YAR MUHAMMAD, Petitioner Ali Haider on 27-4-2000 filed a suit in the Court of Civil Judge, Gilgit against the respondents. On 07-09-2000 the respondents also filed a cross-suit in the same Court. Both the suits entered in the relevant register as suit No.56/2000 and suit No.157/2000 respectively. The defendants in both the suits filed their written statements. After completion of pleadings, issues framed in the suits. Since the subject matter in both the Suits was common as such on 25-06-2007 Suit No.56/2000 was consolidated with Suit No.157/2000 and accordingly evidence of the plaintiff was invited and recorded in suit No.157/2000 and closed on 23-6-2008 and thereby the suit .was deferred to some further date for defendants' evidence. On 23-05-2011 when the suit was fixed for the evidence of the present petitioners/ defendants they absented themselves eventually they were proceeded against ex parte and the case was adjo .urned to 15-6-2011 for arguments. On the date ex parte arguments heard and matter was adjourned to 20-6-2011 for order and accordingly on the fixed dated ex parte decree was passed in favour of the plaintiffs of Suit No.157/2000.1t will be worth to mention here that on 22-3-2011 the suit was fixed for the evidence of the present petitioners the Presiding Officer was on leave therefore, the case was adjourned to 23-5-2011 by the ministerial officer of the Court fixing the same for defendant's evidence as such the ex-parte proceedings initiated on 23-5-2011 was the date had fixed by the reader of the Court.
2.On 29-10-2011 the present petitioners filed an application under Rule 13 of Order IX, C.P.C. accompanying with an application under Section-5 of the Limitation Act for condonation of delayed period and seeking reversal of the ex parte decree but the application was dismissed on 09-4-2014 holding was barred by time. Being aggrieved and dissatisfied with the order, the petitioners filed an appeal in the Court of District Judge which was adjudicated on 27-11-2014 by the learned Addl. District Judge dismissing the appeal hence this revision petition for reversal of the Judgments/orders of the learned Courts below and by accepting the application filed under Rule- 13 of Order IX, C.P.C. the exparte decree dated 20-6-2011 may be set aside.
3.I have heard Mr. Muhammad Qasim Shehzad Advocate for the petitioners and Mr. Akhtar Ali Advocate for the respondents at some length and have gone through the record of the case with the able assistance of the learned counsel. The learned Counsel for the petitioner argued that on 22-03-2011 when the case was fixed for the petitioner's/defendant's evidence the Presiding Officer was on leave and the case was adjourned by the reader of the Court to 23-5-2011 fixing same for same purpose, was illegal because ministerial officer of the Court by any way is not authorized or legally competent to fix a case for some purpose and submitted that the reader of the Court is authorized only to hand-over to the parties slips of paper specifying other date fixed for proceedings with the suit. He contended that since the case on 23-5-2011 was fixed for DWs by the reader of the Court and on so appointed date the petitioners/defendants have been penalized as such the whole proceedings taken in the matter right from 23-5-2011 and onwards will be considered illegal as such limitation against illegal order will be applied as provided under Article- 181 of the Limitation Act. He next argued that both the Courts below have erred on this point while governing the matter under Article 164 of the Limitation Act.
4.Mr. Akhtar Ali Advocate the learned Counsel for the respondents on the other hand submitted that Article-164 of the Limitation Act will be applicable in the present dispute because the petitioners have attended the case, participated in the proceedings and even have cross- examined the PWs. He argued that the position becomes different when the petitioner have attended the case therefore, in such circumstances Article-181 of the Limitation Act could not be involved. He contended that the application under Rule 13 of Order IX, C.P.C. for setting aside the exparte decree was required to have filed within 30 days from the date when the ex-decree was passed.
5.# TS## The instant dispute has started right from 23-5-2011 which date was fixed by the Reader of the Court fixing the case for defendants' evidence. Legally, when the A Presiding Officer is on leave the ministerial officer of the Court can only handover-duly signed slips of papers to the parties specifying other date fixed for proceedings with the suit or proceedings in terms of Rule 5 of Order XVII, C.P.C. and the ministerial officer cannot pass any order resulting in penal consequences.
However, the Court on the adjourned date would be competent to conduct the same proceedings as scheduled on the day when the Presiding Officer was absent or 'in his dissension might adjourned the case. Viewing the in hand matter in this background, I am of the view that the date 23-5-2011 which was fixed by the ministerial officer of the Court for defendants' witnesses and the defendants remained absent, the Presiding Officer did not take the case directly to the penalizing side rather the learned Court while proceeding the petitioners/defendants against ex parte, adjourned the case to 15-06-2011 for arguments. On this date too the petitioners/defendants again remained absent but the learned Court on the date after hearing arguments adjourned the case to 20-6-2011 for order. On this date the petitioner again remained absent, hence the impugned ex parte decree was passed against them. From 23-5-2011 to onwards the case has been adjourned for two times but the petitioners did not appear leaving no room for the trial Court except to pass the impugned ex parte decree. In view of these facts, I feel in safe conclusion that on 23-5-2011 which date was fixed by the ministerial officers no illegal order was passed against the defendants/petitioners vitiating the whole proceedings that culminated into the impugned ex parte decree. ## TE## 6.Before passing the impugned exparte decree the parties have fully participated the proceedings of the case.
The respondents/plaintiffs in suit No.157/2000 have examined witnesses whereas the defendants/petitioners have been afforded full opportunity to subject the witnesses in cross- examination. The petitioners/defendants abruptly have remained absent from the proceedings, therefore, their case comes within the ambit of Article 164 of the Limitation Act which provides 30 days period to file application for setting aside an ex-part decree. Moreover, the case had adjourned for next two dates by the learned trial Court for hearing arguments and ronouncement of Judgment are to be treated as dates of hearing in which the petitioners have remained absent without any lawful justification.
7. An order passed by the Court resulting penal consequences can easily be set aside if such order was passed when the case was not fixed for hearing provided that the application for setting aside such an order has been filed within time because such type of order provides only a ground for setting aside an order but the limitation for assailing such order as provided under Article-164 shall stand apply.
8. The application for setting aside the ex parte decree dated 20-6-2011 has been moved after lapse of limitation fixed under Article-164 of the law of limitation. The application under section-5 of the Limitation. Act contains nothing suggesting that on the dates 23-5-2011, 5-6-2011 and 20-6-2011 the petitioners had remained absent from the Court for some reasons beyond their control. ## TE## Suppose that out of the petitioners the person who appears in the Court as attorney for the others hand proceeded to Islamabad for treatment of his daughter no details in this regard have been furnished by him in the said application with supporting document. Period of delay is condoned provided that the applying party succeeded to establish that each day of delay was due to some unavoidable reasons. Petitioners are in numerous therefore, they would have to be vigilant towards their case so that same should not be suffered and for that purpose they were required to appear before Court through appointing any person as attorney. Law demands that each and every day of delay must be proved by the party concerned to take benefit of Section-5 of the Limitation Act.
9. I have also gone through the evidence brought on record by the respondents to substantiate their claim. The evidence so brought by them on record is sufficient to convince the mind of the learned Judge for passing an ex parte decree. Mere saying that the evidence was not brought under discussion in the impugned judgment does not vitiate the same particularly when the judgment has been passed ex parte.
As a result of above discussion, I am of the considered view that this revision is devoide of any legal force and dismissed.