1. ' This Civil Revision Application under section 1145, C. P. C. Is directed against the order dated 24th June, 1980 passed by XXII Civil Judge, II Class, Karachi in Suit No, 2807 of 1979, whereby the application under Order IX, rule 13, C. P. C. For setting aside the ex parte judgment and decree dated 13th December, 1979 was rejected and also against the judgment dated 14th July, 1981 passed in Civil Appeal No, 218 of 1980, by the II Additional District Judge, Karachi in the following circumstances.
2. ' The respondent filed a suit, being suit No, 2807 of 1979, for restoration of possession and mesne profits. It is stated at the bar that the summons of the suit was served for appearance of the defendant in Court on 29th August, 1979. From the diary sheet of the suit produced, it appears that on 29th August, 1979 Mr. M. M. Hach Advocate filed power for the applicant/defendant and the hearing was adjourned to 30th September, 1979, for the purpose of filing of written statement. But on 30th September, 1979, the written statement was not filed so the hearing was adjourned to 26th November, 1979 for the same purpose. On this date the respondent/ plaintiff's counsel was present but no one was present on behalf of the applicant and no written statement was filed, therefore, the Court adjourned the hearing for 12th December, 1979 for filing ex parte proof with the observation that more than 3 months had passed and it was then 12-25 p.m. And no intimation was given to the Court. On the last mentioned .Date the counsel for the respondent had filed an affidavit in ex parte proof and the. Court adjourned the case to 13th December, 1979 for orders and accordingly on this date decreed the suit ex parte as prayed.
3. ' On 20th December, 1979 the applicant filed an application under Order IX, rule 13, C. P. C read with section 151, C. P. C. For setting aside the order dated 13th. December, 1979 and for allowing the defendant to file the written statement and contest the suit on merits. The application was rejected by the order dated 26th April, 1980. While rejecting the application, the learned Civil Judge observed that the defendant knowingly delayed the filing of the written statement and remained silent till the suit was decreed ex parte although he had opportunity to get the ex parte order .Set aside under Order IX, rule 7, C. P. C.
4. ' Aggrieved by this order the applicant filed an appeal, under XLII1 rule 1, C. P. C., being Civil Appeal No, 28 of 1980, Contending that on 26th November, 1979 at 1.30 p. m. The applicant and ;his Advocate have appeared before the trial Court to file the written statement but he came to know that ex parte order was already passed. :However, appeal was dismissed by the judgment dated 14th July, 1981 and while dismissing the appeal the learned Additional District Judge observed that the perusal of R & P showed that the applicant on coming to know on 26th November, 1979 that the suit was ordered to proceed ex parte against him, did. Not have his presence noted before the Court by also inform (?) that he had brought the written statement to file it. He further observed that not only that, but the applicant did not move application .To-get ex parte before the date of judgment although he . 'bad about 16 days at his disposal. Be therefore, held that the reasons given by the applicant for setting aside the ex-pane order and the ex parte judgment and decree were neither sufficient 'nor satisfactory. He further observed that, on the contrary, it appeared that the applicant was interested more in protracting the proceeding rather than proceeding substantially with the-suit. He accordingly, dismissed the appeal.
5. ' Therefore, the applicant has come up in this civil revision application.
6. ' I have heard Mr.. Muhammad Yaseen 'Azad learned counsel for the applicant and Mr. Hazratji for the respondent.
7. ' It is submitted by the learned counsel that the observations of the Civil Judge in the diary sheet dated 26th November, 1979 that more than .Three months bad passed was not correct inasmuch as the counsel for the defendant had filed power on 29th August, 1979 when he was allowed time to file the written statement up to 30th September, 1979- while the ex parte order was passed on 26th November, 1919 when only two months and twenty-seven days had passed. .
8. ' It was next submitted by. The 'learned counsel that it was the duty of the learned Civil Judge to record the statement of the respondent on oath as the respondent's plaint was not supported with any document. In support of this submission the learned counsel has relied on Muhammad Ali and another v. Abdul Hamid.
9. ' It was lastly submitted that the suit for possession was not maintainable before the lower Court.
10. ' Now, taking up the first submission it may be stated that the learned counsel relied on the provisions of Order VIII, rule 1, C. P. C. Which provides that the defendant may, and, if so required by the Court shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. This rule further provides in its provision that the period a/lowed for filing the written statement shall not ordinarily exceed ninety days. On the basis of this rule he submitted that since 90 days had not passed no order for taking ex parte proceedings could have been passed. In my view the submission is based on misconception of the law for the learned counsel fails to take into consideration the fact that the period of 90 days provided is ordinarily the maximum period for otherwise the defendant is required under the rule to file his written statement at or before the first hearing. Further, the rule does not lay down that Court must give 90 days' time in every case. Moreover, in the present case the defendant was served with the summons on 11th August, 1979 and the order was passed on 26th November, 1979. However, it was further submitted that the diary sheet does not show that the applicant was served on 11th August, 1979. But it is not correct for the report of the bailiff is available on the record which shows that the summons was served on 11th August, 1979. This submission. Therefore- too has no substance, whatever.1 ' As regards the last two submissions, they pertain to the merits of the decree passed in the suit against which no appeal was filed for in the memorandum of appeal before the learned Additional District Judge it was clearly stated that it was an appeal under Order XLIII, rule 1, C. P. C. And therefore, against the order whereby the application under Order IX, rule 13, C. P. C. Was dismissed. 1 may here reproduce in extenso the heading of the appeal and the opening paragraph which reads as follows :- "Appeal under Order XLIII, rule I.-The words "read with section 96, C. P. C." have been scored off"
11. "Being aggrieved by order dated 26th April, 1980 passed by the learned XXIIth Civil Judge Second Class, Karachi in suit No, 2807/1979 Muhammad Farooq v. Haji Zakaria whereby the Application under Order IX, rule 13, C. P. C. Has been rejected for setting aside ex parte decree and judgment dated 13th December, 1979 the above-named appellant prefers this appeal on the following facts and grounds :-"
12. ' It was then contended that the present revision application is also against the ex parte decree dated 13th December, 1979, besides the order dated 26th April, 1980 passed by the Civil. Judge, and the judgment dated 14th July, 1981 passed by the II Additional District Judge, Karachi. This submission has no substance for revision could be filed against the judgment dated 14th July, 1981 and no revision was maintainable against the order dated 26th April, 1980 as appeal has been expressly provided in the Code of Civil Procedure against the same. So far as the ex parte decree is concerned this revision application is not against the same as would be clear from the opening paragraph of the appeal which reads as follows :- "Being aggrieved by order dated 26th April, 1980 passed by the learned XXIIth Civil Judge Second Class, Karachi in suit No, 2807 of 1979 Muhammad Farooq v. Haji Zakaria whereby the application under Order IX, rule .13, C. P. C. Has been rejected for setting aside ex parte decree and judgment dated 13th December, 1979 and subsequently judgment dated 14th July, 1981 on Civil Appeal No, 218/80 (Haji Zakaria v. Muhammad Farooq) of Second Additional District Judge, Karachi the above- named appellant prefers this appeal on the following facts and grounds :-"
13. ' Besides the ex parte decree was appealable under section 96, C. P. C. As stated by the learned counsel for the applicant himself. Since the last two Submissions relate to the merits of the decree which could be gone into in appeals only, I therefore, cannot go into them. Accordingly, I find no substance in this revision and dismiss it, leaving the parties however, to bear their own costs. 1982 CLC 647