' SHER ZAMAN CHAUDHRY, J.-This appeal by leave directed against the judgment and decree of the High Court passed on 18th July, 1979, whereby the learned Single Judge in the High Court while reversing the judgment of the District Judge, restored the Order of dismissal of the appellant's applica' tion for setting aside the ex parte decree recorded by the trial Court on 30th April, 1977, has arisen in the following circumstances :- ' To avoid a gift-deed executed by pro forma-respondents Nos. 6 to 11 on 21st September, 1967, in favour of appellant and pro forma-respondents Nos. 2 and 3, Gulzar Khan respondent filed a declaratory suit on 10th October, 1967, in the Court of Sub-Judge, Mirpur which was dismissed on 31st October, 1968. On appeal the judgment was set aside by the learned District Judge and the case was remanded back to the Court of Sub-Judge, Dudyal with the direction that the plaintiff be allowed to submit amended plaint and the case be tried afresh. The trial Court after receiving back the file from the Court of District Judge issued notices to the defendants. The order for substituted service through proclamation was then passed on 6th June, 1971. After taking ex parte proceedings on 25th October, 1971, against the defendants the trial Court then finally passed an ex parte decree against them on 30th April, 1972. The application for setting aside the ex parte decree was moved on 17th March, 1974, by Farid Khan appellant on the ground that he had been outside the country.
On his coming back from U. K. He acquired the knowledge about the ex parte decree on 24th February, 1974. There being a sufficient cause and the application having been made within the time, the ex parte decree, claimed the defendants, was liable to be set aside. The trial Court after taking necessary proceedings dismissed the application on 30th April, 1977, for having been filed beyond the period of limitation.
2. The correctness of this Order of dismissal passed on his application by the trial Court was challenged by the appellant through an appeal be ore the District Judge who vide his judgment dated 25th February, 1978, v the Order passed by the trial Court and while setting aside the ex parte decree ordered the fresh trial. Feeling aggrieved by this judgment of the District Judge the respondents then went in appeal before the High Court. The learned Single Judge in the High Court while reversing the judgment of the District Judge restored the order of the trial Court on the ground that the application for setting aside the ex parte decree was incompetent for having been moved after one month from the date when the petitioner-defendant acquired the knowledge. It is this judgment of the High Court passed on 18th July, 1979, the validity of which has now been challenged through this appeal by leave mainly on the grounds :-
(a) that after to remand order passed by the District Judge on 30th March, 1971 the suit would be deemed to have been instituted or presented on 7th August, 1971, when the amended plaint was presented before the trial Court which in turn necessitated issuance of process under Order V, rule 1, Civil Procedure Code. The proceedings taken by the trial Court against the appellant-defendant on the basis of process issued, prior to 7th August, 1971 were without any jurisdiction. Since the orders for ex parte proceedings and that of the ex parte decree having been passed without jurisdiction were nullity, no period of limitation was, therefore, involved in the present case. The impugned judgment was, therefore, bad in law ;
(b) that in any case the article prescribing limitation available in the instant case would be residuary Article 181 and not 164 of the Limitation Act. This aspect of the case having not been considered by the High Court, the impugned judgment could not, therefore, be maintained.
3. Elaborating, on his first point of objection, Raja Muhammad Siddique Khan, the learned Advocate for the appellant submitted that under the remand order issued by the District Judge on 30th March, 1971, the respondent-plaintiff was to submit the amended plaint and the case was to be tried afresh by the trial Court. The amended plaint was submitted in the Court on 7th August, 1971.
The file no doubt had been received back by the trial Court on 15th April, 1971 but then there was no duly instituted suit before the Court till 7th August, 1971 when the amended plaint was filed. As the suit would, according to the learned Advocate, be deemed to have been instituted on the day of presentation of the amended plaint i. e. On 7th August, 1971, the trial Court if intended to proceed with the case, was required to issue the process as provided under Order. V, rule 1 read with section 27 of C. P. C. To the defendants. The summons as visualised under Order V, rule 1 read with section 27 of the Code ought to follow and not to precede the due institution of the suit. The order for ex parte proceedings against the defendant passed on 25th October, 1971 followed by an ex parte decree against them on 30th April, 1972, on the basis of process issued prior to 7th August, 1971, argued the learned Advocate, having been passed without jurisdiction, were nullity in law and as such no period of limitation was involved. This aspect of the case was _ not considered by the High Court. The judgment under challenge according to him, could not, therefore, be maintained.
4. Controverting the arguments Mr. Muhammad Taj Chaudhry, the \Learned counsel for the respondents, argued that the whole argument has been bastd on mistaken assumption of the legal aspect of the point involved. The presentation of the amended plaint is, contended the learned. Advocate, always deemed to be in continuation of the originally instituted suit. The argument having no force according to him, was to be rejected.
5. The question that now needs to be resolved is as to what the term `due institution' of the suit precisely means. Whether the date when the amended plaint was presented before the Court would be deemed to be the date of due institution. To determine the validity of the arguments addressed on behalf of the parties we have examined the evidence on record and have gone through the judgments of all the Courts below. The learned District Judge, as appears from the perusal of his judgment, was of the view that the date of the presentation of amended plaint by the respondent in th trial Court would be deemed to be the date of the due institution of suit and as such the trial Court was, under law, .Bound to order the issuance of summon to the defendants as required under Order V, rule 1 of the Civil Procedure Code. Without issuing summons after presentation of the amended plaint and by proceeding against the defendant-appellant on the basis of the process issued prior to that date, the trial Court, had in the estimation of the learned District Judge, acted without jurisdiction and as such the ex parte proceedings taken followed by any ex parte decree passed by it were contrary to law. He, therefore, vacated the order of the trial Court. We have carefully gone through the judgment of the learned District Judge but have not been able to find anything in it which could show as to how and upon what authority or under what provision of law the learned District Judge came to such a conclusion.
6. A suit as provided under section 26 of the Civil Procedure Code is instituted when the plaint is presented before the Court of competent jurisdiction. This presentation however, is not the same as duly instituted suit for the purposes of issuing summons to the defendant as required under the Code. It is only when the plaint after its presentation has been checked and after proper scrutiny the Court registers it as a suit then it would be called as duly instituted suit. Summons under Order V, rule 1 of the Code, therefore, related to the first duly instituted suit and not to any subsequent presentation or representation of the amended plaint. The case, when after the remand, was sent back to the trial Court, would be deemed to have been restored to its original number.
7. We have gone through the report of the case titled Thakar Das Maji v. Chand Maji and another (I) relied upon by the learned counsel for the appellant. It was a partition suit originally brought in forma paupris. The contesting respondent before the High Court was opposite party in that application and consented to the plaintiffs being allowed to sue as a pauper and also made admission of the plaintiffs' claim. The application was allowed and registered as a suit. The respondent thereafter absented himself. He was proceeded ex parte and then ex parte decree was passed against him. He then after 7 years applied under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground that he was not served with any summons and that the application having been made within 30 days of the knowledge of the decree was within time. The petition before the High Court was opposed. By the plaintiff but it was allowed on payment of costs. The proposition that came to be considered by the High Court was as follows :-
(a) where in an application for a forma paupris suit a party had entered appearance whether the Court after allowing application and
(1) AIR 1960 Cal. 538 registering it, would be absolved of issuing summons as required under Order V, rule 1 of the Code ;
(b) where in an application for a forma paupris suit the defendant had, during the proceedings in an application to sue as forma paupris, made admission of the plaintiff's claim whether it would not be necessary for the trial Court to issue summons to the defendant under Order V, rule 1 of the Code.
8. On the first point it was held that appearance during the first -proceedings would not absolve the Court of issuing summons under Order V, rule 1 after the application is allowed and is registered as a suit. With regard to the second point, the petitioner before the High Court contended that admission made by the defendant brought the case within the proviso contained in rule 1 of Order V of the Code. Subsequent amended plaint however, would not make any difference. While rejecting the arguments Mr. D. N. Mukar Jhi J. Observed :-- "But we are unable to accept this argument. It is to be remembered here that the claim. Of the plaintiff which was originally made was substantially changed by amendment at a later stage, and as in law, the amendment would relate back to the date of the filing of suit, this amendment, by which the plaintiff's original case or claim was materially changed and which original claim may alone at the most, be said to have been admitted or accepted by the present contesting opposite party as defendant No, 3 in the above context or circumstance, would relate back to the date of presentation of the plaint and would form part of the said original plaint"
9. This authority on careful consideration is found not to be supportive to the plea taken by the appellant in the instant case. It rather operates against him. The proposition- now under consideration was, though indirectly, considered by the learned Judge in that case and it was held that presentation of amended plaint relates back to the originally instituted suit. We, therefore, hold that the finding arrived at by the learned District Judge on a faulty approach to the proposition was contrary to law and could nor be sustained. Since defendants were duly served with the first summons when the suit was originally instituted. No fresh summons under Order V, rule 1 of the Code were required' to be issued after presentation of the amended plaint. Argument having no force is, therefore, rejected.
10. Adverting to the second point of his objection Raja Muhammad Siddique Khan, the learned counsel for the appellant argued that Article 164 of the Limitation Act (hereinafter to be called the Act) providing limitation for application for setting aside the ex parte decrees related only to those cases of default in appearance where summons under Order V, rule 1 were issued. Since there exist no specific provisions in the Act providing limitation for setting aside the ex parte decrees passed in cases where notices were issued, such like cases would, therefore, be governed by the residuary article 381 of the Act. Since in the present case notices and not the summons were issued by the trial Court it would be governed by residuary article. His application for setting aside ex parte decree was, therefore, according to him governed by this residuary article of the Act and was well within time This aspect of the cage was not attended to by the High Court. The impugned judgment being contrary to law could not be maintained, In support of his contention reliance was placed by him on PLD 1981 SC 21.
11. As against this it was submitted on behalf of the respondent-plaintiff that the case was fully covered under Article 164 of the Act and as such the application, having been made beyond 30 days of the passing of the decree and even 30 days beyond his knowledge of the ex parte decree, was clearly time-barred. The impugned judgment according to him being perfectly in accordance with law, was open to no exception.
12. We have given our earnest thought to the proposition now under consideration and have examined the case law on the point relating to the period, both before and after independence.
Barring the cases wherein order directing ex parte proceeding/ex parte decree could be termed as coram non-judice, there appears to be a general judicial consensus on the point that Article 164 of the Limitation Act would apply to all the cases of ex parte decrees, whether passed in pursuance of the ex parte proceedings taken directly under rule 6 (1) of Order IX of the Code or by reference, due C to non-appearance of a defendant on an adjourned date of hearing under rule 2 of Order XVII of the Code of Civil Procedure. There is however, divergence of opinion as regard to the scope and meanings of the word `summons' used in column 3 of Article 164 of the Act. According to the strict line of interpretation as was adopted in Mian Kamal-ud-Din's case (1) Netal Sikar and others (2),.Sandi Harnam Singh (3) and Col. Atta-ur-Rebinan (4). The word 'summons used in Article 164- of the Act refers to the first summons issued under Order V, rule 1 to a defendant after institution o the suit. In an application for setting aside the ex parte decree, a defendant, if he into be benefited under second part in column 3 of the article, must prove that the first summons was not duly served and on' doing so he will D then be able to reckon the period of 30 days from the knowledge of the decree. If on the other hand the first summons was found to have been duly served then mere non-issuance or non-service of notice to the defendant about the adjourned date of hearing would not furnish him a valid ground to claim a count' of limitation from, the date of his knowledge of the ex parte decree passed against him. The period of limitation in such cases would, instead, be 30 days from the date when the decree was passed. The reasons for this strict approach, it appears, is based on the reason that a party when once duly served with the summons and intimated about the action it was then for him to keep himself abreast about the progress of the proceedings either personally or through an Advocate.
13. As against this there is another approach rather softer and comparatively liberal, based on the realization that even where the first summons were duly served and ex parte decree was passed against an absentee defendant at some adjourned date of hearing, there may still at least be some situations wherein the principle of natural justice and equity would require a comparatively liberal interpretation of the word 'summons' used in Article 164 of the Act. For instance where the file was summoned by an appellate or revisional Court and on its remittance back, the trial Court passed ex parte decree against absentee defendant despite of the fact that he was not served with a notice about the date of hearing either by the appellate-revisional Court or by the trial Court after reception of the file. Again if the case, during its pendency, is transferred from one Court to
(1) PLD 1952 Lah. 456 (2) PLD 1962 Dacca 60
(3) AIR 1954 Pb. 137 (4) PLD 1989 Lah. 181 another by the District Judge without fixing the date of hearing before,. The transferee Court and the transferee Court also not issuing any notice, ex pane decree passed against the absentee defendant in such a case would not be through any fault of the defendant, and will also be to his complete ignorance. It may rather be impossible for the defendant in such a case to apply under rule 13 of Order IX within 30 days from the date of decree. It would indeed be extremely hard in such like cases to place a strict interpretation on the word 'summons' used in Article 164.
14. Alive to this extreme hardship that may be caused by a strict approach towards interpretation of the word 'summons' and to soften down its rigour the learned Judges in some of the cases like Kapilaswa r Muhrana (I), Ragibir brothers (2), Nanda Daya Ram Jat (3) and Gobardhan and Ram Bisheshar Ram (4) followed the rule of liberal interpretation. Although in those cases first summons had been duly served and ex parte decree was passed at adjourned date of hearing yet 30 days period was held to have started from the knowledge of the decree and not from the date when it was passed. Notice was considered as akin and synonymous toward 'summons'. This liberal interpretation of the word 'summons' in our estimation is just and correct legal approach.
15. Defendants in the present case, as already stated in the earlier part of this judgment, were duly served with the first summons. It was at a subsequent stage when the case, after remand order passed by the District Judge, was received back by the trial Court to be tried afresh, that the notices to the defendants were issued. The learned Advocate for the appellant contended that the word 'summons' and not the notice has been used in Article 164. Since notices in the present case were issued against the defendants after ,he file was received back by the trial Court, it is the residuary Article 181 of the Act and not Article 164 that would apply. So, the application for setting aside ex parte decree moved by the appellant-defendant was well within time. In support of his contention he referred to PLD 1981 SC 21.
16. We have carefully gone through the report of this case titled Rehman Weaving Factory v.
Industrial Bank (5). The appellant in that case filed a civil suit against the Industrial Development Bank and Punjab Small Industries Corporation. The defendant contested the suit and had filed separate written statements. The appellant then applied for amendment in the plaint which was rejected. A revision petition tiled in the High Court by the appellant was also dismissed and the tile was sent back by the High Court to the trial Court. Notices were then issued for 23rd May, 1972 to the defendants. On the said date ex parte proceedings were ordered followed by an ex parte decree against them on 27th May, 1972. Their applications for setting aside the ex parte decree were dismissed for having been filed beyond the period of limitation. Their appeals before the High Court were accepted on the ground that service of the notices was made not only upon misrepresentation of fact but also on misapplication of proper procedure. The period of limitation was allowed to be counted from the knowledge of the decree and the applications were, therefore, held to be within time.
(1) AIR 1936 Pat. 490 (2) AIR 1916 Lah. 132
(3) AIR 1964 Madh. Pra. 261 (4) I R 1957 All. 815
(5) PLD 1981 $ 21
17. On appeal before the Supreme Court the appellant-plaintiffs' plea was that it was a simple case of absence of defendants on the date of hearing. Therefore, whatever, grounds might be urged in support of application for setting aside ex parte decree, for purposes of limitation the case would have to be governed by Article 1n4 of the Act meaning thereby that under the said article period for application for setting aside ex parte decree would be 30 days from the date of the decree and if first summons were not duly served then 30 days from the knowledge of the decree. As in that case defendant had absented on the adjourned date of hearing regardless of the reasons the period would be 30 days from the date of the decree.
18. The learned Judges after considering various aspect of the proposition involved in that case came to the conclusion that Article 164 of the Act was relatable to rule 6 sub-rule (I) (a) and the first part of rule 13 of Or IX, which catered for situation where summons was not duly served and that Article 164 related to ex parte decrees passed under rule 6 (1) (a). On the first hearing and not to an ex parte decree passed on an adjourued date of hearing under Order XVII, rule 2. The notices which if required to be served under rules of natural justice and equity were not duly served, the case then would be governed by residuary Article 181 of the Act as the summons used in Article 164 governs the entire article. To arrive at such a conclusion the process of reasoning employed as listed in that judgment is, for the proper perception of the point involved, reproduced as :- "If Order IX, rule 13 applies to ex parte decree passed under clause (a) of rule t.) (1) thereof and also by reference to similar decree passed under Order XVII, rule 2 and if the Language used in Article 164 is relatable to rule 6 (1) (a) and first part of Order IX, rule 13, which caters for situation arising out of rule 6 (I) (a), i. e. When summons, was not duly served ; then it would be logical to assume that Article 164 relates to the ex parte decree passed under rule 6 (1) (a) on the first hearing and not to an ex parte decree passed en the adjourned bearing under Order XVII, rule 2. If a notice, which was required by natural justice or by law to be served on a defendant to afford him an opportunity for appearance on an adjourned hearing was not duly served on him then his case would not be governed by Article 164, because it would not be a case of first hearing for which 'summons' was to be issued. This interpretation of Article would also permit a judicious interactions of first and third columns thereof ; in that it, would govern only those applications 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 non-appearance 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 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."
19. We have given our deep thought to the point involved and have carefully examined the relevant provisions. With great respect, we are unable to agree with the process of reasoning and the way Article 164 of the Limitation Act has been construed in that case. Before listing our reasons for disagreement, we would first like to state that rule 6(1)(a) of Order IX of the Code of Civil Procedure Code as applicable in Azad Kashmir does not contain the part "and pass a decree without recording the evidence". That has been incorporated in rule 6(1)(a) by Law Reforms Ordinance, 1972 and is applicable to Pakistan only. From the careful perusal of the language employed in Article 4, it becomes obvious that the period of E limitation in application for setting aside ex parte decree is 30 days from the date of the decree and if summons was not duly served then 30 days from the knowledge of the decree so passed. It covers both, when the defendant, on account of his absence in answer to first summons is proceeded against ex parte followed by an ex parte decree and also when the decree has been passed under rule 2 of Order XVII of the Code at the adjourned date of hearing.
20. Interpretation of a statute or any of its provision is conducted with a view to ascertain the intention of the legislature when the language employed in it is ambiguous. But then it is to be done within a certain permissible limit. The purpose of it is to give clarity and remove the doubts F and not to cloth the provision with altogether different meanings, not conveyed by the language employed in the statute or in any of its relevant provision and stretch it to an extent where the Court is made to appear as assuming the role of legislature. Besides, such a construction would be, in our estimation, illogical and unreasonable for the reasons that a defendant who has no knowledge of an action against him because he was not duly served with the first summons, would have only 30 days from the knowledge but when informed and absented himself at the adjourned date would then be allowed a period of three years. Finding no substance in the argument on the point advanced on behalf of the appellant we, therefore, reject it. We have no doubt that article applicable in the instant case is 164 and not the residuary article.
21. We have examined the evidence in the present case. Even by placing liberal construction on the word 'summons' used in Article 164 the application for setting aside ex parte decree, on evidence is proved to have been filed beyond the period of 30 days even from the date of his knowledge of the decree.
22. Arguing next Raja Muhammad Siddique, the learned Advocate, submitted that after dismissal of appellant's application for setting aside the ex parte decree by the trial Court only one appeal was competent. Appellants appeal having been accepted by the District Judge no second appeal lay to the High Court. Since the respondents' appeal before the High Court was not permissible under law the impugned judgment having been passed without jurisdiction was, submitted the learned Advocate, void and of no legal consequence.
23. Controverting the arguments Mr. Muhammad Taj, the learned .Counsel for the respondent, contended that although only a revision petition and not the appeal was competent yet it was not a case of total lack of jurisdiction but only an error in the mode of its exercise. As, according to the learned Advocate, the High Court had revisional jurisdiction and could, although did not, decide the appeal treating it as revision petition it was, therefore, only an error in the procedure in deciding the case as an appeal whereas it should have been decided as a revision petition. Besides, he submitted that this point has never been taken by the appellant at any stage of the proceedings and in fact by his conduct it should be deemed to have been acquiesced by the appellant.
24. The question that now, therefore, falls for determination is as to what would be the legal effect of a judgment passed by the High Court in second appeal where no such appeal lay to it and only the revision petition was competent.
25. In Fazal Ellahi and 5 others v. Alam Din (1), the proposition came to be considered in the following circumstances ; Alam Din respondent in that case instituted a declaratory suit in the Court of Sub-Judge, Mirpur praying for permanent injunction against the appellants. The trial Court after granting a number of adjournments for filing written statements decreed the suit on 23rd September, 1974, under Order VIII, rule 10 of the Code of Civil Procedure, for the failure of the appellant to file the written statement. Against the judgment and decree of the trial Court, the appellant in that case, went in appeal before the District Judge who accepted the appeal and remanded the case back to the trial Court. Against this judgment of the District Judge Alam Din respondent preferred a second appeal before the High Court where the learned Single Judge after accepting the appeal restored the judgment and decree passed by the trial Court. It was against that background that an appeal was preferred before the Supreme Court. From among various objections taken by the appellant, the impugned judgment in that case was challenged by the appellant also on the ground that since only one appeal was permissible under law. Second appeal filed by the respondent in the High Court was not competent and the impugned judgment, according to the learned counsel for the appellant was passed by the High Court without any jurisdiction. While dealing with the proposition at page 105 of the judgment it was observed :- "From the observations contained in the above-referred authorities, the principle that emerges is that if the Court does not suffer from inherent want of jurisdiction but the procedure of the mode of hearing is defective of irregular and if in such a case a party joins issues and participates in the hearing without raising any objection about such a defect touching the jurisdiction, it cannot later on be allowed to turn round and challenge the jurisdiction of the Court when the case goes against it. But where there is a total lack of jurisdiction, no amount of consent or participation in the proceedings even without objection to jurisdiction, can invest the Court with the jurisdiction which it never had and consequently the question of waiver or estoppel would not arise. The decision of the Court in such a case will be a nullity in the eyes of law ; but not so when the Court had the initial jurisdiction but adopts a defective procedure or mode of hearing without any objection from the concerned party.
' In the light of the above-stated principle, we find the objection about the want of jurisdiction by the High Court as untenable. Because it was not a case of total want of jurisdiction in the High Court ab initio-the High Court had the revisional jurisdiction -but an irregularity in the procedure, as that application was heard as an appeal whereas it should have been heard as a revision petition. Since the appellants participated actively in the appeal before the High Court without any objection, now when the decision has gone
(I) P D 1979 SC (A J & K) 109 against them, they are estopped from challenging it on the basis of lack of jurisdiction."
26. The principle enunciated in the above-referred case in our view is a correct statement of law and has full application to the proposition under consideration in the instant case. The argument on the point having no force is, therefore, rejected.
' For the foregoing reasons we find no force in the appeal. It, therefore, stands dismissed. In view of the peculiar circumstances of this appeal. We however, make no order as to costs.