' In this revision petition order, dated 16-4-1988 passed by learned Additional District Judge, Lahore, accepting the appeal of the respondent against order, dated 26-11-1987, passed by learned Civil Judge, dismissing an application under Order IX, Rule 13, C.P.C., has been called in question.
2. The facts giving rise to this revision petition shortly stated are that the petitioner filed a suit for declaration that order for termination of his services was illegal. The suit was contested. The learned trial Court framed issues arising from the pleadings of the parties. The petitioner concluded his affirmative evidence and the case was fixed for 26-2-1983 for recording evidence of the respondent/defendant. On this date, a request for adjournment was made and the case was adjourned to 15-6-1983. On 15-6-1983 when the case was called nobody appeared on behalf of the respondent/defendant. The learned trial Court passed an order for taking ex parte proceedings against the respondent and proceeded to close its evidence. The case was adjourned to 20-6-1983 for hearing the arguments. On this date, the suit was decreed in favour of the petitioner.
' On 15-10-1983 the respondent filed an application under Order IX, Rule praying for setting aside ex parte judgment and decree, dated 20-6-1983. This application was contested by the petitioner by filing reply. The learned trial Court framed the following issues:--
(1) Whether there are sufficient grounds to set aside ex parte decree against the petitioner? O.PA.
(2) Whether the application is time-barred? O.P.R.
(3) Relief.
4. The respondent in support of the said application examined Rahim-ud-Din, Litigation Assistant as A.W.1, Muhammad Aslam son of Ashiq Ali U.D.C. Litigation Section D.S. Office Law as A.W.2. The present petitioner examined Jamshed Mohsin son of Mr. S.M. Mohsin, Advocate as R.W.1, Dilshad Ahmad, Carrier Clerk, Railway Headquarter Office Law Branch, Lahore as R.W.2 and petitioner examined himself as his own witness as R.W.3. The learned trial Court through order, dated 26-11- 1987 dismissed the application. It was held under issue No,1 that the respondent failed to prove the said issue therefore, it was answered against it. Issue No,2 was also answered against the respondent and in favour of the petitioner.
5. The respondent feeling aggrieved, filed appeal before the learned lower appellate Court who vide order, dated 16-4-1988 accepted the appeal. The findings of both the issues have been reversed and the application moved by respondent under Order IX, Rule 13, C.P.C. Accepted.
6. Learned counsel for the petitioner argued that the findings of the learned lower appellate Court that the witnesses of the respondent were not cross-examined about the factum of entrustment of case to Mr. S.M. Mohsin and his death, and observations that no suggestion was given that they had falsely deposed and that the case of non-appearance was fabricated one are based on misreading and non-consideration of evidence.
7. I have gone through the evidence of A.W.1 Rahim-ud-Din who stated that till 22-11-1982 Mian Ghulam Mustafa had been prosecuting the case and after the said date the case was fixed for 26- 2-1983. Mian Ghulam Mustafa was promoted as Litigation Officer (Land) and was posted in the Headquarter Office and this case was entrusted to Mr. S.M. Mohsin, Advocate who was to appear on 26-2-1983. It is in his statement that Mr. S.M. Mohsin, Advocate, died and the file of the case was received in the office of the respondent on 12-10-1983 from which it transpired that the case went unattended. According to his evidence the case was entrusted to the present counsel who made the said application under Order IX, Rule 13, C.P.C. In the cross-examination no suggestion was put to this witness that on 26-2-1963 Mian Ghulam Mustafa appeared in Court and that at that time he had not been promoted and posted in the Headquarter. No question was put to challenge the correctness of this statement that on 26-2-1983 no one on behalf of the respondent appeared in the Court and the case went unattended. The correctness of his assertion that after the death of Mr. S.M. Mohsin, Advocate the file of the case was received in the office of the respondent on 12-10- 1983, was also not questioned. These material facts deposed by A.W.1 in examination-inchief having not been challenged in the cross-examination therefore, his evidence according to well- established principle of law shall be deemed to have been accepted as correct. The petitioner examined Jamshad Mohsin as R.W.1 who is son of Mr. S.M. Mohsin, Advocate to prove that his father died on 20-1-1983 and files of the cases were returned to the Railway Headquarter immediately after Chaleeswa n when Railway officials took away all the files. Dilshad Ahmad, Carrier Clerk, Railway Headquarter was examined as R.W.2 by the petitioner to establish that he went to the house of S.M. Mohsin, Advocate after his death and brought back files of the cases on 12-3-1983. If this was the case of the petitioner, the same should have been put to Rahim-ud-Din whose evidence went unchallenged as observed above. Likewise, statement of Muhammad Aslam A.W.2 that file of the suit given to S.M. Mohsin, Advocate was received in the office on 12-10-1983 was not questioned in the cross-examination. The findings of the learned lower appellate Court that the witnesses of the respondent were not cross-examined on material facts deposed by them are not based on misreading or non-consideration of their evidence as argued by learned counsel for the petitioner.
8. Learned counsel for the petitioner argued that the statement of Rahimud-Din to the effect that on 26-2-1983 nobody on behalf of the respondent appeared in Court is falsified by the order of the Court recorded on that date from which it is manifest that counsel for both the parties were present on the said date when the case was adjourned to 15-6-1983. No doubt in the order, dated 26-2-1983 it has been recorded that counsel for the parties were present but their names have not been mentioned. The presumption of the correctness no doubt is attached to the judicial proceedings and the orders recorded therein but the same has been rebutted by the evidence of Rahim-ud-Din A.W.1.
9. The learned lower appellate Court while drawing inferences from failure of the appellant to question the correctness of facts deposed by witnesses of the respondent and in particular R.W.1 Rahim-ud-Din having material bearing upon the question in controversy has not been shown to have committed material irregularity and illegality justifying interference under section 115, C.P.C. By this Court. The finding recorded by the learned lower appellate Court having been based on consideration of evidence which has neither been misread, misconstrued cannot be substituted by this Court on reappraisal of evidence under section 115, C.P.C. Even if different view could possibly be taken.
10. Regarding issue No,2, learned counsel for the petitioner argued that since the decree passed by the learned trial Court fell within the purview of Order XVII, Rule 3, C.P.C., it was a decree on merits and being not ex parte decree, therefore, application under Order IX, Rule 13, C.P.C. Was not maintainable and the only remedy available to the respondent was either to file appeal or make an application for review if the case was covered by Order 47, C.P.C.
11. In order to appreciate the argument, I have gone through order, dated 15-6-1983 in order to ascertain as to what was the nature of that order on which depended the decision of question whether the learned trial Court in fact decided to take ex parte proceedings against the respondent or had proceeded to pass judgment and decree under Order XVII, Rule 3, C.P.C. This order shows that in view of non-appearance of the respondent the Court passed express order for taking ex parte proceedings against the respondent and also passed order for closing its evidence.
Under Order XVII, Rule 2, C.P.C. The Court was vested with a discretion either to proceed against the absentee defendant on adjourned date and pass order as envisaged by Order IX, C.P.C. Or to pass any other order which the Court in the circumstances of the case thought fit. The said other order could be an order under Order XVII, Rule 3, C.P.C. In the present case as observed above, the learned Trial Court appears to have adopted the first course and decided to proceed against the respondent ex parte and simultaneously order for closing its evidence was passed with intention to pass ex parte decree and it cannot be construed to be an independent order for proceeding against the respondent otherwise than as provided in Order IX, C.P.C. The decree passed in pursuance thereof, can safely be construed to be an ex parte decree for all purposes as such application under Order IX, Rule 13, C.P.C. Was very much maintainable. The findings of learned lower appellate Court on issue No,2 are also unexceptionable.
12. Learned counsel for the petitioner then argued that application was barred by time as under Article 164 of the Limitation Act, the period prescribed for making application for setting aside ex parte decree is 30 days. According to Article 164 of the Limitation Act, the starting point of limitation is the date of passing of ex parte decree and in case the summon was not duly served, when the applicant acquires knowledge of the decree. This Article is applicable only where defendant is proceeded against ex parte on his non-appearance in response to summons under Order IX, Rule 6, C.P.C.And not where he failed to appear on the adjourned date having already appeared in Court and contested the suit. It is well-established law that such a provision of law which has the effect of destroying the rights of a party has to be construed strictly and is to be applied only if the case falls within its scope strictly. In the present case, the defendant was proceeded against ex parte by virtue of provision of Order XVII, Rule 2, C.P.C. On a date to which the case was adjourned after the defendant had appeared in response to summons therefore, this Article was not applicable and the application made by the respondent for setting aside ex parte decree in these circumstances was governed by residuary Article 181 of the Limitation Act which prescribes a period of three years for making an application for which no period of limitation was provided elsewhere in the schedule attached to Limitation Act. In support of this view, learned counsel for respondent rightly relied upon case reported as Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v.
Industrial Development Bank of Pakistan PLD 1981 SC 21.
13. For the foregoing reasons, no case has been made out for interference under section 115, C.P.C.
As the learned lower appellate Court has not committed material irregularity and illegality in exercise of jurisdiction vested in it under the law in passing the impugned order which is otherwise also just and proper. The revision petition is accordingly dismissed with no order as to costs.