance of the appeal to.
4. On the other hand, Raja Muhammad Najeeb, Advocate, representing the respondents supported the impugned judgments and decrees and submitted that the defendant absented himself, deliberately, after having appeared before the trial Court, therefore, the learned trial court rightly passed the impugned judgment which after detailed scrutiny stood endorsed and approved by the 1st Appellate Court. It was argued by the learned counsel that neither misreading or non- reading of record or evidence or any misconstruction of any law has been painted out, hence, concurrent findings of facts cannot be disturbed in 2nd appeal. The learned counsel further contended .That the application for setting aside ex parte decree was time barred even from the date of knowledge. It was further added that the appellant firstly joined the execution proceedings of the impugned decree, filed objections prayed for suspension of execution proceeding in early 2010 but did not bother to file application for setting-aside the impugned decree/judgment till end of 2011 for about a period more than 1-1/2 years, wherefrom the mala fide of the appellant is established. The learned counsel further contended that the case in hand is. That of Article 164 of Limitation Act. It was contended with full vehemence that the appellant was served properly and then absented deliberately and the trial Court was left with no choice to proceed ex parte. Finally the learned counsel prayed for dismissal of the appeal with costs.
5. I have heard the learned counsel for the parties and gone through the record of the case with my utmost care.
6. The point of controversy emerged from the arguments of the learned counsel for the parties relates to the point of limitation whether the instant case will be decided in light of Article 164 or 181 of the Limitation Act. For proper appreciation both the above said Articles, the relevant portion of the case law referred by the learned counsel for the appellant along-with Order IX, Rule 13 of the C.P.C. Are reproduced hereunder:--- Article 164 of the Limitation Act, 1908.
7. By a defendant, for an order to set aside a decree passed ex parte.90 days The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree.
8. Article 181 of the Limitation Act, 1908.
9. Applicant of which no period of limitation isThree Years When the right to apply accrues provided else- where in this Schedule or by section 48 of the code of Civil Procedure, 1908.
10. 2003 YLR 2208: "The question that requires determination in this case is as to whether the application filed by respondent/defendant on 14-9-1998 was barred by time, answer to this question is in negative.
11. Since the respondent had appeared in response to summons issued and contested the suit by filing written statement on 4-12-1994, and thereafter, absented on 5-5-1995, therefore, the period of limitation available to respondent/defendant for filing application for setting-aside ex parte decree was 3 years under Article 181 of the Limitation Act and not 30 days. A similar proposition came up for hearing before the august Supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21) and before this Court in WAPDA v. Muhammad Hayat Khan and 7 others (PLD 1986 Peshawar 81) and 2001 CLC 1976, in which the august Supreme Court of Pakistan and this Court made it clear that in which cases Article 164 of the Limitation Act would be applicable and which cases would be governed by residuary Article 181 of the Limitation Act. The case in hand falls under the residuary Article 181 of the Limitation Act, which provides 3 years limitation period for filing application for setting-aside the ex parte decree. The application filed by the respondent was, therefore, within time".
12. "Keeping in view the dicta laid down by the august Supreme Court of Pakistan as well as this Court, I am of the firm view that the application filed by the respondent for setting-aside the ex parte decree was not barred by time and the Courts below have rightly appreciated the legal position.
13. The law even otherwise envisages determination of disputes on merits rather on technicalities, as held as Fayyaz Rasool v. Government of N.-W.F. P. (2001 CLC 1976)".
14. 2003 YLR 1596: "It looks unbelievable that the petitioners themselves absented from joining the proceeding. Law favours adjudication of the matter on merits or rather than knocking out the parties on technical grounds. Both the Courts below have misconstrued the evidence and have not passed the order dated 19-4-1992 for passing ex parte order against the petitioners and also order dated 25-5- 1992, without adverting to the provisions of Order V, Rule 20 of C.P.C. For issuing proclamation in the newspaper for proceeding through substituted service.
15. Resultantly, both the orders dated 17-10-1994 dismissing the application under Order IX, Rule 13 of C.P.C. For setting-aside the ex parte decree and the order dated 6-3-2000 dismissing the appeal of the petitioners, are set aside. The application under Order IX, Rule 13 of C.P. C. Dated 26-1-1993 filed by the petitioner is accepted. The case is remanded to the learned trial Court allowing the petitioners to file the written statement and thereafter the same be decided on merits after framing the issues and recording the evidence. The parties to bear their own costs".
16. In view of the above reproduced case law as well as provisions, it can safely be concluded that Article 164 of the Limitation Act, 1908 applies for an application for setting-aside the ex parte decree. Whereas, the case in hand is that the appellant/defendant appeared and contested the suit, thereafter, absented himself after filing written statement, hence, Article 181 of the Limitation Act will apply. It is added that the application of the appellant is supported by an affidavit but there is no counter affidavit in rebuttal. In this way the application with affidavit is to be taken as ample proof for genuineness of the contents of the application, as well as the grounds for condonation of, limitation as section 5 of the Limitation Act is also attracted in the instant case. Moreover, one cannot be punished for error or omission of the court, because in this case the counsel of the appellant was contesting the case by appearing before the trial Court i.e. (Civil Judge Court No. II Kotli) and filed an application for withdrawal of his authority vide application dated 6-4-2009 and also got his statement recorded thereon. Wherein, it is mentioned that the defendants should be summoned. The interim orders of the trial Court passed on the original file (Suit No.1 of 2008 dated 2-1-2008) interim order dated 6-4-2009, 20-4-2009 and lastly order dated 30-4-2009, wherein instead of issuance of notice to the defendants in light of the order dated 6-4-2009 and the statement of the counsel, the learned Civil Judge Passed ex parte order against appellants/ defendants and on the same day recorded ex parte statement of the plaintiffs and affixed the case for ex parte arguments for 12-5-2009.
17. A glance perusal of this order suggests that this order cannot be termed as judicial order and it is found that learned Civil Judge has erred in passing the impugned order instead of giving a fair opportunity to the defendants of being heard. It was just and proper for the trial Court to summon/notice to the parties instead of proceeding ex parte.
18. When it is found that the original order which is the bone of contention between the parties, it cannot be termed as judicial order, then structure built upon the foundation of this order must fall to earth to D meet the ends of justice and principle of adjudicating the controversy between the parties on merit instead of pushing out the parties on technical grounds.
19. From the perusal of Article 164 read with Order IX, Rule 13 of C.P.C., it is evident that Article 164 applies where the summons was not E duly served, whereas, the Article 181 applies when the right to apply accrues in all other cases.
20. In light of above said case-law the right apply to the appellant firstly accrued on the date when the learned counsel gave up his prosecution i.e. 6-4-2009, in case the fresh notices/summons would have been issued for the service of the defendants. Even otherwise from the above date the application was within the period of 3 years and both the courts below misconstrued the law on the point. Hence; it is concluded that the application was filed within 3 years time, which is with limitation.
21. The application of Article 164 of Limitation Act, in the instant case is not attracted because there is no question of service effected upon G the parties because no fresh summons/notice was issued by the trial Court as said above.
22. There is another aspect of the case that when the appellant/ defendants appeared before executing. Court filed objections and prayed for suspension of the proceedings but did not mention a single word for setting-aside the impugned ex parte decree. Wherefrom, prima-facie, it appears that the appellant/defendants due to ill advise of the counsel remained indolent to seek remedy at earliest opportunity. However, in view of the matter of attraction of Article 181 of Limitation Act, no further deliberation on this point is necessary.
23. In light of the above discussion by accepting the appeal of the appellant, both the impugned orders of the learned Additional District Judge Kotli dated 20-6-2012 and Judgment and Decree of Civil Judge Court No.II Kotli dated 11-1-2012 are hereby set-aside. The Application (No.47 of 2011 dated 14-9-2011) of the appellant/defendants stands accepted.
24. Resultantly, the ex parte decree and judgment of the Civil Judge Court No. II Kotli dated 30-5-2009 passed in File No.1 of 2008 instituted on 22-1-2008 is hereby set-aside. The case is remanded to learned trial Court with the direction to proceed in accordance with law and dispose of the suit on priority basis. The parties are directed to appear before the Civil Judge Court No.II Kotli on 11-11-2014.
25. Order announced. The record of the courts below shall be sent back.