MUHAMMAD AMEER BHATTI, J.---This revision petition calls-in-question the legality and validity of judgment dated 13.02.2017 passed by the learned Additional District Judge, Faisalabad as well as the order dated 10.11.2014 of the learned trial Court, whereby petitioner's application filed under Order IX, rule 13, C.P.C. for setting aside the ex parte judgment and decree dated 12.04.2012, stood concurrently dismissed; hence, this revision petition.
2. Facts giving rise to this petition briefly stated are that suit for recovery of US $ 99,116.19 was filed by respondent No.1 against the petitioner and respondents Nos.2 and 3 allegedly recoverable from all the defendants severally and collectively. Respondents Nos.2 and 3 did not participate in proceedings of suit despite issuance of all modes of service, hence they were proceeded ex pane, however, defendant-petitioner contested the suit by way of filing written statement; the issues were framed in the year 2007. Since framing of issues plaintiff-respondent failed to produce his evidence despite enjoying numerous opportunities including bearing of cost of Rs.1000/-.
However, on 24.05.2010 when the case was fixed for recording of evidence of plaintiff-respondent notwithstanding the fact that evidence of the plaintiff-respondent was not available rather filed an application under Article 76 of Qanun-e-Shahadat Order, 1984 for seeking permission to tender, secondary evidence on the ground that original documents had lost during shifting and renovation of office and another original copy was in the custody of defendants Nos.2 and 3, who failed to join proceedings, therefore, mandatory notice was not required to be issued to them. Learned trial Court passed the following order:- "No one has turned up from the defendant No.1 . He is proceeded against ex parte. For ex parte evidence, of the plaintiff, the case is adjourned for 12.06.2010. Counsel for the plaintiff has filed an application under Article 76 of Qanun-e-Shahadat Order, 1984. For arguments, the case is adjourned for supra cited date."
On 10.07.2010 said application was allowed holding that issuance of notice would be a futile exercise. Subsequently evidence was led and suit was ex parte decreed against all the defendants.
Defendant-petitioner after acquiring knowledge of ex parte decree filed an application for its setting-aside alleging that he remained unaware about the ex parte proceedings and decree as the Advocate engaged by the principal counsel to look after the ordinary affairs of the proceedings did not attend the proceedings nor he informed the ex parte proceedings and decree. This application was contested and dismissed by the learned trial Court being barred by limitation and appeal whereof also met with the same fate, hence, this revision petition impugning both the judgments of the two Courts below dated 10.11.2014 and 13.02.2017, respectively.
3. The learned counsel for the petitioner propounds the proposition that the learned trial Court erred in law while passing the impugned ex parte order dated 24.05.2010 inasmuch as 24.05.2010 was not the date of hearing as the same was fixed for recording of evidence of the plaintiff on his own request, therefore, the action taken in terms of Order XVII, rule 2, C.P.C. was not justified and the learned trial Court should have proceeded under Order XVII, rule 3, C.P.C. In support of this submission, learned counsel places reliance on Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678), Abdul Sattar v. Muhammad Akbar Shah (PLD 1990 Supreme Court 285), Hashim Khan v. National Bank of Pakistan (1992 SCMR 707), Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949), Muhammad Zubair Chaudhry v. The Muslim Commercial Bank Limited (1983 CLC 2337), Board of Intermediate and Secondary Education, Sargodha v. Muhammad Akram (1993 CLC 926) and Messrs Orient Occident (Pvt.) Ltd. through Director and others v. Messrs UPAZA Commercial Enterprises through Proprietor and others (2007 MLD 1374 Lahore).
Further contended that both the learned Courts below while dismissing the application under Order IX, rule 13, C.P.C. misconstrued and misapplied Article 164 of Limitation Act, 1908. In this regard, he referred Muhammad Saleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 Supreme Court 97), Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21), Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others (2017 CLC 1426), Sardar Muhammad v. Addl. District Judge and others (1989 MLD 4879), Malik Muhammad Nazir v. Mian Abdul Rahim and another (PLD 1968 Lahore 792) and Muzaffar Ali and others v. Dr. Zafar Ullah Malik (2015 YLR 1332).
It is further added that on the fateful date i.e. 24.05.2010 when the learned trial Court had taken cognizance upon application under Article 76 of Qaunun-e-Shahadat Order, 1984, filed by the plaintiff-respondent, there was no legal justification for it to attract the provisions of Order IX, C.P.C. against the petitioner. It is further contended that the circumstances coupled with glaring material irregularities and illegalities warrant exercise of revisional jurisdiction in view of case law reported in Manager, Jammu and Kashmir, State Property in Pakistan v. Khada Yar and another (PLD 1975 Supreme Court 678).
Lastly, by referring the case law cited in Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 Supreme Court 483) learned counsel emphasized that the case law involving interpretation of question of law or enunciating principle of law shall be binding on this Court.
4. On the other hand, learned counsel for the respondent-plaintiff while supporting the decisions rendered by both the learned Courts below maintained that the application under Order IX, rule 13, C.P.C. from its inception was hopelessly time-barred inasmuch as the petitioner deliberately kept himself absented despite joining the proceedings and slept over his rights for a period of four years from date of ex parte proceedings and thereafter woke-up after two years when the suit was decreed ex parte, therefore, Article 164 of the Limitation Act, 1908, was fully applicable giving 30- days period for filing said application. In support of this argument, he relied upon Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609), Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), Secretary Education Department, Government of N. W.F. P., Peshawar and others v. Asfandiar Khan (2008 SCMR 287), Messrs Lahore Art Press through its Proprietor, Muhammad Mohsin and another v. National Bank, Anarkali Branch, Lahore (PLD 1990 Lahore 300) and Province of Punjab and another v. Muhammad Anwar (1998 CLC 1212 Lahore).
Further argued that mere negligence of learned counsel in not delivering the information of ex parte proceedings and decree in time would hardly be constituted sufficient cause, hence he could not get any benefit in this regard. Refers Muhammad Shafi v. Mst. Razia Ghafoor and 3 others (1989 SCMR 479), Master Abdul Basit and another v. Dr. Saeeda Anwar and another through father (2013 YLR 375), M.A. Latif Faruqui v. National Bank of Pakistan (PLD 1981 Karachi 645), Mst. Tanvir Amna v.
Bohauddin Sarhandi (2001 YLR 2782), and Kohinoor Industries Limited Project Kohinoor Textile Mills Ltd. through Chief Executive v. Sargodha Spinning Mills limited through Chief Executive and 2 others (2005 CLC 1781 Lahore).
It is next contended that 24.05.2010 was fixed for recording evidence of the plaintiff, which has been considered as date of hearing in Qaim Ali Khan v. Muhammad Siddique (1987 SCMR 733), Sher Wali Khan v. Mst. Khosh Begum (2011 CLC 421) and Manager, Jammu and Kashmir State Property In Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678).
Finally, it is argued that concurrent findings of fact recorded by the two Courts below cannot be interfered especially when the same are result of exercise of jurisdiction vested in said Courts by virtue of law. Learned counsel places reliance on Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Gulzar Khan v. Isa Khan by his Legal Heirs and others (1993 SCMR 2099), Shah Gul and others v. Mst. Shamim Akhtar and others (1990 SCMR 110) and Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 Supreme Court 88).
5. After hearing the learned counsel and considering the dictums laid down in the authorities cited and consulting the record, it is noticed that notwithstanding the fact that issues were framed on 30.03.2007 but till 24.05.2010 the plaintiff/respondent failed to produce evidence despite enjoying numerous adjournments including bearing cost of Rs.1,000/-. Even order sheet does not reflect presence of the witnesses on any date. However, on the crucial date i.e. 24.05.2010 when the case was fixed for plaintiff's evidence he did not produce the evidence and instead filed an application under Article 76 of the Qanun-e-Shahadat Order, 1984 for seeking permission to produce secondary evidence, in pursuance whereof the case was set down for arguments on the said application whereas on account of absence of the defendant-petitioner he was proceeded ex pane and recording of ex parte evidence of the plaintiff-respondent was also ordered. On next date of hearing viz 12.06.2010, despite presence of the parties reflecting from the order although their counsels were observing strike, the learned trial Court did not deliver copy of the application to the defendant for obtaining his reply which was essential for deciding any application and case was postponed in terms of previous order for 10.07.2010. Although on 10.07.2010 defendant was also reported to be absent but care has not been taken by the learned trial Court to observe the procedure provided for deciding any miscellaneous application. However, on the said date, by holding that none was present on behalf of the defendant-petitioner in oblivion of the fact that he had already been proceeded against ex parte on 24.05.2010 to oppose it, an application for secondary evidence was allowed vide separate order of even date merely on the ground that notice to produce documents as contemplated by Article 77 of Order ibid was not required because the original documents which were in possession of defendant No.2 presumed to be out of reach of Court and the case was adjourned for recording of evidence of plaintiff-respondent.
While accepting the said application, the learned trial Court overlooked the reasons mentioned in the application where it was specifically alleged that one of the set of original documents out of triplicate sent to the plaintiff-respondent No.1 was in his possession but lost from his custody during shifting and renovation of office. In such circumstances the requirement of law was that before permitting to lead the secondary evidence the fact regarding loss of original documents was required to be proved and by not doing the same, even if the secondary evidence was produced, it becomes valueless vitiating all the proceedings built on such secondary evidence.
Record further reveals that case was fixed for evidence of the plaintiff-respondent on 06.07.2011 and on the said date the permission to adduce the evidence to the plaintiff was granted subject to payment of cost of Rs.1500/-. Since permission was conditional i.e. payment of cost of Rs.1500/- and record is silent regarding payment of this cost.
6. Above all, one thing is discernible from the facts detailed in preceding paragraph that non- appearance of the petitioner-defendant on 24.05.2010 was not aimed to avoid the proceedings of learned trial Court inasmuch as the learned counsel representing the petitioner-defendant remained present on all dates of hearing prior to 24.05.2010 and even on one date after said date.
In this view of the matter, the very purpose to attract the provisions of Order IX rule 13, C.P.C. stood defeated, as held in Col. (Retd.) Mansoor Akbar v. Fazal-e-Rab Pirzada and others (2012 SCMR 540), as under:- "The purpose for passing ex parte decree is to penalize a party which deliberately avoids appearance either in person or through his counsel, with the ulterior object to defeat or delay and or frustrate the litigation or is grossly negligent or fails to appear without sufficient cause."
On the other hand it was the plaintiff-respondent who failed to produce the evidence even on the said date and instead of exercising the power to penalize him for non-production of evidence the absence of the defendant-petitioner was noted by the trial Court and he was proceeded ex parte whereas his act was not to frustrate the proceedings of the case. I am clear in my mind that 'sufficient cause' to strike down the ex parte order is established/proved but at the same time, for condonation of delay in filing such application is to be seen with due care and caution. The honourable Supreme Court in the case of Hazratullah and others v. Rahim Gull and others (PLD 2014 Supreme Court 380) held that there is difference between the decree either passed on merits or ex parte both are valid having legal effects inasmuch as both have the same effect, relevant portion whereof is reproduced here inbelow : - "it is held that an ex parte decree is valid, having same legal effects and as good as a contested decree, with the exception that the modes and mechanism for the setting aside such decree may be more; in any case, after having attained the knowledge of that decree, the appellants never assailed it (decree dated 13.1.1940) through any direct proceedings, i.e. either under Order IX, Rule 13, C.P.C. or any other remedy available to them under the law, thus for all intents and purposes, the said judgment and decree had attained finality and would be binding upon the appellants."
7. Although above-noted discrepancies have the persuasive value but conduct of the petitioner to get-up from deep slumber spreading over two years from the date of ex parte decree and four years from ex parte proceedings with the feeble plea of non-providing information by a local Advocate, does not permit this Court to come forward for rescue of the petitioner because on account of delay in filing an application for setting-aside ex pane proceedings and decree, a valuable right has accrued in favour of the respondent-plaintiff as significant role of limitation in settling the dispute of the parties cannot be ignored. In Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212) the honourable Supreme Court has enunciated the effect of limitation in the following manner:- "This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law. The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy has been examined by the courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is "THE LAW" which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e., limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of section 3 of the Limitation Act, it is obligatory upon the court to dismiss a cause /is which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the "LAW" itself. In the above context, a judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) has thrown considerable light on the subject and has provided guidance, in the following words:-- "We may add that public interest require that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affairs, Statutes of limitation and prescriptions are, thus, statues of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence."
In the case of Messrs Rehman Weaving Factory (PLD 1981 SC 21), cited by learned counsel for the petitioner, the defendants asserted that they were not served but their plea did not find favour as the trial Court holding the applications being time barred and the High Court while accepting their appeals observed that the service upon an unknown person or the service by affixation without obtaining a refusal from a proper person or without resorting to the personal service was made not only upon misrepresentation of fact but also misapplication of proper procedure and in such circumstances Article 164 was held not applicable rather the same was held to be governed by residuary Article 181 giving period of limitation as three years from accrual of right to apply.
In Muhammad Swaleh and another (PLD 1964 Supreme Court 97) although the defendants after joining the proceedings absented themselves but on the crucial date when nobody appeared for the defendants, the plaintiffs got examined their witness and closed their evidence which led to decree of their suit ex parte. But in the instant case, plaintiff-respondent's evidence was not present when the ex parte order was passed.
8. On the contrary, qua identical facts, case-law reported in Secretary Education Department, Government of N.W.F.P. Peshawar and others v. Asfandiar Khan (2008 SCMR 287) is cited wherein it was held: "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 parte 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."
The petitioner-defendant must have applied to set aside the ex parte decree within thirty days of the date of passage of ex pane order or at the most from ex parte decree.
The present case, the petitioner after joining the proceedings absented himself for a long period of almost more than four years. Contention of the learned counsel for the petitioner that pronouncement of the ex parte judgment and decree came to petitioner's knowledge on 19.04.2014 when a Court bailiff approached him at his office, has no force for the reason that he at the relevant time was bound by Court proceedings and even if the petitioner was not informed by his Counsel obviously he was under obligation to pursue the lis lodged against him, which was very well within his knowledge as it is well recognized principle that law helps vigilant and not the indolent. It is not the case of the petitioner that he ever contacted his Counsel so as to know stage and progress of the case or he ever made correspondence-conversation with the lawyer who passed wrong information/advice. In such eventuality, when the defence plea taken by him is found to be neither on legal footing nor appealing to mind rather feeble, he has to explain each and every day regarding his absence beyond thirty days in a justifiable manner. In none of the case-law cited on behalf of the petitioner in support of question of limitation, the defendant(s) therein never absented himself during course of proceedings and those cases practically are of non-service of summons on the defendant(s). In this scenario, the petitioner is not entitled to count limitation from the date when he acquired the knowledge of the ex parte decree.
9. For what has been discussed above, this Court is not persuaded to exercise its revisional jurisdiction provided under section 115, C.P.C. hence, this revision petition fails, thus dismissed. No order as to costs.