This Constitutional petition assails the order dated 8-10-1986 passed by Malik Mushtaq Ahmad, Additional District Judge, Lahore, whereby while accepting the revision petition of respondent No.l, he dismissed the application for setting aside ex parte decree filed by the petitioner.
2. The facts necessary for the disposal of this petition are that on 21st of February, 1977, Mst. Chiragh Bibi respondent No.l, filed a suit for possession through specific performance of an agreement to sell against Jalal Din, the predecessor of the petitioners, who contested it by filing a written statement. During the pendency of the suit, Jalal Din died on 13th of November, 1978 leaving behind him the petitioners as his legal heirs. No effort was made to bring his legal representatives on record but on 3rd January, 1979, he was proceeded against ex parte and a decree was passed against him as no one appeared on his behalf.
3. Mst. Chiragh Bibi, respondent No.l, applied for execution of the decree along with which an application for impleading the legal representatives of the deceased judgment debtor was filed.
The executing Court issued notices to the legal representatives of Jalal Din deceased.
4.The petitioners allege that they learnt of the ex parte decree for the first time on 15th of October, 1979 through these notices and immediately thereafter filed an application for setting aside the ex parte decree which was accompanied by an application for condonation of delay under section 5 of the Limitation Act, 1908. This application was resisted by the respondent but was allowed by the trial Court on 28th of April, 1986.
5. The respondent Mst. Chiragh Bibi went in revision before the Additional District Judge, who while accepting it dismissed the application for setting aside the ex parte decree filed by the petitioners mainly on the ground that it was barred by time. The petitioners have challenged this order of the Additional District Judge by filing the Constitution petition.
6.As already observed, the suit was originally contested by Jalal Din defendant, but after his death, he was proceeded against ex parte on 3-1-1979 and a decree was passed. The Additional District Judge held the application filed by the petitioners as barred by time on the basis that it was governed by Article 164 of the Limitation Act which prescribed a period of 30 days for filing such an application. This view, however, proceeds on misconception of the true legal position. As held by the Supreme Court in Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21 Article 164 applies only where an ex parte decree is passed against the defendant on account of his failure to appear on the date specified in the summons despite service. If, however, the defendant having once appeared, absents .Himself on E any subsequent date and an ex parte decree is passed against him, the application for setting it aside will fall not under Article 164 but under the Article 181 which prescribed a period of three years.
In this view of the matter the dismissal of the application for setting aside ex parte decree by the Additional District Judge on the ground of limitation is, not sustainable.
7.There is another important aspect of the case which appears to have been ignored by the Additional District Judge while accepting the revision filed by the respondent. Jalal Din, the defendant, in the suit, died on 13th of November, 1978 while the ex parte proceedings were taken against him and the decree was passed on account of his non-appearance on 3-1-1979. Order XXII, rule 4, C.P.C. As amended by the Law Reforms Ordinance, 1972, permits a Court to proceed with the suit notwithstanding the death of a defendant, in the same manner, as if he was alive. This power is, however, circumscribed by the condition that no application for bringing his legal representatives is made within the time limited by law. According to Article 177 of the Limitation Act, the period of filing such an application is 90 days from the date of his death. Before the expiry of the period of 90 days prescribed under Article 177, the Court cannot proceed with the suit in terms of Order XXII rule 4 C.P.C. This full( period of 90 days must be made available to the legal representatives of the deceased to come forward and make an application. It is only when, they fail to do so, that, the proceedings can be taken notwithstanding the death of the defendant. This provision is in the nature of an exception to the general law under which no proceedings can be held against a dead person and is, therefore, to be strictly construed. The jurisdiction given to the Court under Order XXII rule 4 C.P.C. Is subject to the conditions laid therein which must be strictly fulfilled and failure to do so would vitiate the proceedings. In Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others PLD 1971 SC 61 it was observed that as a general rule the Statutes which enable persons to take legal proceedings under specified circumstances demand that those circumstances must be accurately obeyed. Crawford in his book "Statutory Construction" 1940 Edition at page 533, has thus stated the law:- "Similarly if the Court's jurisdiction is dependent upon the existence of certain facts or conditions, their existence is a condition precedent to the jurisdiction of the tribunal and cannot be dispensed with; for the Court clearly cannot dispense with what the Legislature has made the foundation of its jurisdiction or right to act."
Similarly in 'Craies on Statute Law' 7th Edition at page 266, the following statement appears:- "As a general rule, the Statutes which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact that their provisions may be expressed in merely affirmative language: "Applying the above principles, it becomes abundantly clear the proceedings against a dead defendant can take place only if the mandatory condition regarding no application having been made is satisfied. No proceedings can be taken by the Court against a dead defendant -before the expiry of 90 days.
8.In the present case, Jalal Din defendant died on 13th of. November, 1978 while the ex parte decree was passed on 3-1-1979 C before the expiry of the period prescribed in Article 177. The entire proceedings taken and the decree passed by trial Court were void and of no effect.
In view of the above, this writ petition is accepted, the order dated 8-10-198 passed by respondent No.2 is declared to be without lawful authority and of no legal effect and that of the trial Court dated 28-4-1986 is restored. The learned counsel for the respondent states that the suit was filed as far back as 21st of February, 1977 i.e. About 12 years back. It is also stated by the learned counsel that the evidence of the plaintiff had already been recorded and only defendants' evidence remains. In this view of the matter, the trial Court is directed to dispose of the suit within three months, if necessary by holding day-to-day proceedings. The compliance of this order shall be reported to this Court. The parties shall appear before the District Judge, Lahore, on 11th February, 1989 who shall entrust the suit to a Court of competent jurisdiction. No order as to costs.