' MAMOON KAZI, J.---Respondent No,1 had filed a suit against the petitioner for permanent injunction. When the suit was proceeding in the Court of the learned Eighth Civil Judge, Karachi East, the petitioner did appear before the learned Judge after he had been served with the summons from the Court on 27-1-1986 but thereafter admittedly adjournments were sought by the petitioner for filing of a written statement by him. On 4-5-1986 the petitioner and his advocate remained absent when the case was called before the Court and the Court then passed the following order:-- "Plaintiffs advocate is present. Defendant as well as his advocate called absent without any intimation. Written statement is also not filed. Defendant is therefore made ex parte. Put off to 22-5- 1986 for ex parte proof.
2. The petitioner then filed an application under Order 9, rule 7, C.P.C. before the learned Judge which was dismissed vide order dated 7-8-1986. The relevant observations made in the order of the Court are reproduced as follows:-- "The contention of the learned counsel for defendant that the defendant is deaf and dumb and could not understand properly and that the written statement could not be made ready due to non-availability of certain documents, is not so relevant explanation for the previous 9 adjourned dates granted for filing written statement. The next contention that the defendant was present in the Court and his advocate also came some late, does not seem to be correct as is evident from the order dated 4-5-1986 and also from the above application which was moved after. 20 days with no explanation of this delay."
3. The petitioner being aggrieved by such order filed a revision, being Civil Revision No,37 of 1986 before the learned District Judge, Karachi East who vide his order, dated 16-12-1986 dismissed the revision, upholding the order passed by the learned Civil Judge. The reasons which weighed with the learned District Judge are as under:-- "I have considered the arguments and perused the record. I have also perused the R&P of the lower Court. I find that on 4-5-1986 neither the applicant nor Advocate were present hence ex parte orders were passed. Present application for setting aside ex parte orders was also filed after 20 days from the date of passing of order of ex parte. Limitation for filing application is 15 days. This application is supported by the affidavit of one Iqbal Hussain, but no power of attorney is produced. Reason assigned by applicant for not filing written statement is not plausible. This application under Order IX, rule 7, C.P.C. was filed beyond the limitation period. Advocate for the applicant as well as applicant were absent on 4-5-1986 even no application was made for time for filing written statement."
4. We have had the advantage of hearing only Mr. Zahid Marghoob, learned counsel for the petitioner as none has appeared on behalf of the respondents. The case diary further shows that the counsel for the respondents remained absent also on two dates of hearing in the case previously.
5. The main contention of Mr. Zahid Marghoob is that both the learned Courts below have erred in holding that the application filed by the petitioner under Order IX, rule 7, C.P.C. was barred by limitation as according to the learned counsel, no period of limitation is provided in the law for filing such application.
6. Perusal of the order passed by the learned Civil Judge dated 4-5-1986 clearly indicates that the said order was passed by him under Order VIII, rule 10 of C.P.C.. However, as is evident from the said order, the case against the petitioner was ordered to proceed ex parte. Order IX, rule 7 while referring to such ex parte orders provides: "7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.---Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs Or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
' It is thus clear that the learned Civil Judge was clearly empowered to recall the order, dated 4-5- 1986 passed in the case whereby the proceedings in the case were ordered to be ex parte against the petitioner. As has been pointed out earlier both the learned Courts below have held that the application filed by the petitioner under Order IX, rule 7, seeking to get the said order set aside was barred by limitation but no specific reference has been made to the provision of law under which such an application was barred. The contention of Mr. Zahid Marghoob in this regard is that no period of limitation has been provided for such an application. Reliance has been placed in this regard by the learned counsel on the case of Manzoor Ahmed Bhatti v. Road Transport Corporation, West Pakistan PLD 1973 Lah. 659 which no doubt supports the said contention. Although we find from the order passed by the learned Civil Judge dated 7-8-1986 that the application filed by the petitioner under Order IX, rule 7, C.P.C. was dismissed on some other grounds as well but it is difficult to determine which of the grounds weighed more with the learned Judge when passing the said order. However, there is no doubt that the question in regard to limitation raised in the order of the learned Civil Judge and the order passed by the learned District Judge was clearly of prime consideration. As we find ourselves in agreement with the contention raised by Mr. Zahid Marghoob that no period of limitation is provided under any law for making an application under Order IX, rule 7, C.P.C. by the defendant, in such a case only Article 181 of the Limitation Act would be applicable which provides for a period of three years for filing of such application. Since the application was filed by the petitioner 20 days after passing of the order, dated 4-5-1986 obviously the application was within time.
7. In the result, we accept this petition and hold that the orders passed by the learned Civil Judge and the learned District Judge dated 7-8 1986 and 6-12-1986 respectively are erroneous and not in conformity with the relevant provisions of law. The said orders are, therefore, quashed.