1. ' Iqbal petitioner is brother of Mst. Jainan respondent. Their father owned some land in Chak No,12/R.B Sheikhupura. He died some time back. He was survived by two sons, namely, Iqbal petitioner, Sardar since deceased, four daughters, Mst. Fateh Bibi, Mst. Bibi Mst. Sardaran and Mst.
2. Jainan respondent. Upon death of Umra, his land was distributed in favour of his surviving heirs in accordance with Islamic Law of inheritance by mutation No,754 sanctioned on 9-8-1960. Sardar soon followed his father and his share of the land was also mutated in the names of his sole surviving brother and four sisters. Thus, respondent Mst. Jainan owned 31 kanals, 8 marlas in the land held once by her father. By mutation No,1263 sanctioned on 9-2-1969, all the four sisters are shown to have donated their entire land received by them upon inheritance opening out on the respective deaths of their father and brother Sardar in favour of the petitioner. Later, four sisters together brought a Civil suit for annulment of gift by them and cancellation of the mutation which embodied it. Petitioner resisted the suit. On 22-2-1973, a stated out of Court compromise was reached between the parties and the suit was not proceeded with further and was dismissed as withdrawn from the trial Court.
3. ' Mst. Jainan again pressed her claim in the land and filed a suit against the petitioner in the civil Court at Sheikhupura on 4-1-1986. The suit was for the reliefs of declaration of rights and perpetual injunction. Upon having been served in the suit, petitioner entered appearance in Court and appointed an Advocate to conduct defence on his behalf. Written statement was filed in the Court and the suit was resisted upon variety of grounds. Petitioner also opposed the petition for grant of temporary injunction filed by the respondent. On 21-7-1986, prayer for interim injunction was not acceded and on the same day the trial Court seized of the trial of the suit settled as many as ten issues including that of relief and adjourned the proceedings to a future date for taking evidence from the parties. It may be observed that one of the issues covered the allegation of compromise arrived at in the earlier suit. It is at this stage that the petitioner disappeared and allowed the trial to proceed ex-parte against him. In this state, the Court received ex parte proof from the respondent and being satisfied of its truth decreed the suit ex parte in her favour on 16-2-1987.
4. Petitioner did not file an application under order IX rule 13 Civil P.C. For setting aside of the ex-parte decree. Instead, he chose the remedy in section 12 (2) Civil P.C. For recalling of the ex-parte decree on allegations of fraud based upon the pleas of non-service of summons in the suit and absence of any knowledge about the proceedings taken in it culminating in the ex parte decree. Petition was filed in the Court on 10-12-1987. Respondent opposed the petition. She submitted that petitioner was adequately served in the suit and had filed his defence also and thereafter had dissociated himself from the trial without any justifiable cause. The Court trying the petition framed issues given below:-
(1) Whether the application is not maintainable in its present form? OPR.
(2) Whether the petitioner was absent from the Court without any sufficient cause? OPR.
(3) Whether the decree dated 16-2-1987 is based upon fraud, misrepesentation and is not effective on the rights of the petitioner? OPR.
(4) Whether the respondent is entitled for special costs under section 35-A, C.P.C. OPR.
(5) Relief.
5. ' Parties gave evidence in support of the above issues. At the hearing, issues No,1 and 4 were not pressed by the respondent. They were decided accordingly. Under issues 2 and 3 which were taken up for discussion together, it was found that the petitioner was duly served in the suit and was represented at the trial by an Advocate appointed by him who also gave evidence against him on this score as RW-2. Consequent upon these conclusions, petition under section 12 (2) Civil P.C. Was dismissed by the trial Court on 3-3-1990. Petitioner went up in revision before learned District Judge, Sheikhupura but did not allow him to judge on merits of his case by withdrawing the civil revision from his Court. Strangely, another petition of the same nature and kind based upon similar allegations was again filed under section 12 (2) Civil P.C. For setting aside of the ex-parte decree dated 16-2-1987. This petition was dismissed on 29-5-1990 on the ground that it was not maintainable. Petitioner challenged this order in revision.
6. ' It was dismissed in limine by learned Additional district Judge, Sheikhupura, on 23-7-1990 by observing that a fresh petition under section 12 (2) Civil P.C. After the first of the kind had been dismissed on merits was not competent. Having failed in the collateral attack directed against the ex parte decree, petitioner now chose to assail it directly by filing an appeal against it on 2-9-1990.
7. Alongwith the appeal, an application under sections 5 and 14 of the Limitation Act,1908 seeking condonation of delay caused in proceedings taken under section 12 (2), Civil P.C. In good faith and bona-fide mistaken legal advice was put in. Those proceedings had finally ended on 23-7-1990, by dismissal of the second revision petition in limine by learned Additional District Judge. As for the time consumed thereafter, it is stated that the petitioner applied for certified copies which were supplied to him on 27-7-1990 and after due consultation with a legal expert, appeal was filed in the Court on 1-9-1990 upon its re-opening after long vacations. Thus the petitioner tried to explain the delay in filing the appeal upon taking benefit of the time lost in proceedings taken under section 12
(2) Civil P.C. Learned Judge below found against the petitioner and declined to extend the benefit of sections 5 and 14 of the Limitation Act to him. Learned Judge was of the view that proceedings were neither taken in good faith nor under hona-fide mistaken legal advice. At least, this was true, So he has said about the second petition under section 12 (2), Civil P.C.
8. ' First point falling for consideration, therefore, would be whether the benefit of time allowable under sections 5 and 14 of the Limitation Act is available to the petitioner for seeking condonation of delay in filing of the first appeal out of time. As has been observed in an earlier part of the judgment, petitioner did not file a petition for setting aside of the ex parte decree under Order IX, rule 13 Civil P.C. But took recourse for a remedy under section 12 (2) Civil P.C. Remedies for setting aside an ex- parte decree, are a petition under Order IX, rule 13, Civil P.C, a petition for review under section 114 read with order XLVII; an appeal under section 96 (2) Civil P.C. And a civil suit on the grounds of fraud and want of jurisdiction, a remedy now substituted for it in section 12 (2) Civil P.C. In some cases, inherent powers of the Court are also available for that purpose. Above remedies are concurrent, and, initially are not exclusive of each other till a decision is not given in either of them.
9. Where the only ground taken for setting aside the ex-parte decree is bare non-service of summons or alternatively 'sufficient cause' for want of appearance, when the suit was called on for hearing, an application under Order IX, rule 13 is the only appropriate remedy but where whole process in the suit from the start to the finish is attacked on the ground of fraud and incident of absence of service of summons is one of the indicia, in the direction of perpetrated fraud, an application under section 12 (2) Civil P.C, a remedy now provided in substitution of a regular suit shall make itself available, as found on the high authority of the Privy Council in Khagendra Nath Mahata versus Pran Nath Roy--XXIX Calcutta 395 P.C. Headnote in Atul Chandra Sarkar versus East Bengal Commercial Bank Ltd., and another AIR 1960 Cal. 309 reads:- "Mere non-service of summons is not enough to found a cause of action for setting aside a decree.
10. Where mere non-service is the complaint, the remedies available are (i) an application under 0. IX, R.13, (ii) an appeal from the ex parte decree and (iii) an application for review under 0. 47, r.1.
11. General allegations of fraud, however strong the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. The expression "suppression of summons" by itself does not amount to a sufficient averment of fraud. By itself it means little more than not serving it. Something more would be necessary; there would have to be an averment that there was collusion between the process server and the identifier or that there was a deliberate misleading of the process server or other similar allegations.
12. Order IX, rule 13 assumes the existence of a real suit between the parties and not a friendly bout between them intended to harm a third party's interests. In Rupchand Gupta versus Raghuvanshi (Private) Ltd. And another A.I.R 1964 S.C. 1889, it was observed that a civil suit was competent for setting aside of a collusive ex-parte decree. Collusion is defined in Wharton's Law Lexicon, 14th Edition, page 212 as "Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose". Though the term collusion as such is not one of the enumerated grounds in section 12 (2) o Civil P.C. For challenging the validity of a judgment, decree or an order of the Court, yet having regard to the true object behind the remedy in this sub-section, I think, a decree collusively obtained can also be challenged under section 12 (2) because taint of 'collusion' is equivalent to perpetration of fraud both on the Court and the affected party. The other view would clearly frustrate the intent behind the above amendment introduced in section 12 of Civil P.C. As far a remedy in appeal, section 96 (2) Civil P.C. Gave a clear right for an appeal against an original decree passed ex'parte. Indisputably, in an appeal from the ex-parte decree, it is open to the Court hearing the appeal to consider the propriety of an ex parte order and the merits of the ex parte decree also. See Messrs Fatima C Export Corporation and another versus Habib Bank Ltd.
13. 1983 SCMR 424. Review is limited to specified grounds only and is not as wide as other remedies.
14. Having said about the remedies and their scope, I shall now address myself to the question of limitation and condonation of delay in filing the appeal against the ex parte decree. There is no doubt that the appeal is filed out of time. The question is whether the time spent in prosecuting the remedies under section 12 (2) could be counted for the benefit of the petitioner and the delay caused in that behalf could or ought to have been condoned for hearing the appeal on merits.
15. Principle behind section 14 of the Limitation Act seems to be the protection against the bar of limitation in case of a person pursuing his case honestly and diligently but failing to succeed because of defect of jurisdiction in the Court or other cause of a like nature. The point is whether the petitioner qualifies that test and in my opinion, he does not. My reasons for holding so immediately follow. Ex parte decree was passed in favour of the respondent on 16-2-1987.
16. Application under section 12 (2) for setting aside of the ex-parte decree was instituted in first half of December, 1987. It was numbered as application No,111/6 of 1987, in the trial Court. It was dismissed on merits on 3-3-1990. A revision filed against it was later withdrawn. Copy of the order withdrawing the civil revision and the reasons for doing so are not available on record. Thereafter, a fresh petition under section 12(2) was again addressed to the trial Court. Copy of that application was not made part of the record. Therefore, its date of filing is not known. It too was dismissed on 31-5-1990 and revision filed against it failed on 23-7-1990. Instant appeal was then filed on 1-9-1990 in the Court below. It suffered from a serious time bar. As said above, application filed to challenge the ex parte decree on ground of fraud was dismissed on merits and a revision filed against it withdrawn by the petitioner. There was absolutely no justification for him to again put a similar petition and to claim benefit of time caused in its decision. In Shah Muhammad versus Ghulam and another PLD 1970 SC 196, benefit of sections 5 and 14 of the Limitation Act was not extended to cover a time period consumed in prosecuting an application under Order IX, rule 13 Civil P.C. While dealing with the applicability of section 14, it was observed:- "Under that provision of law time can only be excluded where proceedings have been prosecuted with due diligence in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. It is not disputed that in the present case the appellant was pursuing his remedy before a Court of competent jurisdiction. It was on his failure to get the necessary relief that he had filed an appeal against the ex parte decree passed against him."
17. ' As for application of section 5 of the Limitation Act, their Lordships observed: "The question, however, remains whether the appellant is entitled to the exclusion of the time which he took in pursuing his remedy under Order IX, rule 13, C.P.C. In our opinion, the appellant is not entitled to the exclusion of any such time. It will be seen that the appellant had two concurrent remedies open to him at the time when the ex parte decree was passed against him. He could file an application under Order IX, rule 13, C.P.C. He could also file an appeal again ex parte decree under section 96 of the Code of Civil Procedure. The appellant made his choice and filed an application under Order IX, rule 13, C.P.C. After failing in that application on merits he could fall back upon the remedy which was open to him at the time when the original decree was passed, if it was within time. Merely because by his own choice he did not file an appeal against the original decree, it cannot be said that there is sufficient cause within the meaning of section 5 of the Limitation Act for not filing the appeal within time. The appellant was not diligent. He could file an application under order IX, rule 13, C.P.C. And at the same time file an appeal against the original ex parte decree. This aspect of the question has been considered in several decisions of the Indian High Court in pre-Partition days and the consensus opinion is that where an application under Order IX, rule 13, C.P.C. For setting aside an ex parte decree failed on the merits, the time spent in prosecuting the proceedings cannot be deducted under section 5 for the proper time allowed for filing an appeal. Reference in this connection may be made to the cases of Ko Tha Lin Bwin and another v.
18. Ko Hla Kye and another AIR 1930 Rangoon 41, Rajendra Nath Kanrar v. Kamal Krishna Kundu Chowdhury AIR 1932 Cal. 558 and Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenaver AIR 1938 Born.
19. 459."
20. ' Any counsel with any sense of care for law and procedure could not and ought not to have given an advice for embarking upon such a course. It is not each and every advice which saves the time but it must be a bona-fide but mistaken legal advice. Element of bona-fide is clearly lacking in the case. If I may say so, second application under section 12 (2) after the first had been dismissed on merits was a clear example of a frivolous action started again to re-open the issues already concluded by a Court of competent jurisdiction. It is also settled that where an application or proceedings taken for setting aside of the ex-parte decree is rejected on merits, the appellate Court will clearly be precluded from questioning the propriety of the ex-parte order in an appeal against the ex-parte decree itself which otherwise it could have examined under section 105 Civil P.C. A clear analogy prevails in this case also. In the decision on the application under section 12 (2), the trial Court had explicitly found that the petitioner was served in the suit and had partly participated in it. This finding, amongst others, rested on the statement of Mohammad Khurshid, Advocate (RW-.2) who was the learned counsel appearing on behalf of the petitioner in the civil suit culminating in the ex-parte decree. The petitioner had an occasion to challenge the findings but he himself lost by withdrawing his revision. Reason for taking such a step is best known to him.
21. Therefore, it may not be a correct statement to urge that the petitioner was not served in the suit in which the ex parte decree was passed against him. Also, on merits, petitioner has no case.
22. Respondent denied donation 6f her land to him. She also repudiated the compromise ascribed to her. There is no sound material on record to suggest that she had filed a suit and compromised' it with the petitioner and surrendered her rights in the land in dispute in his favour. Therefore, both on merits and the time bar, petitioner is unable to succeed.
23. ' In view of the aforesaid, civil revision is without any merits in it. It is, accordingly, dismissed in limine. Revision