MUHAMMAD IJAZ KHAN, J.- Through the instant revision petition, petitioner has challenged the order and judgment of learned Additional District Judge- Haripur at Ghazi, dated 23.02.2023 whereby he dismissed the appeal of the present petitioner and maintained the order and judgment of learned Civil Judge-I, Ghazi, dated 05.09.2022 who vide the same had dismissed a civil miscellaneous application of petitioner for setting aside ex-parte decree dated 27.09.2017 and order of the executing court dated 29.07.2019.
2. Precisely the facts of the case are that the respondent No.1 Mst. Yasmeen Akhtar brought a suit on 08.03.2013 for declaration to the effect that she is owner of property measuring 03-kanal & 2- 1/2-marla in suit khasra No.207 total measuring 16-kanal & 07-marla situated at revenue estate Aamgah Tehsil Ghazi District Haripur. Respondent/plaintiff has further pleaded in her plaint that there is house over the suit property in which she alongwith her kids are residing which was given to her by her deceased husband namely Muhammad Iqbal in lieu of her dower. She has also challenged a mutation No.832 dated 02.04.2011, which was allegedly executed by her husband in favour of defendant No.1, which mutation was termed as fake, fictitious and thus ineffective upon her right.
3. In the aforesaid suit, the present petitioner/ being defendant No.1 was summoned, who attended the court personally. The order sheet of the learned trial court dated 02.04.2013 would show that he was personally present before the court and as a token of proof his signature was also obtained on the margin of the said order sheet, but subsequently, he neither attended the court nor submitted his written statement, therefore, he was proceeded ex-parte vide order dated 04.02.2016, thereafter, ex-parte evidence was recorded and as such ex-parte judgment and decree was passed vide order dated 27.09.2017.
4. It was after one and half month when the present petitioner submitted an application under Order IX rule 13 CPC for setting aside ex-parte decree, however, the same was dismissed vide one of the impugned order dated 05.09.2022. This order was then challenged by the petitioner before learned Additional District Judge Haripur at Ghazi through an appeal, however, his appeal was also dismissed vide second impugned order dated 23.02.2023, now the petitioner has challenged the aforesaid order and judgment through instant civil revision petition.
5. Arguments of learned counsel for the petitioner was heard in considerable detail and the record perused with his able assistance.
6. The appended record with this petition would show that initially the present petitioner was placed ex-parte vide order of the trial court dated 13.04.2015, however, subsequently, the aforesaid ex-parte proceedings were set-aside and the present petitioner join the proceedings, however, he again absented himself, therefore, again he was proceeded ex-parte vide order dated 04.02.2016, which shows that petitioner was not interested to pursue his case and the rights accrued to the respondent/plaintiff under an ex-parte decree could not be taken away by merely filing of an application for setting aside the same. In the case titled Gul Zaman Versus Shah Nawaz and another reported as 2014 CLC 1674 it was held that the petitioner joined the proceedings, contested the suit by filing written statement but again absented himself from the Court, resulting into ex-parte decree against him, once again. He moved another application for setting aside ex parte decree, which was concurrently dismissed by the Courts below and rightly did so, as the conduct of the petitioner qua mischief of limitation warrants so, in accordance with law. The application is covered under Article 164 and not Article 181 of the Limitation Act. It is barred by time as he has moved the application on 3-5-2012 to set aside the order dated 8-3-2012. No plausible reasons or sufficient cause shown in the application, except the omnibus insufficient reason.
Needless to mention that delay of each and every day has to be explained in accordance with law, but nothing in this regard finds mention in the application. His conduct also disentitles him to lenient view as he did not turn up on the first occasion despite service and then he absented himself again and did not bother to honour the Court proceedings and as such not entitled for any relief and has been rightly dealt with by the Courts below strictly in accordance with law, warranting no interference in concurrent findings arrived at in the impugned judgments.
7. The record further indicates that before filing of the present application under Order IX rule 13 CPC the present petitioner had filed an application under section 12 (2) CPC for setting aside the ex-parte judgment and decree, however, the said application was dismissed vide order dated 19.02.2018, which order has not been challenged by the petitioner before a higher forum and thus it has since been attained finality.
8. It is astonishing to note that after the dismissal of aforesaid petition filed under section 12 (2)
CPC, he waited and waited for four long years when he again has filed the instant application under Order IX rule 13 CPC on 19.11.2021 whereby he has prayed for the same relief to set aside the ex-parte judgment and decree, therefore, on the face of the record for the same grievance he has resorted to two different remedies, which are not permissible under the law, therefore, the two courts below have rightly dismissed the applications filed by the present petitioner.
9. It is also relevant to mention here that when ex-parte judgment and decree is passed against a person then an aggrieved person thereof has four remedies, which are as under: - i). To file an application under Order IX rule 13 CPC. it). To file an appeal before the higher forum under section 96 CPC. iii). To file a review petition under section 114 CPC. iv). To file an application under section 12 (2) CPC. however, an aggrieved person can avail any one of the aforesaid remedies and when once he opts for any remedy out of them then he cannot be allowed to avail any other remedy. As in the case of petitioner he has already availed a remedy by filing 12 (2) CPC application which was dismissed, therefore, his subsequent application filed under Order IX rule 13 CPC is not maintainable. In this regard, wisdom can be drawn from a case titled Malal Din Versus Maizullah Khan and 3 others, reported as 2019 CLC 517 Peshawar it was held that limitation period for filing an application under Order IX Rule 13, C.P.C. 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), C.P.C. 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 IX Rule 13, C.P.C., 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 IX Rule 13, C.P.C. Even from the contents of the application under Order IX Rule 13, C.P.C. 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), C.P.C., 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. Similarly, in a case titled Abdur Rahim Sath Versus Ghulaln Sarwar and 11 others reported in 2009 CLC 1039 it was held that Order IX, rule 7, C.P.C. provides the remedy against ex parte proceedings as the defendant who has been proceeded against ex parte, no doubt remains a party to the proceedings, as he cannot be relegated to the position, he would have occupied, had he appeared. Therefore, in view of his position, on cause being shown, ex parte proceedings can be set aside, on nominal costs.
10. It is also relevant to mention here that since petitioner had participated in the proceedings as he has personally appeared before the learned trial court and he has also engaged a counsel for himself, therefore, he was well within the knowledge of the proceedings pending against him, therefore, in such eventuality it would be Article 164 of the Limitation Act which would governed the question of limitation of filing an application under Order IX rule 13 CPC which provide, for 30 days period, however, as stated herein above that the petitioner has filed the instant application under Order IX rule 13 CPC after the lapse of more than four years, therefore, on the face of the record, it is a time barred application. The Honourable Apex Court in the case of Secretary Education Department, Government of NWFP, Peshawar and others Versus Asfandiar Khan, reported 2008 SCMR 287 has held that 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 22-102002 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 27-92003 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 the Apex 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.
11. It may be clarified that law of limitation being law which regulate the rights of the parties, therefore, the same has to be applied with full force more particularly when due to the afflux of time rights have accrued to the opposite party. Recently a larger Bench of the Hon'ble Apex Court in the case titled Khushi Muhammad through L.Rs. and others vs. Mst. Fazal Bibi and others reported as PLD 2016 Supreme Court 872 has held that the purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired from accrual of an actionable right. It was also held that before considering the propositions above, it is expedient to mention certain salient features which have been settled over a period of time by the superior Courts for the purposes of interpretation of the law of limitation. These are:- i. The law of limitation is a statute of repose, designed to quieten title and to bar stale and water- logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties.
Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly; ii. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties; iii. It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision; iv. There is absolutely no room for the exercise of any imagined judicial discretion vis--vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The Court cannot claim any special inherent equity jurisdiction; A statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from Courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The Court has to only see if the defence is good in law and not if it is moral or conscientious; vi. The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right; vii. The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor; viii. Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced.
12. In view of the above discussion, the instant revision petition being bereft of any merit is hereby dismissed in limine.