Through the instant civil revision petition, the petitioner, Qaiser, impugns the judgment and decree dated 04.03.2024 passed by the Court of the learned Additional District Judge, whereby his appeal against the order dated 12.01.2024 passed by the Court of the learned Civil Judge, Islamabad, was dismissed. Vide said order dated 12.01.2024, the learned Civil Court dismissed the petitioner's application under Order IX Rule 13 of the Code of Civil Procedure, 1908 ("CPC") for setting aside ex parte judgment and decree dated 19.09.2023.
2. Learned counsel for the petitioner submitted that on 18.06.2022 the respondent, Iffat Abbasi, instituted a suit for recovery of possession and mesne profits against the petitioner; that on 01.10.2022 the petitioner filed his contesting written statement in the said suit; that issues were framed on 26.10.2022; that the case was at the stage of recording of respondent's evidence when the petitioner's counsel, Mr. Shahzad Mashhadi, Advocate, who was suffering from cancer fell severely ill; that due to the counsel's ailment, the petitioner was not aware of the proceedings in the suit; that vide order dated 24.05.2023, the learned trial Court proceeded ex parte against the petitioner; that the learned trial Court decreed the respondent's suit in the petitioner's absence vide ex parte judgment and decree dated 19.09.2023; that in November, 2023, after the learned executing Court appointed a Bailiff for taking possession of the suit property, the petitioner came to know about the said ex parte judgment and decree dated 19.09.2023; that within one week of gaining knowledge, on 01.12.2023 the petitioner filed an application under Order IX Rule 13 CPC; that the petitioner had come to know that on 15.04.2023, someone produced memo of appearance before the learned trial Court on his behalf which was unauthorized; that the petitioner had not appointed any counsel other than Mr. Shahzad Mashhadi, Advocate who fell severely ill due to cancer; that despite establishing before the learned trial Court that his counsel was ill, the petitioner's application for setting aside ex parte judgment and decree dated 19.09.2023 was dismissed vide order dated 12.01.2024 passed by the learned Civil Court; and that the petitioner's appeal was also dismissed vide the impugned judgment dated 04.03.2024.
3. Learned counsel further submitted that since the suit was not at the stage of first hearing of the issuance of summons, the period of limitation for filing an application for setting aside ex parte judgment and decree was not to be governed by Article 164 of the Limitation Act, 1908; and that in terms of the ratio set by the Ho'nble Supreme Court in case of M/s Rehman Weaving Factory Vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21), the limitation period for such an application was three years as provided in the residuary Article 181 of the Limitation Act, 1908.
Learned counsel for the petitioner prayed for the instant petition to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for the petitioner also placed reliance on the judgments reported as 2018 YLR 779, 1989 CLC 825 and 2001 CLC 1976.
4. I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance.
5. The record shows that even before the ex parte order dated 24.05.2023 was passed by the learned trial Court, the petitioner's conduct before the said Court was not aboveboard. I say so because after the respondent instituted the suit and summons were issued, the petitioner appeared for the first time on 01.07.2022. On the said date, he was directed to file a written statement and the next date of hearing was fixed for 28.07.2022. The petitioner did not submit a written statement on the next two dates of hearing over a period of three months and eventually the Court had to impose a penalty of cost on him.
6. The copy of the order sheet of the learned trial Court further shows that on 10.12.2022, statement of the respondent's witness, PW-1, was recorded through affidavit and case was adjourned to 05.01.2023 for the recording of cross-examination by the petitioner. On 05.01.2023 the petitioner's representative sought an adjournment on the ground that his counsel was ill. The learned Court gave a last opportunity for cross-examination and adjourned the case to 17.01.2023. Thereafter, the case was adjourned nine times in the next four months and even a penal notice under Order XVII Rule 3 C.P.C. was issued by the learned trial Court. The petitioner however, did not conduct cross- examination in compliance with the learned trial Court's successive orders. The order sheet further reveals that on various dates of hearing i.e. 05.01.2023, 17.01.2023, 30.01.2023, 13.02.2023, 18.03.2023 and 29.03.2023, the attendance of the petitioner's representative was marked. This shows that the petitioner was aware of the on-going proceedings before the learned trial Court.
7. In the case of Akram Rashid Vs. Hamid Ali Khan (2015 CLC 1290), this Court held that once defendant had participated in the proceedings and then absented himself, the provisions of Art.164 of Limitation Act, 1908, were attracted, which provided a limitation period of thirty days for an application to set aside ex-parte judgment and decree. Paragraph 6 of the said report reads thus:- "6. The petitioner/defendant had admittedly participated in the proceedings and, thereafter, absented himself, resulting in the suit being decreed ex parte. The perusal of the suit reveals that the petitioner/ defendant was made a party by name and he was fully aware that the Centre had not been made a party. He filed the written statement, and at some stage of the proceedings a counsel also appeared on his behalf. The sole question before this Court is to determine whether the trial Court and the Appellate Court committed any illegality or material irregularity while passing the respective impugned judgments and decrees. It is also noted that the question for determination by this Court is whether Article 164 of the Limitation Act, 1908 was applicable or Article 181 thereof. It is settled law that once the defendant had participated in the proceedings and then absented himself, the provisions of Article 164 of the Limitation Act, 1908, will be attracted, which provides a period of thirty days. Moreover, this Court concurs with the learned counsel for the respondent/plaintiff that in case of delay the petitioner/defendant was required to explain and give reasons for each day beyond the prescribed time of limitation.
Admittedly, an application for condoning the delay was neither filed, nor is the reason for the delay sufficient or satisfactory. Reliance is placed on 2008 SCMR 287 (Secretary Education Department, Government of N.-W.F.P. Peshawar and others v. Asfandiar Khan), 2007 SCMR 449 (Iftikhar Ahmad v. Mst. Jehan Ara and 3 others), 2006 SCMR 631 (Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen), 2005 SCMR 609 (Honda Atlas Cars, Pakistan Ltd. v.
Honda Sarhad Pvt. Ltd. and others), 1996 SCMR 596 (Muhammad Saleem and others v. Mukhtar Ahmad), 1995 SCMR 936 (Alam Ali Syed v. United Bank Limited, Lahore) and PLD 2011 SC 676 (Dr. Muhammad Shahid Mian and another v. Faiz ur Rehman Faizi)."
8. Additionally in the case of Muhammad Ismail etc. Vs. Mst. Waheedan (2016 YLR 1646) the Hon'ble Lahore High Court held that if summons were served upon the defendants and they absented from the proceedings then limitation period for an application to set aside the ex-parte decree would be governed under Art. 164 of the Limitation Act, 1908 and period of thirty days provided therein would be reckoned from the date of decree. In the said case, the defendants after filing their written statement did not participate in the proceedings and ex-parte decree was passed against them on 29.10.2010. On 03-06-2011, they filed an application for setting aside ex- parte decree which was accepted by the trial Court. But on appeal, the order of the trial Court was set aside and the application for setting aside ex-parte judgment and decree was dismissed by the appellate Court. Faced with these orders at variance, the Hon'ble Lahore High Court while upholding the judgment of the appellate Court observed that defendants were in knowledge of the suit pending before the trial Court, but they remained dormant for an unreasonable time to defend the same. It was further observed that Article 164 of the Limitation Act, 1908 was attracted to such eventuality and that the application filed by the defendants for setting aside ex-parte decree was time-barred. Law to the said effect has also been laid down in case of Khayal Badshah Vs. Afzal Khan (PLD 2015 Peshawar 59).
9. I have also gone through the impugned order dated 12.01.2024 passed by the learned trial Court.
Vide the said order, the learned Court has aptly referred to the dicta laid down by the Hon'ble Supreme Court in cases of Secretary Education Department Government of N.-W.F.P. Vs. Afandiar Khan (2008 SCMR 287) and Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Srahad (Pvt.)
Ltd. (2005 SCMR 609). In the last referred case a larger bench of the Hon'ble Supreme Court held that residuary Article 181 of the Limitation Act, 1908 was applied in the case of Messers Rehman Weaving Factory (PLD 1981 SC 21) in view of the peculiar facts and circumstances of the said case, "otherwise it is 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..."
10. The petitioner has been unable to show as to how in passing the impugned concurrent judgment dated 04.03.2024 and the order dated 12.01.2024, the learned civil Court had committed an error of jurisdiction or had exercised jurisdiction illegally or with material irregularity.
Consequently, the instant revision petition is dismissed in limine.