' ALLY MADAD SHAH, J.-- This High Court appeal, under the provisions of section 3 of the Law Reforms Ordinance, 1972 is directed against an order dated 31st March, 1979, of a learned Single Judge in Suit No.418 of 1975. Facts in the background may be summarised as under:
2. The respondent herein filed Suit No. 418 of 1975 on 23-9-1975 for specific performance of an agreement dated 4-7-1975 for sale to him of a plot of land bearing No.B-97, Block No.11, Federal 'B'
Area, Karachi. The appellants herein filed written statement on 2-12-1975. Simultaneously, two applications, one under section 149, C.P.C. for condonation of late payment of court-fee, and another injunction application under Order XXXIX, rules 1 and 2, C.P.C., were under process for hearing. During the course of proceedings of the suit, the matter was set down in Court on 4-9-1977 for settlement of issues. In the meantime, the two interlocutory applications referred to above were placed in Court for hearing on 28-8-1977. The application under section 149, C.P.C. was granted and two weeks time thenceforth was granted for payment of court-fee; and hearing of injunction application was adjourned to 18-9-1977. It so happened that the appellants/defendants did not appear in Court on 4-9-1977 for settlement of issues. The matter was adjourned to 7-9-1977. There was no appearance by the appellants even on this adjourned date of hearing. The learned Judge seized of the case decreed the suit ex parte for specific performance of the contract of sale subject to deposit in Court of the balance of the sale price within a month. The respondent filed execution application, a notice whereof was served on the appellants on 3-4-1978. They filed an application under Order IX, rule 13, C.P.C. on 4-4-1978, for setting aside the ex parte decree. A learned Single Judge, hearing the application, dismissed it by the impugned order dated 31-3-1979, which reads as under: "This is an application for setting aside the ex parte decree dated 7-9-1977. This application was filed on 4-4-1978 i.e. after the expiry of about 7 months but whereas the period of limitation is 30 days under Article 164 of the Limitation Act. In support of this application the learned counsel who was then appearing for the defendant has stated as follows: in para. 6 and 7 of the affidavit: "6. That the matter did not appear in the cause list of 18-9-1977 and I thought that the same must have been discharged.
7. That on 3-4-1978 I was served with an execution notice in Execu:ion No.6/1978 wherein it transpired that the above suit was c ecreed and the plaintiff has moved this Hon'ble Court for execu ion of the deed of sale by the Nazir. The said notice was serve I on me at about 11 a.m. and I immediately rushed to this position.
It ma r be observed that on 28-8-1977 the plaintiff was granted one n onths' time to pay the court- fee and that the case was adjouned to 18-9-1977 for hearing of MA 1932-75. It appear that he plaintiff paid the court-fee before the above date and the matter was fixed for issues on 4-9-1977 in Court. However, the case was adjourned to 7-9-1977. The defendant has not shown any sufficient cause as to why he did not appear either on 5-9-1977 or 7-9-1977 when the above case was listed in the daily cause list. Be that as it may, the question which requires consideration is as to whether the present application is competent and is not hit by Article 164. The explanation given by the learned counsel for the defendant in the above two paras. mentioned above is not sufficient to bring out this case from the purview of Article 164. It was the duty of the learned counsel for the defendant to find out as to why the case was not listed on 18-9-1977, as was ordered by this Court in his presence. No explanation has been given. The application has been filed after the expiry of about 7 months. It is an admitted position that S.5 of the Limitation Act is not applicable to an application under Order IX, rule 13, C.P.C. This Court could exercise the power under its inherent jurisdiction provided there was some mistake on the part of the office of this Court which in my view is lacking in the present case. I, therefore, dismiss the application as time-barred,"
3. The learned counsel for the appellant has urged that the matter was set down in Court on 28-8- 1977 when the plaintiff/respondent was allowed two weeks time for payment of court-fee, and hearing of injunction application was adjourned to 18-9-1977, and the matter was, according to him, surreptitiously placed in Court for settlement of issues on 4-9-1977. He has contended that the appellants/defendants did not have notice of this date of hearing as well as that of the next date of hearing viz. 7-9-1977, when ex parte decree was passed. He has put forth the plea that the period of limitation in such circumstances started running from the day the appellants became aware of the ex parte decree, which was 3rd April, 1978 when notice of execution application was served upon them, and the application under 0. IX, rule 13, C.P.C. for setting aside ex parte decree was filed on the following day viz. 4-4-1978 and was within time. He has advanced alternative argument that the matter is not governed by Article 164 of the Limitation Act as held by the learned Single Judge but Article 181 of the Limitation Act, prescribing period of 3 years, would apply and the application under Order IX, rule 13, C.P.C. was well within time limit in all circumstances. He has plaed reliance on cases reported in PLD 1981 SC 21 and PLD 1970 Kar.
295.
4. On the other hand, the learned counsel for the respondent has contended that the matter was set down for settlement of issues on 4-9-1977 in normal course, and it was enlisted in the cause list for the day and the parties to the suit did have sufficient notice of the date of hearing and yet there was no appearance by or on behalf of the appellants. He has pointed out that the learned Judge hearing the matter adopted abundant precaution and adjourned the hearing to 7-9-1977 to provide a chance to the absenting party to contest the suit. According to him, the matter was enlisted in the cause list for that day as well and yet there was no appearance from the appellants' side and the suit had to be decreed ex parte. As regards the question of limitation in making the application under Order IX, rule 13, C.P.C. he has contended that the matter falls within the ambit of Article 164 of the Limitation Act, which prescribes period of 30 days from the date of decree for making an application for setting aside an ex parte decree, and the application filed after seven months was time-barred. He has urged that delay in making the application could not be justified in any case as the appellants could have known the passing of ex parte decree, latest by 18-9-1977, which was the date of hearing of injunction application. According to him, Article 181 of the Limitation Act is not attracted on the facts of the case. He has cited PLD 1952 Lah. 456; and PLD 1962 Dacca 60 as the supporting authorities.
5. It is evident from the impugned order, reproduced above, that the application under Order IX, rule 13, C.P.C. was dismissed only on the ground that it was time barred. The learned Single Judge held that the application was governed by Article 164 of the Limitation Act and it, having been filed after the expiry of about 7 months, was tim barred. Article 164 of the Limitation Act prescribes period of 30 days, for making an application for setting aside ex parte decree, from the date of the decree in case summons of the suit has been served on the defendant, and, in any other case, from the date of the knowledge of the ex parte decree. A question, therefore, arises whether the period of limitation for making the application under Order IX, rule 13, C.P.C. commenced from the date of the decree or from any subsequent day and whether article 164 is attracted. The applicability of Article 164 of the Limitation Act has been considered hitherto before by the superior Courts in number of cases. Its applicability and scope were extensively considered by the Honourable Supreme Court in Civil Appeals No. 143 of 1978 and 134 of 1978 viz. Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and Messers Rehman Weaving Factory (Regd), Bahawalnagar v. Punjab Small Industries Corporation, Lahore, reported in PLD 1981 SC 21, and several decisions thereon by various superior Courts in Indo- Pakistan sub-continent were reviewed in great detail and it was held that Article 164 of the Limitation Act applies only in the case of ex parte decree passed under the provisions of Order IX, rule 6(1) (a) of the C.P.C. and the other cases of ex parte decree, particularly those passed under the provisions of Order XVII, rule 2, C.P.C. would be governed by Article 181 of the Limitation Act, which prescribes period of Limitation for 3 years. It would be worthwhile to reproduce the most important passage from the enlightening judgment in the said appeals. It reads as under:-- " 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), i.e. when 'summons' 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 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 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) 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 and limitation would commence from the date of 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 ' The next question arises as to what would be the period of limitation for an application for setting aside an ex parte decree, not covered by Article 164. That application may or may not be under section 151. It could still be under the second part of rule 13 of Order IX, though in some cases section 151 might also apply. When defendant makes an application under Order IX, rule 13 in connection with an ex parte decree, which is not passed under rule 6 of Order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of "null and void order" on the question of limitation; is simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181, and the period of limitation would be three years from the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the exercise of rationalisation, in the light of experience gained during three quarters of century."
(The underlined expressions seem to be printing slips.)
6. Of course, different view was adopted in the cases, Kamaluddin v. Malik Muhammad Bashir and others PLD 1952 Lah. 456 followed in the case Netai Sikari and others v. Sashi Bhusan Biswas and others PLD 1962 Dacca 60 relied upon by the learned counsel for the respondent that once summons of the suit was duly served on the defendant and the ex parte decree was passed against him on an adjourned date of hearing, the application under Order IX, rule 13, C.P.C. for setting aside the ex parte decree would be governed by Article 164 of the Limitation Act. Both these cases were referred to alongwith many other cases, on the same point by the Hon'ble Supreme Court in the aforesaid cases reported in PLD 1981 SC 21 and the rule reproduced above was laid down that Article 164 of the Limitation Act would apply only in the case of ex parte decree passed under rule 6 (1)(a) of Order IX of the Code of Civil Procedure and not in the case of an ex parte decree passed on the adjourned date of hearing under Order XVII, rule 2, C.P.C. Under rule 6(1)(a) of Order IX of the Code of Civil Procedure, it is provided that the Court may pass ex parte decree if the defendant does not appear when the suit is called on for hearing provided it is proved that the summons was duly served on the defendant, whereas Order XVII, rule 2 of the Code of Civil Procedure provides that where on a day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes, directed in that behalf by Order IX or make such other order as it thinks fit. In the instant case, the appellants/defendants did appear in Court on the hearing they were served for with the summons of the suit and the ex parte decree was passed against them on an adjourned date of hearing. In the light of the distinction magnified by the Hon'ble Supreme Court in the aforesaid case between the ex parte decree passed under the provisions of rule 6(1)(a) and that passed under the provisions of rule 2 of Order XVII of the Code of Civil Procedure, the instant case would be governed by Article 181 of the Limitation Act.
7. For the reasons recorded above, we allow the appeal and set aside the impugned order, dated 31-3-1979. In consequences thereof, the application under Order IX, rule 13, C.P.C. shall be placed, in accordance with roster of settings, for its hearing and decision on merits. In view of the question of law involved in the case, no order is made for costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.