This Civil Revision calls in question an order, dated the 19th of March, 1985, of the learned Addl.
District Judge, Lahore, whereby the petitioner's application, dated 27th'of October; 1984, under Order XXXVII, rule 4, Order IX, rule 13 read with section 151, C.P.C., for setting aside an ex parte decree, dated the 24th of October, 1984, passed against him for recovery of Rs. 95,000 summarily under Order XXXVII, rule 2, C.P.C. Was dismissed.
2. There were many other points but it will be worth its while to consider a preliminary objection raised by the respondent to the maintainability of the revision petition on the ground of laches. The ex parte decree was passed on the 24th of October, 1984, but it was not straightaway appealed from and instead it was assailed by an application under Order XXXVII, rule 4, C.P.C. Which in turn was dismissed on the 19th of March, 1985. Obviously the further remedy had to be sought against the said order and the petitioner was expected to be very sure about it. What remedies he chose was explained by himself in his application under sections 5 and 14 of the Limitation Act (page 40).
Initially he filed F.A.O. No. 62 of 1985; later realizing that he was misadvised by counsel to file it, he got it converted into a Regular First Appeal whereon he paid a heavy court-fee of Rs. 7,126; still later noticing that even the R.F.A. Was not sustainable he withdrew it and instead filed the present revision petition on the 23rd of February,. 1986, evidently to impugn the order dated the 19th of March, 1985. He prayed for condonation of the laches mainly on the ground that each time he was wrongly advised by the counsel; that there was no intentional delay on his part; and that he was pre-occupied in prosecuting those remedies quite diligently without even a remote idea of losing time deliberately.
3. Ch. Mohammad Yaqoob Sidhoo, Advocate for the respondent seriously pleaded the bar of laches maintaining that wrong advice of a counsel was no ground for condoning the same and that, if at all, the remedy would be against the counsel for damages.
4. The point evoked a considerable debate. Qureshi Mohammad Hafeez, Advocate for the petitioner submitted mainly that the ex parte decree passed summarily against him being without his service of the summons was a nullity in law and that laches did not constitute a good ground to save it. He relied upon Muhammad Swalch etc. v. United Grain and Fodder Agencies (PLD 1964 S.C.97), Choudhqry Muhammad Anwar v. Sahibzada Mir Ghulam Hussain Khan of Talpur and another (PLD. 1969 Kar. 17), Mst. Majidan Khanum v. District Judge, Vehari (1984 CLC 3270) and Province of Baluchistan through Secretary, Govt. Of Baluchistan, Communication and Works Department, Ouetta, etc. v. Haji Muhammad Hassan etc. (1988 CLC 1583). Secondly, he stressed that wrong advice by counsel also helped him as the same negatived any conscious negligence or inaction on his part. Thirdly, he urged that the law encouraged remedy rather than stifle it on technicalities. He drew support from Manager, Jammu and Kashmir State Property in Pakistan v.
Khuda Yar and anon (P 1. D 1975 S.C. 678).
5. On the other hand, counsel for the respondent heavily relied up Khalid. Saigol v. National Investment Trust Ltd. Etc. (PLD 1985 SC 124), Mi Aizad Bakhsh v. Sheikh Muhammad Afzal (1985 SCMR 1003) and Nek Muhammad v. A.C. Jhelum etc. (1986 SCMR 1495), wherein consistently t latest rule propounded was that wrong advice of counsel was no reason condone delay and that the remedy would be against the counsel for his misadvice.
6. The dicta enunciated in the authorities cited on behalf of the respondent seems to give us the latest rule on the point. The old view that wrong advice of the counsel constituted good ground for condoning delay no more holds the field. The genesis was that by a party's neglect, the opposite side acquires an indefeasible, right of pleading bar of limitation, and that the same may not be condoned which may well amount to putting premium on somebody's mistake c were of vigilance.
It is true that lapse of prescribed limitation is not just the same as suffering laches, in case where no limitation was prescribed both in effect but had the same consequences. The view that laches may be condoned if there is n prejudice, caused to the opposite party does not appear to help the petitioner because a right to take up the plea of laches arises here in favour of the respondent and to deny him the same would be causing prejudice to his defence It was argued that for a Revision there was no prescribed limitation. I am afraid as held in the above Manager, Jammu and Kashmir State Property in Pakistan' case, a revision has to be filed within the unpreseribed period of ninety days. If I was beyond the said period, the delay had to be satisfactorily explained, and the counsel's wrong advice, as already noted, was no reason to condone it Consequently the revision petition is hit by laches.
7. The trumpted ground of nullity against the main decree also did not have much merit. The decree was said to be a nullity because, according to the petitioner, he was not served with the summons, nor was it affixed on his doorstead on account of his alleged refusal to accept it, nor was it supported by any attesting witness, nor was the affidavit of the process-server in accordance with the form laid down in Appendix B-11 attached to the C.P.C. Nor was he allow an opportunity to cross-examine the process-server as to how he traced him out at an address other than the one given in the plaint. Various authorities were relied upon to support each one of these points.
8. The stance of the respondent was that the so-called plea of nullity of the decree, for want of service of the process-server could not be taken up in the type of the application under Order XXXVII, rule 4, C.P.C. Inasmuch as it was just a routine excuse which may well be available under Order IX, rule 13 but in any event did not constitute "special circumstance" contemplated by Order XXXVII, rule 4. C.P.C. So as to set aside the decree passed under the summary procedure. He emphasized that the latter type of decree could be set aside only "under special circumstances' which by the very concept were quite different from the ordinary plea of want of service of the process. He referred to the petitioner's application at pages 14 to 16 which, to his reading, did not disclose any "special circumstances" to afford him the relief of setting aside a decree passed so solemnly against him earlier. Still further, he canvassed that rule 4 ibid did not stop at setting aside a decree alone but visualized further action of allowing the petitioner permission to defend the suit.
He added that in order to fulfil the second requirement, namely, of satisfying the Court to grant him permission to defend, the petitioner was under a duty to plead in the application something "reasonable" justifying the right to defend the suit. He again referred to the petitioner's application pointing 'out that nothing "reasonable" was taken- up therein to justify permission to defend the suit. Reliance in this behalf was placed by him on Allied Bank of Pakistan Ltd. v. V.C. Khilnani etc. (PLD 1984 Kar 127) and National Bank of Pakistan v. Messrs Home Aids Corporation etc. (PLD 1989 Lah.
213). In both these cases, it was propounded that "special circumstances" of rule 4 ibid. Meant something more than denial of service of the process.
9.In his application (pages 14 to 16), the only thing pleaded by the petitioner was that he "was never served with any summons in the titled suit" and that the decree was "obtained by the plaintiff in collusion with process-server by obtaining wrong report from him". Nothing else was stated much less of the type of "special circumstance". It was a ground quite squarely covered by Order IX, I rule 13, C.P.C., meant for setting aside ordinary ex parte decrees but not at all for those to which special procedure contained in Order XXXVII, rule 2 was applied. Still further, the application was supposed to have shown something "reasonable" to justify permission to defend the suit. Not a word in that behalf was said. It was an equally essential ingredient of the application and, therefore, its absence would as well be fatal. The summary procedure does not contemplate right to defend the suit as a matter of course. Something substantial has to be shown to achieve this right and correspondingly its absence would preclude the Court from tinkering with it. The two cases of Allied Bank of Pakistan Ltd. And National Bank of Pakistan lend unassailable strength to the argument advanced on behalf of the respondent. His objection prevails.
10. "Nullity' in relation to the decree was spelt out on the basis of non--observance of rules relating to the service of the process. It may be true that the process-server was not a meticulous observant of those rules as one would expect of him, but the fact remains that the petitioner did not assert that he was residing at an address other than the one where he was ultimately contacted by the process-server. The respondent explained in his reply at pages 21, 22 that initially the process-server called upon him at 72-G, Gulberg-Ill, Lahore, but the landlord told him that he had shifted to his present place of residence, namely, 96-G. Gulberg-III, Lahore, where he was shown to have refused to accept the process. Even on this premise, no "special circumstance" comes to light so as to call for interference with the decree.
11. As a result of the above discussion, the revision petition is dismissed leaving the parties to bear their own costs.