Through the instant civil revision petition the petitioner, Housing Directorate Anchorage, impugns the order dated 02.02.2023 passed by the Court of the learned Additional District Judge, Islamabad-East whereby his appeal against the order dated 10.01.2022 passed by the Court of the learned Civil Judge, Islamabad was dismissed. Vide the said order dated 10.01.2022, learned Civil Judge dismissed the petitioner's application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 ("C.P.C.") to set aside ex-parte judgment and decree dated 29.01.2021.
2. The facts essential for the disposal of instant petition are that on 21.04.2012, respondents No.1 to 5 instituted a suit for declaration, mandatory and permanent injunction wherein they inter alia assailed the jamabandis in the revenue record since the year 1908 and 1956- 1957 for khewat No.117/188 khasra Nos.218 (old) / 299 (new), 301 (old) / 47 (new), 697 (old) /1292 (new), 767 (old) /1125 (new), 739 (old) /1154 (new), 744 (old) /1096 (new), 763 (old) /1121 (new) and 765 (old) /1123
(new) situated in Mouza Gagri, Islamabad on the ground that they were not in accord with (i) mutation No.39 sanctioned on 08.06.1908 for the land measuring 65 kanals and 10 marlas and; (ii) mutation No.393 sanctioned on 27.02.1904 for the land measuring 79 kanals and 9 marlas. In mutation No.39, the respondents / plaintiffs claimed inheritance rights in the land owned by Fathu through their predecessor-in-interest, Muhammad Sher, in the quantum of the latter's own share as well as the share of his brother Bakhsh who died issueless. In mutation No.393, the respondents / plaintiffs claimed 4th share of the inheritance from Phali which according to them came to be 44 kanals and 8 marlas.
3. Respondents No.1 to 5's said suit was decreed ex-parte vide judgment and decree dated 13.06.2014 passed by the learned Civil Judge, Islamabad-East. The petitioner filed an application under Section 12(2) C.P.C. for setting aside the said ex-parte judgment and decree dated 13.06.2014 on the ground that the petitioner is the owner of the suit land after having purchased the same from different owners in the year 2005. The petitioner's said application under Section 12(2) C.P.C. was dismissed vide order dated 30.05.2016 passed by the learned Civil Judge, Islamabad. The petitioner assailed the said order dated 30.05.2016 in a civil revision petition before the learned District Judge, Islamabad which was allowed vide order dated 06.10.2016 with the consequence that the ex-parte judgment and decree dated 13.06.2014 was set-aside and the suit was revived and remanded to the learned trial Court for decision after impleading all the persons who were beneficiaries of the disputed mutations.
4. During the post-remand proceedings the petitioner, who was impleaded as defendant No.3, had admittedly joined the proceedings and filed an application for rejection of plaint under Order VII, Rule 11 C.P.C. which was dismissed vide order dated 06.10.2018 passed by the learned trial Court.
Eventually vide order dated 03.12.2020, the petitioner was proceeded against ex-parte and thereafter vide ex-parte judgment and decree dated 29.01.2021, the suit of respondents No.1 to 5 was decreed."
5. On 19.03.2021, the petitioner filed an application under Order IX, Rule 13 C.P.C. for setting aside the ex-parte judgment and decree dated 29.01.2021 mainly on the ground that on 04.02.2020 two cases with a similar title were fixed before the Court and the clerk of the petitioner's counsel mistakenly noted the next date as 09.03.2020 instead of 19.02.2020 and thereafter kept appearing in the wrong case having a similar title. The petitioner's said application was contested by respondents No.1 to 5.
Vide order dated 10.01.2022 passed by the learned trial Court, the petitioner's application for setting aside ex-parte judgment and decree dated 29.01.2021 was dismissed. Against the said order dated 10.01.2022, the petitioner filed an appeal which was also dismissed vide impugned appellate order dated 02.02.2023. Hence, this petition.
6. Learned counsel for the petitioner, after narrating the facts leading to filing of the instant petition, submitted that absence of the petitioner was not deliberate but due to bona fide mistake of the clerk of the petitioner's counsel; that the suit filed by respondents No.1 to 5 was titled "Muhammad Yasin etc Vs. The Collector and others" and on 04.02.2020, another suit with resembling title of "Muhammad Yasin Vs. Commanding Officer and others" was fixed; that on the said date 04.02.2020, learned Presiding Officer was on leave; that the clerk of the petitioner's counsel had gone to the learned trial Court and mistakenly noted the next date of hearing as 09.03.2020 which was in fact fixed in the other suit with resembling title while the correct next date in the suit of respondents No.1 to 5 was 19.02.2020; that thereafter the clerk of the petitioner's counsel regularly appeared in the wrong suit with resembling title, until 18.03.2021 when the appellant learnt from the Revenue Authorities that the suit of the respondents had been decreed ex-parte on 29.01.2021; that on acquiring knowledge of this fact, the petitioner filed the application under Order IX, Rule 13 C.P.C. on the very next day i.e. on 19.03.2021; that learned Courts below did not take into account that absence of the petitioner from the proceedings in the suit was due to an unintentional mistake; that the petitioner is suffering due to the mistake of his counsel; that the learned trial Court and the learned Appellate Court did not give any importance to the affidavit sworn by the clerk of the petitioner's counsel in which a case of a bona fide mistake was made out; that the ex-parte judgment and decree is even otherwise not sustainable as it relies on the and that suit of respondents No.1 to 5 was hopelessly time barred. Learned counsel for the petitioner prayed for the civil revision petition to be allowed in terms of relief sought therein.
7. I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 5 above, and need not be recapitulated.
8. The record annexed with the instant petition shows that pursuant to the revisional order dated 06.10.2016, the suit was remanded to the learned trial Court for decision afresh. In the post-remand proceedings, the petitioner was impleaded in the suit as defendant No.3. As mentioned above, the petitioner was proceeded against ex-parte vide order dated 03.12.2020. The petitioner's ground for absence is that on 04.02.2020 clerk of his counsel mistakenly noted down the next date as 09.03.2020 instead of 19.02.2020. Now, copy of order dated 19.02.2020 annexed at page 88 of the instant petition shows that on the said date clerk counsel for parties' were marked present and case was adjourned at the request from plaintiff / respondents' side. This does not cohere with the facts narrated in the petitioner's application under Order IX, Rule 13 C.P.C. The record further shows that after 19.02.2020, the case was adjourned four times while the petitioner remained absent and after nearly eight months vide order dated 03.12.2020 the petitioner was proceeded against ex- parte. Again the ex-parte proceedings remained pending for another couple of months before the ex-parte judgment and decree was passed on 29.01.2021. This cumulatively portrays that the petitioner did not make sufficient effort to diligently pursue the case and remained oblivious of the proceedings.
9. Additionally, the petitioner filed an application under Order IX, Rule 13 C.P.C. after a lapse of 30 days period of limitation prescribed under Article 164 of the Schedule to the Limitation Act, 1908.
Despite the lapse of the limitation period, the petitioner did not file an application for condonation of delay. He took the ground that the limitation for filing such an application commences from the date of his knowledge of the ex-parte judgment and decree dated 29.01.2021. In the case at hand, the petitioner was impleaded as defendant No.3 in the suit and had filed a written statement. As mentioned above, the petitioner continued to appear until 19.02.2020. Therefore for the said petitioner, the thirty-day limitation period for the filing of an application for the setting aside of the judgment and decree dated 29.01.2021 commenced from the date of the decree. This makes the petitioner's application under Order IX, Rule 13 C.P.C. dated 19.03.2021 to be time barred. In holding so, I derive guidance from the law laid down in the following cases:-
(i) In the case of Secretary Education Department, Government of N.-W.F.P., Vs. Asfandiar Khan (2008 SCMR 287), the learned trial Court had dismissed the defendant's application for the setting aside was filed fifteen months after the decree. Since the defendant had participated in the proceedings before the learned trial Court before the suit was decreed ex-parte, the defendant's contention that the limitation period for filing an application for the setting aside of an ex-parte decree was three years and not thirty days, was spurned concurrently up to the Hon'ble Supreme Court. In paragraph 5 of the said report, it was held as follows:- "5. 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."
(ii) In the case of Shahid Pervaiz Vs. Mohammad Ahmad Ameen (2006 SCMR 613), after the defendant had joined the proceedings before the trial Court and filed a written statement, an ex- parte decree was passed against him. Four months after the passing of the ex-parte decree, the defendant filed an application for the setting aside of the ex-parte judgment and decree. It was held that since the defendant had participated in the proceedings before the learned trial Court, the limitation period for filing an application for the setting aside of the ex-parte decree was thirty days starting from the date of the decree as provided in Article 164 of the Schedule to the Limitation Act, 1908. The order of the learned trial Court dismissing the defendant's time barred application for the setting aside of the ex-parte judgment and decree, was maintained up to the Hon'ble Supreme Court.
Law to the said effect has also been laid down in the cases of Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Sarhad (Pvt.) Ltd. (2005 SCMR 609), Akram Rashid Vs. Hamid Ali Khan (2015 CLC 1290), Khayal Badshah Vs. Afzal Khan (PLD 2015 Peshawar 59), Government of N.-W.F.P. through Secretary, C&W Department Vs. Khani Zaman (1995 CLC 516) and several other judgments.
10. In view of the above, I do not find any\jurisdictional error or legal infirmity in the impugned concurrent orders dated 10.01.2022 and 02.02.2023 passed by the learned Civil Judge and the learned Additional District Judge, Islamabad-East, respectively. This petition is therefore, dismissed in limine.