SULTAN TANVIR AHMAD, J. Through the present Civil Revision, filed under section 115 of the Code of Civil Procedure, 1908 (the 'Code'), revision-petitioner has assailed the judgment dated 28.01.2015 whereby, the learned appellate Court has upheld order dated 28.11.2013 passed by the learned trial Court, refusing to set-aside the ex-parte judgment and decree dated 07.12.2009 passed against the revision-petitioner.
2. Facts, necessary for disposal of present revision petition, are that respondent filed suit dated 03.04.2006 for specific performance of agreement dated 30.03.2005 and possession of the agricultural land measuring 01 kanal and 05 sarsai, falling in khewat No. 5 khatoni No.5, Tehsil and District Vehari, as further described in the heading of the plaint (the 'suit property'). Per contents of the suit, the revision-petitioner agreed to sell the suit property to the respondent vide agreement dated 30.03.2005 (the 'agreement'), in presence of witnesses, for consideration of Rs.2,50,000/-, out of which Rs.1,60,000/- was paid as earnest money at the time of agreement and remaining amount was settled to be paid at the time of transfer of the suit property, however, the revision- petitioner deviated from his obligation to transfer the suit property in favour of the respondent and receiving the balance amount of consideration as well as refused to hand over the possession of suit property. The suit was contested by the revision-petitioner by filing written statement.
3. Out of the divergent pleadings the learned trial Court framed six issues. The respondent produced his oral as well as documentary evidence. The respondent appeared as PW.1 and produced Bashir Ahmed and Muhammad Arif, witnesses of the agreement, as PW.2 and PW.3. A copy of challan for payment of remaining sale consideration in furtherance of order dated 04.04.2006 was also brought on record to show willingness and capacity to perform the agreement. The defendant was proceeded ex-parte on 04.12.2009. The learned trial Court gave issue-wise findings and allowed the suit- vide ex-parte judgment and decree dated 07.12.2009.
4. On 21.09.2010 an application (the 'Application') was filed by the revision-petitioner for setting aside the order for ex-parte proceeding dated 04.12.2009 and ex-parte judgment and decree dated 07.12.2009, which was contested by the respondent by filing reply and counter-affidavit. The learned trial Court, framed the following issues, out of the conflicting stances adopted by the two sides: -
1. Whether ex-parte proceedings dated 04.12.2009 and ex-parte judgment and decree dated 07.12.2009 are liable to be set aside on the grounds mentioned in the application? OPA
2. Whether petitioner has no cause of action to file the instant petition? OPR
3. Whether the petitioner is estopped by his words and conduct to file the instant petition? OPR
4. Whether petition is not maintainable in its present form? OPR
5. Whether the petition is false, frivolous and liable to be dismissed? OPR
6. Order.
5. After framing of issues, both the parties were directed to produce their evidence. The revision- petitioner appeared as AW.1 and he produced Muhammad Khan as AW.2. As documentary evidence, copies of ex-parte order, ex-parte judgment and decree were brought on record as Exh.
A-1, Exh. A-2 and Exh. A-3. In rebuttal, Muhammad Ashiq / respondent appeared as RW. 1 and produced complete order-sheet as Exh. R-1, certified copy of judgment and decree as Exh. R-2, copy of application for setting aside ex-parte proceeding as Exh. R-3, mutation No. 545 as Exh. R-4 and copy of jamabandi as Exh. R-5.
6. The learned trial Court gave issue-wise finding and after examining all aspects of the matter dismissed the Application of the petitioner vide order dated 28.11.2013. The said order was assailed through Civil Appeal No.11/13 of 2014, on 08.01.2014 before the learned appellate Court, which was dismissed' vide judgment dated 28.01.2015. Aggrieved from the same, the present civil revision has been filed.
7. Haji Muhammad Tariq Aziz Khokhar, learned counsel for the revision-petitioner has submitted that the learned two Courts below have committed legal error while applying Article 164 of the Limitation Act, 1908 (the 'Limitation Act') and ignored the law settled by the Honourable Supreme Court of Pakistan in case titled "Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v.
Industrial Development Bank of Pakistan" (PLD 1981 SC 21); that under the facts and circumstances of case, Article 181 of the Limitation Act was applicable and three (03) years period was available to the revision-petitioner for filing the Application. In this regard, learned counsel has further relied on cases titled "Mst. Sardar Begum and others v. Mst. Chiragh Bibi" (1989 CLC 825), "Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others" (2017 CLC 1426) and "Mst.
Tameezan and others v. Muhammad Sharif" (2021 CLC 25). Without prejudice to above arguments, it is also contented by the learned counsel for the revision-petitioner that the ex-pane judgment and decree dated 28.01.2015 suffers from patent illegalities; that the judgment and decree dated 07.12.2009 is not based on record and learned trial Court was obliged under the law to give its findings by applying the correct law with reference to the facts of case as well as the evidence available on record. Learned counsel of the revision-petitioner, while relying upon case titled "Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through LRs and others"
(2013 SCMR 1300), has further submitted that since the suit was based on unwritten agreement, therefore, the decree based on weak evidence, is void and no limitation can run against such void decree.
8. Conversely, Mian Nasir Mehmood, learned counsel for the respondent has submitted that grounds taken in the Application are highly implausible, thus, learned two Courts below have rightly reached to their conclusion; that the Application lacks sufficient cause; 'that the revision-petitioner failed to prove his stance or establish any reason for setting aside order of ex-parte proceeding in terms of Order IX, Rule 09 of the Code or ex-parte judgment and decree in terms of Order IX Rule 13 of the Code. It is contended that the revision-petitioner remained fully aware of the proceeding throughout and miserably failed to show that he was prevented by any sufficient cause when the proceedings were conducted and finally judgment and decree was passed against him. It is further contended that Article 164 of the Limitation Act is squarely applicable to the facts of the case and maximum period for filing the Application is 30 days from the date of decree.
9. I have heard the arguments of the learned counsel for both" the parties and perused the documents available on the file.
10. To suitably address the arguments of the learned counsel of the parties, as to the limitation applicable to the Application, it is appropriate to have a look at Article 164 and Article 181 of the first schedule to the Limitation Act, which read as follows:-
164. By a defendant, for an order to set aside a decree passed ex parte.[Thirdy days]The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree.
181. Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. [Three years]When the right to apply accrues.
11. Article 164 (above) clearly provides thirty (30) days limitation for a defendant to apply for setting aside an ex-parte decree from the date of the decree or if the summons were not duly served, from the date of knowledge of the decree. The wording of the third column of Article 164 makes it amply clear that the legislature has envisaged two independent situations; (i) Where the applicant or his counsel has entered appearance in response to the summons prior to ex-parte proceedings is ordered against him or where service of first summons are not disputed, and (ii) where summons were not served and the ex-parte decree is passed. In the first eventuality period of limitation starts from the date of decree and in the second situation, the thirty days starts from the date of knowledge of the decree. Word "summons" used in Article 164 of the Limitation Act clearly refers to first summon issued when the suit was instituted. One can be benefited from the second part in column 3, if he can show that the first summon was not served and he remained ignorant of the proceedings and the ex-parte decree, Reading of Article 181 of the Limitation Act reflects that its application is restricted to the situations where period of limitation is not provided elsewhere in the first schedule of the Limitation Act or section 48 of the Code, however, when limitation is provided in other articles of the first schedule of the Limitation Act, this residuary provision cannot be applied.
12. As far as, reliance of Mr. Tariq Aziz Khokhar on "Messrs Rehman Weaving Factory (Regd.)
Bahawalnagar" case (supra) is concerned, the Honourable Supreme Court of Pakistan in case titled "Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others" (2005 SCMR 609) has already observed that law was laid down in "Messrs Rehman Weaving Factory (Regd.)
Bahawalnagar" is for its peculiar facts and circumstances, otherwise it is settled that once the defendant is served for hearing and thereafter, he absented himself, application for setting aside ex-parte decree is required to be filed within thirty days in terms of Article 164 of the Limitation Act.
It will be beneficial to reproduce relevant extract from Honda Altas Cars (Pakistan) LTD case (supra):- "10. This Court in the case of Messrs Reitman Weaving Factory (ibid) applied residuary Article 181 of the Limitation Act in view of the peculiar facts and circumstances of the case, otherwise it is a settled principle that once a defendant is served for a date of hearing and thereafter he absents himself and ex parte decree is passed against him, under Article 164 of the Limitation Act, an application has to be filed within 30 days, and in respect of any other proceedings, which does not fall within the definition of hearing, when the summons are not served upon him and on gaining knowledge, he can move an application within 30 days for setting aside ex parte decree. In this behalf, we may observe that for the purpose of setting aside ex pane decree under Order IX, rule 30, C.P.C., there is no distinction for the Court, whether ex pane decree has been passed under Order IX, rule 6(i) or under Order XVII, rule 4. C.P.C. This argument become more convincing in view of the fact that Legislature, being fully aware of the fact that for setting aside the order of dismissal of suit and ex pane order, a period of 30 days has been prescribed under Articles 163 and 164 of the Limitation Act which extends the provision of section 5 of the Limitation Act vide Ordinance X of 1980, in order to cover the situation where on account of sufficient cause, delay in filing of application is sought to be condoned otherwise, there was no necessity to extent the provisions of section 5 of the Limitation Act."
(Emphasis supplied)
13. In case titled "Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandiar Khan" (2008 SCMR 287), the Honourable Supreme Court of Pakistan observed that since the pendency of suit is in knowledge of defender of the suit and he was declared ex-parte hence, Article 164 of Limitation Act would be applicable in the case whereby, period to move application is thirty (30) days. The relevant part of the judgment is as under:- "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 pane decree was passed on 23-12-2003. It was in the execution proceedings application for setting aside ex pane 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 pane 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."
14. The revision-petitioner was duly served with the summons to which he responded and he has not just joined the proceedings before the learned trial Court but also filed his written statement; he continued to participate in the trial until 04.12.2009, when he failed to attend the hearing and as consequence of which order of ex-parte proceeding was passed. Thereafter, the case was fixed for hearings on 05.12.2009 and then on 07.12.2009. The learned trial Court proceeded to pass ex parte judgment and decree, after recording the evidence of the respondent.
15. After about nine (9) months of passing the ex-parte judgment and decree the Application was filed. Perusal of grounds taken in the Application fleas that the revision-petitioner has attempted to make out the case that on 10.11.2009, when the case was fixed for 04.12.2009, he remained under the impression that next date of hearing was 04.01.2010 instead of 04.12.2009. The ground disclosed in the Application is as follows: - As per the above stance adopted in the Application, the revision-petitioner remained under the impression that his case was fixed on 04.01.2010 when he could not have traced the file. It is observed that there is no plausible explanation in the Application as to the course of action that the revision-petitioner adopted upon failure to trace the file on 04.01.2010. There is inordinate delay of eight (8) months, in filing the Application, from permissible period of limitation.
16. When the petitioner was cross-examined as to this indolence, he deposed as follows: - I am of the view that no serious litigant, upon learning that his case-file could not be traced or when he receives no response from his counsel, would not sit over his rights, if genuine, for a period spreading over eight (08) months. The stance adopted by the revision-petitioner is not merely implausible but at the same time, he remained guilty of indolence, whereas, law and equity favour those who are vigilant. Learned counsel of the revision-petitioner instead of explaining the above said delay has opted to argue that valuable rights of revision-petitioners are involved in the lis.
Conceivably, learned counsel has discounted that as a matter of fact the valuable rights have accrued in favour of the respondent by efflux of time, hence revision-petitioner was required to explain each and every day of delay in satisfactory manners. I am fortified in my view by the laws settled by the Honourable Supreme Court of Pakistan in case titled "Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen" (2006 SCMR 631). The relevant part of the said judgment is as follows: - "7. It is a settled principle of law that valuable right accrues to the other side by lapse of time and each day's delay has to be satisfactorily explained. It was argued that valuable rights of the petitioner is involved but this does not furnish a proper ground for condonation of delay in civil matters. Plea for condonation of delay on the ground of poverty is also not valid ground as law laid down by this Court in Hakim Abdul Rehman's case 1970 SCMR 582. It is also a settled maxim that law of equity favours those who are vigilant. The conduct of the petitioner clearly shows that he was not serious to pursue Ike matter before the Courts below."
(Underlining is added)
17. Coming to the last arguments of learned counsel for the revision-petitioner that ex-parte decree dated 07.12.2009 is void and / or it suffers from patent illegality as the same is based on unwritten agreement, suffice to observe that although unwritten agreement is required to be proved through credible evidence but such agreements are duly permissible in the law.
18. The petitioner has failed to make out any case requiring interference in the concurrent findings of the learned Courts below. Consequently, the present civil revision is dismissed. No order as to costs.