MUHAMMAD NASIR MAHFOOZ, J.- Instant Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, wherein the petitioner has prayed for the following relief:- " It is, therefore, most humbly and respectfully prayed that on acceptance of this writ petition the impugned order, judgment and decree dated 19.6.2012 passed by Additional District Judge, Takht-e Nasrati (Respondent No.3) may kindly be set aside and the order, judgment and decree dated 12.3.2012 passed by learned Civil Judge-I, T akht-e-Nasrati (Respondent No.4) may kindly be restored. . "
2. Brief facts are that respondent No.1 instituted a suit for specific performance and in alternate recovery of Rs.1,39,000/- regarding suit property, the detail of which is mentioned in the heading of the plaint. It is alleged that the suit property was sold to respondent No.1 and possession was also delivered but later on petitioner/defendant No.1 sold the same property to respondent No.2, hence he instituted the instant suit. He further alleged in the plaint that after purchasing the suit house plaintiff/respondent left the village and went to Khesri Shahida Banda but taking undue advantage of his absence from the village took forcible possession of the suit house and then sold the same to respondent No.2. Arbitrators decided the issue between the parties but respondent No.2 refused to accept the decision of arbitrators. The respondent/plaintiff also prayed for recovery of Rs. 1,39,000/- in case relief regarding specific performance of contract is not decreed.
3. Respondents/defendants were summo ned. They contested the suit and denied the allegations of petitioner . The petitioner was proceeded ex-parte on 15.02.2006 and thereafter respondent No.2 contested the suit but he also absented himself and thereafter recording ex-parte evidence learned Civil judge granted ex-parte decree of Rs.1,39,000/- while the prayer for specific performance had been withdrawn by respondent/plaintif f on 09.9.2009.
4. Petitioner filed an application under section 12(2) CPC, challenging the ex-parte decree which was contested by the respondents and after framing issues parties were allowed to produce evidence but the same was also dismissed on 12.03.2011. The order was challenged in Civil Revision No.08 of 2011 before learned Additional District Judge, Karak but it also met the same fate and was dismissed on 25.5.2011. Writ Petition No.2046 of 2011 was filed in this Court but the same was disposed of on 26.10.2011 as learned counsel for the petitioner at that time requested to seek remedy by filing an application for setting aside the ex-parte decree under Order-9 Rule-13 CPC. Petitioner then submitted an application under Order-9 Rule-13 CPC on 31.10.2011 along with an application for condonation of delay. After submitting reply by respondent/plaintiff, it was allowed by learned trial Court on 12.5.2012. Revision Petition against this order before the learned Additional District Judge, Karak was allowed on 19.6.2012 and the application under Order-9 Rule-13 CPC was dismissed, hence the instant Writ Petition.
5. I have heard learned counsel for the petitioner while the respondents have been proceeded ex-parte.
6. Perusal of the order sheets reveals that the petitioner was summoned on several dates, firstly through personal service and then through substituted service on the same address as mentioned in the heading of this petition and was proceeded ex-parte on 15.02.2006. Lateron ex parte evidence was recorded and then the ex- parte decree was passed.
7. It requires to be mentioned that limitation period for filing an application under Order-9 Rule-13 CPC when the ex-parte decree is passed on the date of hearing is one month under Article 164 of the Limitation Act and in other cases limitation period is three years as provided under Article 181. The time from which the period began to run for setting aside a decree passed ex-parte under Article 164 is, the date of the decree or, where the summon was not duly served when the applicant has knowledge of the decree. The date of knowledge in the instant case would be presumed from the date of 21.11.2009 though he was proceeded ex-parte on 15.02.2006 after substituted service on the same address as mentioned in the heading of the instant petition but for a moment if the contentions of petitioner is accepted that he had no knowledge of the ex parte decree then the application under section 12(2) CPC filed by him for setting aside the ex parte decree on 18.02.2010 could be considered as the actual date of knowledge, but he preferred a wrong remedy and thereafter did not press the same on 26.10.2011 when he did not press his Writ Petition No.300 of 2011 and preferred to file application under Order- 9 Rule-13 CPC, which was subsequently filed on 31.10.2011. By availing a wrong remedy the time spent therein would be computed for the purpose of limitation for filing application under Order-9 Rule-13 CPC.
8. Even from the contents of the application under Order-9 Rule-13 CPC petitioner has not made out any case to prove that there are plausible reasons and sufficient cause for his absence but no such details are mentioned in the said application. Similar is the case of application for condonation of delay accompanying the said application.
In case the ex-parte evidence was not recorded on his application under section 12(2) CPC, the petitioner could have been allowed to produce pro and contra evidence in support of his application but that remedy has been exhausted by him, and if again he is allowed to produce evidence on the instant application it will be the same evidence that was already produced and attained finality through order of this Court on 26.10.2011. Petitioner has failed to make out a case for setting aside the ex-parte decree neither on the basis of law nor based on the equities, therefore, he could not be allowed to resist the ex parte decree except through implementation of the said order .
9. In view of the above, the instant W rit Petition is dismissed with no order as to cost.