' This regular second appeal has arisen out of a suit brought by the respondents, Col. J.J.V.C.
Kaningham and others, against the appellant, Province of West Pakistan (now Province of the Punjab). The appellant was served for 6th April, 1965 but no one entered appearance on its behalf and was, therefore, proceeded against ex parte. The respondents examined two witnesses in support of their claim and the suit was fixed for 24th May, 1965, for their remaining evidence. On that date, however, none of the parties entered appearance and, therefore, the Senior Civil Judge, Sargodha, who was seized of the suit, dismissed it, under Order IX, Rule 3 of the Code of Civil Procedure. The respondents immediately made an application for restoration of the suit and the same was restored on 25th May, 1965. Ultimately, ex parte decree against the appellant was passed on 20th July, 1965. It was on 15th September, 1965, that the appellant made an application for setting aside the ex parte decree. Plea raised by the appellant was that the appellant came to know of the ex parte decree on 17th August, 1965, and then submitted the application for setting aside the ex parte decree on the said date. The application was opposed by the respondents whereupon following issues were framed:-
(1) Is the application within time? O.P.
(2) Whether there is sufficient reason for setting aside the ex parte decree? O.P.
' Both issues were decided against the appellant and the application dismissed. The appellant went in appeal before the District Judge, Sargodha, but in vain. Hence this second appeal.
2. On the first issue relating to limitation, view taken by the learned District Judge was that the application should have been filed within 30 days of the passing of the ex parte decree but since it was not made during that period, it was time-barred. In this connection, it was submitted by the learned counsel for the appellant that the above view of the learned District Judge was based on Article 164 of the First Schedule to the Limitation Act, 1908, but the present case was covered by Article 181 thereof which allowed a period of 3 years for making the said application. For this proposition, reliance was placed by him on Messrs Rehman Weaving Factory (Regd.), Bahawalnagar Vs. Industrial Development Bank of Pakistan PLD 1981 SC 21. In the cited case, it was held by the Supreme Court that if an ex parte decree is not passed under Order XI, rule 6 of A the Code of Civil Procedure, the period of limitation for making application for setting aside the decree would be covered by Article 181. As explained above, the decree under challenge was not passed under Order IX rule 6 of the Code of Civil Procedure. In view of the case under report, therefore, I hold that the appellant could make application for setting aside the ex parte decree within 3 years and since the application was filed by it within that period it was within time.
3. On the second issue, the only evidence produced by the appellant consists of the statement of one Munir Ahmad (P.W.1). It was deposed by him that summons issued in the suit for 6th April, 1965, was received by the Collector, Sargodha, but sanction for defending the suit was not received in time. The papers were also not complete. According to him, on 24th May, 1965 the Ahlmad of the learned trial Court told him that the suit had been dismissed in default and thereafter no fresh notice in the suit was received by the Collector. It was further stated by him that on 17th August, 1965 he came to know of the ex parte decree passed in the suit. His statement was discarded by the learned Senior Civil Judge for the following reasons:- "In his cross-examination he has stated that he does not hold a power of attorney from the Collector. The Collector has not given him any direction to prosecute suits. He does not know the name of the Ahlmad who told him on the 24-5-1965 that the suit had been dismissed in default.
This is the entire evidence produced by the applicant on this issue. I have gone through the proceedings in the suit. The applicant was served through the Collector Sargodha for the 6-4-1965.
On that date none appeared on behalf of the applicant. Ex parte proceedings were taken against it.
The suit was adjourned to the 29-4-1965 for ex parte evidence. On the last mentioned date the respondents examined 2 witnesses and sought adjournment for production of the remaining evidence. The suit was adjourned to the 24-5-1965. On the last mentioned date, none of the parties appeared. The suit was dismissed under Order 9 rule 3 of the CPC. The respondents made an application for restoration of the suit on the same date. It was restored on the 25-5-1965. As the suit had been dismissed under Order 9 rule 3 of the CPC, it was not necessary to issue a notice to the applicant. There was practically no gap between the dismissal of the suit and its restoration. It was dismissed on the 24-5-1965 at 12 noon. It was restored on the next day i.e. The 25-5-1965. The applicant was not entitled to notice. The witness examined by the applicant does not know the name of the Ahlmad from whom he understood that the suit had been dismissed in default. The witness did not hold a power of attorney from the Collector, Sargodha District. He has not shown me any paper through which he was appointed perokar by the Collector. The statement of P.W.1 Munawar Ahmad is, therefore, of no avail to the applicant."
' While upholding the order of the learned Senior Civil Judge, the learned District Judge said:- "4. The defendant produced one witness namely, Munawar Ahmad, Colony Clerk as P.W.1 who stated that on 24-5-65 he had come to know from the Ahlmad of the Court that the suit of the plaintiff had been dismissed in default. It appears to me that the statement of Munawar Ahmad that he had come to know from the Ahlmad of the Court that the suit had been dismissed on 24-5- 65 was concocted after the inspection of the file. When some one who inspected the file on behalf of the Government after the ex parte decree was passed came to know that the suit had once been dismissed in default on 24-6-65 and had been restored on the following day he coined this story in order to take up the plea that the defendant had remained under the impression that the suit had been dismissed and that a fresh notice will be issued to it if any application for restoration was made. I do not doubt that Munawar Ahmed did not contact the Ahlmad and this story is incorrect.
5. The quesion is whether it was necessary to issue notice to the defendant when the application for restoration of the suit under Order IX rule 4 was made. I consider that no such notice was necessary to be issued to the defendant because the order of ex parte proceedings had already been passed against the defendant. Moreover, in an application under Order IX rule 4 CPC, it is not at all necessary in law that a notice be issued to the defendant. Assuming that what Munawar Ahmad states is correct, it was the duty of the defendant to keep himself informed of the subsequent developments in the case. I agree with the learned trial Court that the application for the setting aside of the ex parte decree was beyond limitation and that there was no sufficient and reasonable ground for setting aside the ex parte decree."
5. In respect of the above reasoning of the learned lower Courts, it was submitted by learned counsel for the appellant that although the appellant was not entitled to notice of the application for restoration of the suit yet he was entitled to notice with regard to further proceedings in the suits after it had been restored. Learned counsel for the appellant did not cite any authority for the proposition put forth by him.
7. A perusal of sub-rule (2) of rule 9 of Order IX of the Code of Civil Procedure would show that if a suit is dismissed, in default, under rule 9 of Order IX, in the presence of the defendant, it cannot be restored without notice to the defendant, but there is no such provision in rule 4 of Order IX which relates to the restoration of the suit dismissed under rule 3 thereof in the absence of the parties. If it had been the intention of the makers of the rules that a suit dismissed under rule 3 should also not be restored without notice to the defendant, provisions like those of sub-rule (2) of rule 9 would have been made in rule 4; but this was not done. I cannot, therefore, read in rule 4 what has not been provided by the rule-making authority. Accordingly, I agree with the learned lower Courts that the appellant was not entitled to notice of application for restoration of the suit. Also, since the appellant was being proceeded against ex parte before the dismissal of the suit, the learned trial Court was not obliged to give the appellant a notice of the restoration of the suit which was ordered on the day immediately following the day on which the suit was dismissed in default. There was thus little interruption in the proceedings.
8. Learned lower Courts have given cogent reasons for not relying on the statement of Munir Ahmad, who was the only witness examined by the appellant. He is a petty official serving under the appellant and is, therefore, an interested witness. No other evidence was led by the appellant to show that it had sufficient cause for its failure to appear before the learned trial Court before the ex parte decree was passed. Order relating to rejection of the appellant's application for setting aside the ex parte decree is, therefore, not open to any legitimate exception.
9. Resultantly, this second appeal fails. It is, therefore, dismissed. Since the respondents have not come forward to resist the appeal, I make no order as to costs.