' This application under Order IX, rule 13 read with section 151, C. P. C. Was filed on 3rd November, 1977 whereby the defendants seek to set aside the ex parte decree passed on 22nd August, 1977 but signed on 21st September, 1977. Subsequently on 24th September, 1978 an application (C. M. A.
No, 2304/80) for condonation of delay was also moved under section 5 of the Limitation Act.
2. By an order passed on 1st February, 1981 it was directed that the above-mentioned' application for setting aside ex parte decree be treated in the alternative and/or having been originally made under Order XLVII, rule 1, C. P. C.
3. At the very outset it may be mentioned that the application (C. M. A. No, 2304/80) under section 5 of the Limitation Act filed on 24th1 September, 1978 is untenable for the reason that at the time when the decree was passed on 22nd August, 1977 and thereafter when the above mentioned application was moved, the provisions of section 5 of the Limitation Act had not been made applicable to the applications under Order IX, rule 13, C. P. C. The same thus being untenable is accordingly dismissed.
4. The above observations however do not resolve the controversy as time prescribed for filing an application for setting aside ex parte decree passed on a date other than the first date of hearing affixed in the summons would not be governed by the period fixed by Article 164 of the Limitation Act in view of the judgment of the Honourable Supreme Court of Pakistan in the case Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (1) where it was observed:-- " it would govern only those applicants which seek the setting aside of that ex parte decree which has been passed after the service (or non service) of the 'summons' issued for the first hearing visualised under Order IX, rule 6(1)(a). The word 'summons' is not only the key to the interpretation of third column, but it will also govern the entire Article. 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 the 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."
5. This brings me to examine if sufficient cause for setting aside the ex parte decree has been made out by the defendants. Mr. Mansoor Ahmad Khan pointed out that the suit was filed on 17th October, 1970 the defendants made appearance through their counsel engaged in the suit in whose favour the Vakalatnama was executed by them on 26th January, 1971 and the written statement was filed on their behalf contesting the claim in the suit on 15th March, 1971. The defendants also made discovery of documents on oath, on 28th April, 1971 and the consent issues thereafter were framed by the Court on 10th May, 1971. Much before the framing of the issues Mr. Mujahid, the then Advocate appearing for the defendants migrated to Uganda and in his place Mr. Abdullah Shah was appointed Advocate to represent the defendants.
' It was argued that after the framing of issues on 10th May, 1971 till the passing of the ex parte decree on 22nd August, 1977 no proceedings took place as the suit remained pending awaiting its fixation for regular hearing. In the meantime due to the political conditions then prevailing in the country Mr. Abdullah Shah, a politician, was arrested and/or detained. The defendants pleaded on oath that they were not in a position to know the fate of their counsel Mr. Abdullah Shah, that they had no reason to believe that the said Advocate would not pursue the suit or that he would allow the same to be decided ex parte and that they themselves were never negligent of their obligations, promptly and vigorously persued the case and appeared in the Court whenever called by their Advocate and that they never ignored or acted negligently in the case which involved a high claim which had been repudiated and denied in the written statement. It was further stated that the defendants were
(1) PLD 1981 SC 21 ' available on their Advocate's call but he never informed them about the fixation of their case for regular hearing on 22nd August, 1977 and that on 14th October, 1977 for the first time they came to know of the said ex parte decree when they rushed Mr. G. K. Shaikh Advocate to find out the matter when it transpired that the said suit had already been decreed ex parte. Accordingly they obtained a copy of the decree, and moved an application for setting aside the same. They further pleaded that after the information received of the passing of the decree as mentioned above, they tried to contact Mr. Abdullah Shah, their former Advocate but the people at his house kept on saying that he was out but ultimately it was found that he was some where under detention. According to the defendants in the circumstances neither their counsel Mr. Abdullah Shah was aware of the fixation of the said case for regular hearing, nor there was any default or negligence on the part of the defendants and that in equity as well as in law the defendants should not be made to suffer in respect of a claim which they denied and which they were vigorously defending. The learned counsel contended that it was a fit case for setting aside ex parte decree as the defendants were prevented from appearing on the date of hearing for the reasons beyond the control of their Advocate as well as their own control, and that they should not suffer for any default of their Advocate who himself was under detention.
6. The plaintiffs have not filed any counter-affidavit and accordingly the statement of facts made in the affidavit on oath by the defendants for the purposes of disposal of this application, are deemed to be admitted.
7. Having heard both the learned counsel for the parties I find that in the matter of setting aside an ex parte decree and to determine whether the cause shown was sufficient each case is to be decided on its own. In this particular case, as noted above we have seen that the defendants acted throughout with due diligence. After receiving the summons from the Court they made appearance through their counsel Mr. Mujahid Hussain and also filed their written statement on 9th March, 1971. They also made discovery of documents and in the presence of their Advocate consent issues were framed on 10th May, 1971 by the learned Judge. Subsequently on the migration of their Advocate Mr. Mujahid Hussain to Uganda the defendants made substitution and appointed another counsel namely Mr. Abdullah Shah. From 10th May, 1971 to 22nd August, 1977 when the ex parte decree was passed no proceedings took place in the suit Mr. Abdullah Shah a politician was arrested kept in detention and thus neither the said counsel (Mr. Abdullah Shah) nor the defendants could know about the date of hearing fixed in the case by the Additional Registrar which resulted in passing of the ex parte decree on 22nd August, 1977 against them in spite of the fact that the defendants were all along pursuing the proceedings diligently and vigorously. These assertions as noted above have not been contested or denied by filing any counter-affidavit.
8. In the circumstances of the case, I am of the opinion that the principles laid down in the case of Abdul Hameed Ismail v' M Is. Abdul Rehman Abdul Ghani (1) wherein in the opinion was delivered by Mr. Justice Waheed judging (as he then was) would be attracted. The facts of
(I) PLD 1959 Kar. 376 ' the said case briefly stated were that statement was made on oath that there was an understanding between the counsel for the parties that they would inform each other of the date fixed for the final hearing of the suit. The counsel for the defendant however remained absent on the date of hearing as he was upset on account of serious illness of his son and was unable to pay much attention to his work as is ordinarily expected from a counsel. In the circumstances it was held that it was a sufficient cause and thus while setting aside the ex parte decree the learned Court held :- "It further appears to us that a party should not be penalised for the negligence of his counsel. The appellant was not aware about the dates fixed for the hearing of the suits. He was not expected to know about it except through his counsel, as the dates on the original side of this Court are fixed on Saturday by the Registrar. "Ordinarily on this day only the counsel and their clerks attend before the Registrar. It is, therefore, clear that the appellant's absence on the date fixed in the two suits was not deliberate but accidental. On the whole we consider that there was sufficient cause for the non-appearance of the appellant on 6th January, 1956 before the trial Court. On the facts of this case it will not meet the ends of justice if we penalise the appellants for lack of diligence on the part of his counsel.
9. Keeping the principles laid down as above and finding that the application has been made within time and that defendants have all along been vigilently following the suit I hold that on the facts and circumstances of this case sufficient cause has been made out for setting aside the ex parte decree. At the same time I find that ends of justice would be met by awarding cost for the delay caused in the disposal of the suit.
' Accordingly the ex parte decree passed on 22nd August, 1977 is set aside subject to the condition that the defendants pay a sum of Rs, 2,500 as costs to the counsel for the plaintiffs within 15 days.