1. ' This is a revision against the order of the learned District Judge, Karachi dated 23-4-1984 and a very short point of limitation is involved in this case. But before examining that point some facts may be narrated for a proper appreciation of the point involved.
2. ' I. The respondent filed several suits, Suit No, 2101 of 1981 through which this present dispute originates being one of them for the recovery of Rs, 14,000 from the R. C. D. Electric Corporation which, according to the learned counsel appearing for the applicant, is the sole proprietary concern of the present applicant. Summons were issued and the case diary filed in this revision shows that on 15-8-1981 Mr. Firdous Ali Advocate filed power on behalf of the defendant and the case was adjourned to 21-9-1981 for filing mitten statement. On 21-9-1981 counsel for the parties were present. The defendant's Advocate filed application under section 148, C. P. C. Which was granted and the case was adjourned to 18-10-1981. On 18-10-1981 the counsel for the parties were present. The case was adjourned and put off to 3-11-1981. On 3-11-1981 the case was adjourned for 18-11-1981. On 18-11-1981 the case was again adjourned to 8-12-1981 and on 8-12-1981 it was again adjourned to 16-1-1982. It was again adjourned to 21-1-1981, and then to 17-2-1982 and then to 22-2- 1982. On 22-2-1982 it was again adjourned to 7-3-1982 and again adjourned to 30-3-1982, 26-4- 1982, 25.5-1982, 11-7-1982,17-8-1982, 12-9-1982, 11-10-1982, 30-101982. On 30-10-1982 the case was transferred to the Court of XXVIII Civil Judge and it was received in the transferee Court on 20-1- 1983. On 20.1-1983 the Advocate for the plaintiff was present and he waived notice, but neither the Advocate for defendant nor the defendant himself were present. A Court motion notice was ordered to be issued to the defendant and their Advocate for 20-2-1983. On 20-2-1983 only the plaintiff's Advocate was present, but none was present for the defendant and the case was adjourned to 28-3-1983 for C. M. (Court Motion notice). On 28-3-1983 both the parties were present and the case was adjourned to 24-4-1983. On 20-4-1983 it appears that the defendant's Advocate filed an application praying for permission for withdrawal from the case and unfortunately he was allowed to withdraw from the case perhaps without the compliance of the Rules requiring important formalities to be complied with before such a permission is granted. On 18-5-1983 when the case was called before the Court, Advocate for the plaintiff was present but none was present for the defendant and the case was adjourned to 2-6-1983 for written statement. It may be noted that admittedly the defendant was not directly served as ordered by the Court on 28-1-1983 and the Advocate was allowed to withdraw from the case vide order dated 24-4-1983. To resume the passage of the proceedings again the case was called on 2-6-1983. The defendant remained absent and the following order was passed :- "Case called. Advocate for the plaintiff is present. None present for the defendant. Written statement has not been filed. It is 2 p m. The case will proceed ex parte, judgment passed on separate sheet. Suit decreed in the sum of Rs, 14,000 with costs ex parte."
3. ' This is how this ex parte order was passed. The defendant moved an application under Order IX, rule 13 read with section 151, C. P. C. Through an Advocate Mr. Abdul Qadeer Channa and notice was issued for hearing of this application for 14-3-1984. This application was dismissed and thus the ex parte decree continued to hold the field.
2. Against this order dated 14-3.1984 dismissing the application for setting aside the ex parte decree the present applicant filed an appeal being Miscellaneous Appeal No, 99 of 1984. This appeal has been dismissed by the learned District Judge, Karachi by his order dated 23-4-1984 and the present revision has been filed against this order. The learned Judge has not examined any other point except the point of limitation and the point that falls for determination in this revision is whether the application praying for setting aside the ex parte decree was filed beyond limitation and has been rightly dismissed by the two Courts. In other words the question is whetl er the case would be governed by Article 164 of the Limitation Act which prescribes a period of 30 days for moving an application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree or Article 181 would apply. If Article 164 is applicable, as held by the two Courts, the application would be hopelessly time-barred and has been rightly dismissed. But on the other hand if Article 181 is applicable a period of three years.Would be available to the applicant for filing this application and it would be within time. Article 181 is as follows :- {{DATA MISS ARANGE}} "Application for which no Three When the right to period of limitation is pro- years apply accruec." vided elsewhere in this Schedule or by section 48 of the C. P. C. 1908 (V of 1908).
3. Mr. Mushtaq Hussain learned counsel for the applicant vehemently contended that in this case summons were issued, service was held good, the defendant entered appearance, the case proceeded from date to date, was adjourned on a number of hearings, was transferred from one Court to another, miscellaneons applications were moved and granted and thus the case has long passed the stage of Order IX, rule 6, C. P. C. Which may be reproduced below :- "Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then :-
(a) If it is proved that the summons was duly served, the Court may proceed ex parte and pass decree without recording evidence ;
(b) If it is not proved that the summons was duly served, the Court shall direct a second summon to be issued and served on the defendant."
4. ' The learned counsel contends that if the suit was decreed on account of none-appearance after service of the summons on the defendant, then an application under rule 13 of Order IX, C. P. C.
5. Would be the remedy available to the defendant attracting the provisions of Article 164 of the Limitation Act prescribing the period of 30 days for moving such an application. But in the present case, as stated above, summons were duly served and the defendant appeared and good progress was made till 2-6-1983 when the suit was decreed ex parte the defendant remaining absent. This order is surely not on account of non-appearance after service of summons which means the day of maiden appeal ance after service of summons.
6. Fortunately this controversy stands resolved by a judgment of the Supreme Court of Pakistan reported in the case of Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrtul Development Bank of Pakistan (1). I cannot do better than to quote the passage from the judgment to show that this case, not being a case of non-service of summons but of non-service of a notice of an adjourned hearing, would fall to be disposed of under Order XVII, rule 2 of C. P. C. And the relevant Article of Limitation Act would be 181 and not 164. Their Lordships of the Supreme Court, after a detailed discussion of Order IX and Order XVII, made the following concluding observations :- "If Order IX, rule 13 applies to ex parte decree passed under clause (a) of rule 6(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(1)(a), 1. e. When 'summons,
(1) PLD 1981 SC 21 was not duly served ; when 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 on the adjourned hearing 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 and it was not served on him, then his case duly 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 interaction 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) or 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 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."
7. This dictum of the Supreme Court has been followed in other judgments of the High Court 1983 CLC 126 and respectfully relying on this statement of law, I would also hold that the period of limitation for moving an application in the present case for setting aside the said ex parte decree was governed by B the three years rule of Article 181 of the Limitation Act and not by Article 164 of the Limitation Act as held by the two Courts below. In this view of the matter the application was clearly within time and ought to have been disposed of on merits.
8. Setting aside the order of the 1st appellate Court dated 23rd April, 1984 and that of trial Court dated 14-3.1984, I would remand tne case to the trial Court to dispose of the application for setting aside the ex parte decree on merits after notice to both parties. As this case has taken long time, I would direct the learned trial Court to dispose of the suit as expeditiously as possible. This order would govern and be filed in Revision Applications No, 153 of 1984, 154 of 1984 and 155 of 1984.