SHAKEEL AHMAD, J.- Syed Sardar Ali, petitioner herein, through the instant Civil Revision, has questioned the judgment / order dated 15.03.2016 of the learned Additional District Judge-V, Nowshera, whereby, appeal of the respondents-defendants against dismissal of their application for setting aside the ex-parte decree dated 16.09.2011 has been accepted on the payment of cost of Rs.5,000/-.
2. Brief facts of the case are that Syed Sardar Ali, petitioner herein, in the capacity of plaintiff, filed a suit against Said Ali & others seeking therein declaration, permanent injunction and possession of the suit property (fully described in the head note of the plaint), which was contested by them by filing written statement but, due to their absence, they were placed ex-parte and after recording ex-parte evidence, the suit was decreed in favour of the petitioner-plaintiff vide ex-parte judgment and decree dated 16.09.2011. Being aggrieved, the respondents-defendants, on 21.11.2013, submitted an application for setting aside the ex-parte judgment and decree, which was contested by the petitioner-plaintiff by filing written reply. After hearing both the parties, the said application was dismissed by the leaned Trial Court vide order dated 14.04.2015. Feeling dissatisfied, the respondents-defendants preferred an appeal before the learned Additional District Judge-V, Nowshera, who accepted the same vide judgment / order dated 15.03.2016 by setting aside the ex-parte judgment and decree dated 16.09.2011 on the payment of cost of Rs.5,000/-. Not contented therewith, the petitioner-plaintiff has come to this Court through the instant revision petition.
3. The learned counsel appearing on behalf of the petitioner contended that the respondents-defendants failed to give any cogent reason in the application filed for setting aside the ex-parte decree. They had the knowledge of the passage of the ex-parte decree but despite of that the application was submitted with a delay of two years eleven months and nine days. The same was, therefore, barred by time. He next argued that though the application for setting aside the ex-parte decree was hopelessly barred by time but no application for condonation of delay was moved by the respondents-defendants. The learned Appellate Court has failed to appreciate this position, which resulted in grave miscarriage of justice, therefore, warrants interference of this Court. The learned counsel in order to add vigor to his submissions placed reliance on the cases of Master Abdul Basit & another vs. Dr. Saeeda Anwar [2013 YLR (Sindh) 375] & Khapal Badshah vs. Afzal Khan & others (PLD 2015 Pesh 59).
4. Arguments heard and record perused with the able assistance of the learned counsel for the petitioner .
5. The argument of the learned counsel for the petitioner that application submitted by the respondents- defendants for setting aside the ex-parte decree was barred by time has no force at all. The question that requires determination in this case is as to whether the application filed by the respondents-defendants on 21.11.2013 for setting aside the ex-parte decree dated 16.09.2011, was barred by time, as was contended by the learned counsel for the petitioner, the answer in this regard is in negative. Since the respondents-defendants had appeared before the learned Trial Court, in response to the summons, issued to them and contested the suit by filing their written statement on 24.05.2010 and thereafter absented themselves, therefore, the period of limitation, available to them for setting aside the ex-parte decree was three years as envisaged under Article 181 of the Limitation Act and not thirty days. A similarly proposition came up for hearing before the Hon'ble Supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd) Bahawalnagar vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21) and before this Court in WAPDA vs. Muhammad Hayat Khan & others (PLD 1986 Pesh 81), in which, the apex Court as well as this Court made it clear that in which cases, Article 164 of the Limitation Act would be governed and which cases would be governed by residuary Article 181 ibid. The case in hand falls under the residuary Article 181 of the Limitation Act, which provides three years limitation period for filing application for setting aside the ex-parte decree. The application filed by the respondents-defendants was, therefore, within time.
6. Coming to the contention of the learne d counsel for the petitioner that proper reasoning were not given by the respondent in the application for setting aside the ex-parte decree is devoid of force. A similar preposition came up for hearing before this Court in WAPDA vs. Muhammad Hayat Khan & others (Supra) , in which it was held:- "The inadequacy of sufficient cause should not stand in the way of justice on merits. It should not culminate into the end loss to allow dismissal of suit in default or ex parte decree intact, for the end objective of the Courts is to do full and substantial justice in the cause after allowing due opportunity of hearing to the parties. The adversary , who has obtained an ex parte decree must have faced the rigours and hardship of fruitless litigation, but for that he can be compensated by award of adequate costs."
7. Keeping in view the dicta, laid down by the apex Court as well as this Court, I am of the firm view that the application filed by the respondents-defendants for setting aside the ex-parte decree was not barred by time and the learned Appellate Court has rightly appreciated the legal position. The law even otherwise envisages determination of disputes on merits rather on technicalities, as held in Fayyaz Rasool vs. Government of N.- W.F.P (2001 CLC 1976).
8. I am unable to find out any material irregularities or any jurisdictional error or defect in the impugned findings of the learned Appellate Court. Resultantly , this revision petition being bereft of merits is dismissed.