DR. KHURSHID IQBAL, J. The instant petition is directed against the order/judgment of the learned Civil Judge/Illaqa Qazi, Dargai, dated 24.02.2022, vide which application of the petitioner filed for setting aside the ex-parte decree dated 19.07.2021 was dismissed and that of the learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai dated 23.09.2022, whereby the revision petition filed by him was also dismissed.
2. Facts of the case shortly are that on 06.02.2020, Said Qamar, predecessor of the respondents Nos. 1 to 11, brought a suit against the present petitioner and the respondent No. 12, for possession of the disputed property fully mentioned in the head-note of the plaint. He had also prayed for a decree of specific performance to the effect that the petitioner/defendant No. 1 be directed to mutate land measuring 08 jrib in his name. In the alternative, he had prayed for the recovery of Rs.
70,60,000/- with interest as per the bank rates from 18.05.2014 till its payment.
3. As the suit moved forward, the respondent No. 2/defendant No. 2 appeared on three dates of hearing, but thereafter, he did not appear. He was, therefore, proceeded ex-parte vide order dated 04.11.2020. Nisar Ahmad, the petitioner, appeared on that date (i.e. 04.11.2020), but remained absent thereafter. On 08.12.2020, he was also proceeded ex-parte. On 22.01.2021, he submitted an application for setting aside the ex-parte proceedings initiated against him. But he did not pursue his that application before the learned trial Court, therefore, ex-parte evidence of the plaintiff was recorded. On conclusion of the trial, the learned trial Court partially decreed the suit of the plaintiff, ex pane, vide judgment and decree dated 19.07.2021.
4. The petitioner moved an application on 26.11.2021, for setting aside the aforesaid ex-parte decree.
That application was contested by the plaintiff. After hearing the arguments, the learned trial Court dismissed the same vide its order passed on 24.02.2022. Revision petition filed there-against also met the same fate.
5. I have heard arguments of learned counsel for the petitioner and perused the record.
6. The record shows that the petitioner Nisar Ahmad, defendant No. 1, and Muhammad Ali, defendant No. 2, in the suit were served. They appeared before the learned trial Court. Defendant No. 2 appeared on three different dates of hearing. He was proceeded against ex-parte on 04.11.2020. The petitioner also appeared on that date but he remained absent and was placed ex- parte vide order dated 08.12.2020. On 22.01.2021, the petitioner submitted an application for setting aside the ex-parte proceedings. He did not prosecute those proceedings even. Thus, the plaintiff produced his evidence and ex-parte decree was passed against him on 19.07.2021. He submitted an application for setting aside the ex-parte decree on 26.11.2021.
7. The applicable law in the case in hand is laid down in Order IX, Rule 13, C.P.C. For the sake of quick reference, the aforesaid Rule is reproduced below: "ORDER IX- Appearance of parties and consequence of non-appearance [...] 13. Setting aside decree ex parte against defendant.---(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, paym ent into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.
(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)."
8. As the petitioner along with co-defendant had already joined the proceedings though his application for setting aside ex-parte proceedings was pending, the question of service of Court process is not involved herein. The petitioner has to show sufficient cause for his non-appearance.
In para-3 of his application, the sufficient cause he has shown is that a few days before the date fixed, he was tested positive for Covid-19. In para-4, he has stated that he had also lost the parcha paishi. He did not annex the report of his illness due to the Corona Virus. It needs no emphasize that the Corona Virus occurred as a pandemic and proper tests were to be conducted for its detection.
In other words, a proper report was to be submitted by the petitioner. As the learned Courts below have observed the ordinary duration of the Corona Virus was at the most one month. The petitioner moved his application four months after passing of the ex-parte decree. He did not submit an application for condonation of delay.
9. There is a good deal of case law of the subject of setting aside the ex-parte decree from the perspective of hearing of the suit within the period prescribed under the law of limitation. In the case of Managers Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678), in which dismissal of appeal for appellant's default was at issue, the august Supreme Court has considered the phrase at length and observed that the word 'hearing' has not been defined in the Civil Procedure Code, 1908 but the same apparently is used in different rules for different purposes for which a date is fixed for hearing of the suit. In Sher Wali Khan v. Mst. Khosh Begum (2011 CLC 421) [Gilgit-Baltistan Chief Court] with reference to certain case law, the phrase 'when the suit is called on for hearing' in Rule 13 above has been discussed.
The Hon'ble Court has observed: "When a Court passes an ex-parte decree when the suit is called on for hearing then the remedy, for setting the same aside, has been provided under Order IX, Rule 13, C.P.C., whereby a defendant can file an application for setting aside the ex-parte decree but the application must be shielded with sufficient cause to justify the nonappearance of the defendant on the date the ex-parte decree is passed and the application must be within 30 days under Article 164 Limitation Act as the application under Order IX, Rule 13, C.P.C. is governed under Article 164 Limitation Act. The remedy under Order IX, Rule 13, is available to a defendant only when the ex parte decree has been passed when the suit is called on for hearing."
It appears that the limitation for setting aside the ex-parte decree is thirty (30) days under Article 164 of the Limitation Act, 1908 ("Act of 1908").
10. Similarly, in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 Supreme Court 21), it was held that when setting aside of the ex parte decree is applied for on the basis of sufficient cause, then limitation will be governed under Article 164 of the Act of 1908. For ready reference, relevant portion of the aforesaid judgment is reproduced as under: "When any cause is shown for nonappearance at the first hearing whether non-service of 'summons' or any other sufficient cause, e.g. an accident on the way, an act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of knowledge of the decree, when the 'summons' was not duly served; otherwise from the date of the decree. And the remaining cases, other than those of first hearing, would not be governed by Article 164."
11. It is fully established from the record that the petitioner had knowledge of the Ifs against him. As such, his application would be covered by Article 164 of the Act of 1908, which provides 30 days limitation for filing such an application. His application was time barred for four months and was also not supported by any application for condonation of delay.
12. In light of the above discussion, the instant writ petition is found to be meritless. It is, therefore, dismissed in limine.