ZAFFAR HUSSAIN MIRZA, J.--This order shall dispose of Civil Petitions K-352 and K-353 of 1984, which are between the same parties and in which common questions of law and fact are involved.
The relevant facts as appear from the impugned judgment of the High Court are that the respondent's suit for possession of the property in dispute comprising a shop having been dismissed by the first appellate Court, he filed to second Appeals in the High Court of Sind, Karachi (Second Appeal No. 13 of 1972 and Second Appeal No. 14 of 1972). It is common ground that the present petitioners, who were impleaded as respondents in the said to appeals, were initially served with the notice of appeal after its admission to regular hearing, but as they remained absent on the date of final hearing of the appeals, the Court heard them ex parte and allowed them on 21-8-1983.
2. On 21-12-1983 the petitioners submitted identical applications under Order XLI, rule 21 and section 151 of the Civil Procedure Code and section 5 of the Limitation Act, praying for rehearing of the appeals decided ex parte against them. The High Court held that section 5 of the Limitation Act was not applicable to applications under Order XLI, rule 21 of the Civil Procedure Code and dismissed the condonation application accordingly. As a result the applications for rehearing of the appeals under Order XLI, rule 21 were dismissed as the-barred. Additionally the High Court was of the view that "even otherwise no sufficient cause has been made out by the respondent" and, therefore, no relief could be granted under the inherent powers of the Court under section 151 of the Civil Procedure Code. All the applications filed by the petitioners were, therefore, dismissed by order, dated 6-5-1984. The present to petitions are directed against the last mentioned order from which the petitioners pray for leave to appeal.
3. Mr. Muhammad Sharif, appearing in support of the petitions, first contended that the High Court had erred in holding that section 5 of the Limitation Act was not applicable to the main application of the petitioners under Order XLI, rule 21 of the Civil Procedure Code. In this behalf the learned counsel, relied upon a proposition of law, which to say the least, was rather startling. In his submission by virtue of subsection (2) of section 107 of the Civil Procedure Code, the appellate Court possesses the same powers and performs the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted therein.
Elucidating his submission learned counsel referred to the amended provisions of Order IX, rule 13 of the Code of Civil Procedure under which the Court is empowered to set aside a decree passed ex parte against the defendant and by Ordinance X of 1980 the provisions of section 5 of the Limitation Act had been made applicable to such an application on the part of defendant for which the prescribed period of limitation is thirty days from the date of decree. According to the learned counsel, since appeal is a continuation of the proceedings of the suit, the appellate Court can exercise power of condonation of delay in filing application for re-hearing of the appeal in the same manner as the original Court could do so in relation to an application for setting aside ex parte decree. In our opinion, the argument though ingenious is wholly misconceived for the simple reason that the provisions of section 5 of the Limitation Act not having been made applicable to an application under Order XLI, rule 21, C.P.C., there is no justification to make them applicable by implication in the circuitous way in which the learned counsel urges us to do. Section 5 of the Limitation Act reads as under:- "5. Extension of period in certain cases.--Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the the being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.--The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."
4. A plain reading of the provisions reproduced above would show that section 5 would be applicable only be virtue of a legislative enactment for the the being in force by which it is so made applicable to any application (apart from an appeal or application for a revision or a review of judgments). It has been conceded at the Bar that there is no provision in any enactment for the the being in force making section 5 specifically applicable to an application for rehearing of an appeal heard ex parte. We need not dilate on this argument any further as by a long line of authorities it has been held that section 5 does not apply to applications not falling within the classes mentioned therein. The procedure for the hearing of appeals has been separately provided for in Order XLI of the Civil Procedure Code and for the trial of suits there are elaborate provisions separately contained in the Civil Procedure Code and the rules contained in the First Schedule attached thereto Consequently the provisions relating to the setting aside of the ex parte decrees passed by the trial Court on the original side cannot be stretched merely on the basis of the proposition that an appeal is a continuation of the proceedings and applicable to the procedure for hearing and disposal of appeals from the original decrees or appeals from the appellate decrees for which the same procedure as contained in Order XLI has been made applicable by virtue of Order XLII, rule 1 of the Civil Procedure Code,
5. Learned counsel next contended that Article 169 of Schedule 1 to Limitation Act which prescribes the period of limitation for an application for re-hearing of an appeal heard ex parte is not attracted in the present case but the residuary Article 181 would apply, because the petitioners or their counsel had no due notice of the date of hearing on which the appeal was heard ex parte.
This argument is also, on the face of it, without substance. Article 169 as the third column thereof indicates clearly also deals with a case in which notice of the appeal has not been duly served.
Consequently to our mind there is no question of the residuary Article 181, having application in the present case at all. The learned counsel, however, strongly urged that in the present case since no notice of the hearing fixed by the Court for disposal of the appeal was served on the petitioners, the limitation period for the making of the application started to run from the date of the knowledge of the decree, by the petitioners. According to the learned counsel computing the period thus the application was well within the
6. Now in order to better appreciate the argument of the learned counsel it would be necessary to refer to the provisions of Article 196 which reads as under:- "169. For the rehearing Thirty days The date of the decree of an appeal heard in appeal, or, where ex parte. Notice of the appeal was not duly served, when the applicant has knowledge of the decree."
It will be noticed that ordinarily limitation under this Article commences from the date of decree passed in appeal. The third column in this Article, however, provides that "where notice of the appeal was not duly served", then the thirty days' limitation period commences from the date of knowledge of the decree by the party making the application. Now this expression "notice of the appeal was not duly served" has been a subject-matter of conflict of judicial opinion in various decisions in the sub-continent. . According to one view the notice referred to means the first notice as regards the appeal to be served on the respondent and not to notice as to subsequent dates of hearing, whereas according to the contrary view the notice refers not to the notice of the admission of the appeal but the date fixed for hearing of the appeal. We, however, do not consider it necessary to go into this question as according to us the case of the petitioners would fail even if notice of the date of hearing is taken into consideration. The relevant facts for its purpose may now be stated.
7. The appeals filed by the respondent in the High Court were admitted to regular hearing in the year 1972 and it was conceded by the learned counsel that the first notice of the appeal was duly served on the petitioners. They had also engaged an Advocate to represent them in the appeals.
The appeals were listed and fixed for regular hearing before the High Court for the first the on 1-6- 1983. On this date the petitioners and their counsel were absent, but the case was adjourned to a date in office at the request of the respondent herein (who was appellant before the High Court).
Then intervened the summer vacations of the Court and the appeals were fixed for regular hearing once again on 7-8-1983. On this date as well the petitioners and their counsel remained absent.
The Court, therefore, proceeded to hear the appeals ex parte and the hearing concluded on 8-8- 1983, and the judgment was subsequently pronounced on 21-8-1983. According to the petitioners case as disclosed in the application for re-hearing, the came to know about the judgment on receipt of notice of execution application on 30-11-1983. Respondents then contacted their Advocate Mr. S.A. Hashmi, who informed them that due to continuous illness he remained totally confined to bed from 25-5-1983 to 28-8-1983, and therefore, he could not pursue the matter or know about the date of hearing fixed for regular hearing of the appeals. On the basis of these alleged facts, the respondents contended before the High Court that they were totally unaware of the judgment and decree passed in the appeals and urged that the period of limitation should be computed from 1-12-1983. The application for rehearing of the appeals was submitted on 21-12- 1983. The respondent's counsel Mr. Hashmi also filed an affidavit in support of the application stating about his illness. The High Court examined these facts and came to the conclusion that the petitioners and their counsel had not acted with due diligence and if they had exercised due care they would have known about the dates of hearing. It was observed: - "From the record it seems clear that the appellant has challenged the statement that the respondent's Advocate was sick from 25-5-1983 to 28-8-1983. The learned counsel for the appellant further pointed out that the weekly list for the week commencing from 28-5-1983, which included the cases fixed on 1-6-1983, had been issued at least about to weeks earlier. So according to the appellants' counsel, when the weekly list was issued the respondent's counsel was not sick, and therefore, he would have come to know before his sickness on 25-5-1983 that the matter was fixed for hearing on 1-6-1983. On that date the respondents did not appear and the matter was however adjourned as appellant's Advocate was busy in another Court. If the respondents and their Advocate would have been vigilant it ought to have been within their knowledge that the appeals have been fixed on 1-6-1983, and henceforth they will be regularly fixed and will be notified in the weekly and daily cause list."
8. Learned counsel for the petitioners was unable to point out any fallacy in the reasoning adopted by the High Court in the aforementioned reproduced portion of the judgment, except for submitting that the assertion of Mr. Hashmi that he was sick and confined to bed was not specifically denied.
However, even taking into account this assertion, the High Court, found the Advocate negligent in his duty to have himself informed about the date of hearing. Counsel very fairly conceded that according to the rules applicable to the High Court notice for the hearing of appeals is required to be given through the cause list affixed on the Notice-board of the High Court. In our opinion, therefore, there is no room for argument that notice of the hearing was not given to the petitioners.
They were represented by a counsel who was ordinarily stationed at Karachi and we are not informed as to why he did not apply for a general adjournment, if he was incapacitated from appearing in his cases before the High Court, which is the usual practice adopted by the counsel. If a party, but for reasonable care, fails to acquire knowledge of fact, in law such party is deemed to have constructive notice of the same. Under the circumstances, the argument that the petitioners did not have notice of the hearing fixed on 7-8-1983 is without substance.
9. Finally, the learned counsel argued that the notice by publication through cause list was in the nature of substituted service and, therefore, if actual knowledge was not proved, the second part of the third column of Article 169 would apply and the limitation would commence from the date of actual knowledge. Learned counsel was unable to cite any authority on this proposition, nor is he able to support it on any, principle of law. As has been conceded by him that notice of the cases fixed for hearing is given through the cause list in accordance with the Rules of the High Court, it follows that notice given in such manner is due notice to the concerned.
10. For all the aforesaid reasons we find no merit in these petitions which are accordingly dismissed.