' The brief facts of the case are that the respondents had instituted a suit for permanent injunction and recovery of Rs,22,40,000 against the appellants in the Court of Civil Judge, 1st Class, Abbottabad. The appellants were summoned and, of them, appellants Nos. 3 and 4 alongwith one Anwar Khan were served personally but they failed to appear in the Court and accordingly proceeded against ex parte by the Civil Judge, vide his Order No, 4 dated 17-94989. However, it was directed that appellants Nos. 1 and 2 should be served afresh. A perusal of the order sheet No, 7 dated 11-1-1990 would show that Muhammad Nawaz, Sub-Engineer C. & W. Highway Abbottabad appeared on behalf of defendants Nos. 1 to 4 and requested for the adjournment of the case on the ground that he be permitted to produce a letter of authority from the appellants Nos. 1 to 4. The case was accordingly adjourned. On the next date of hearing i,e, 8-2-1990 nobody appeared on behalf of appellants Nos. 1 to 4 and, therefore, they were proceeded against ex parte. The case was, however, adjourned to 14-3-90 for the service of defendant No, 5, On 14-3-1990 defendant No, 5 was also served and as he failed to appear, he was also proceeded against ex parte.
2. It may be noted that the learned Civil Judge instead of passing an ex parte decree as prayed for against the defendants, though already proceeded ex parte, adjourned the case to 28-3-1990 with the direction to file a list of witnesses within seven days and needful was done on 28-3-1990. The case was consequently adjourned to 23-4-1990 for recording ex parte evidence on which date the Patwari Halqa could not be served and the proceedings were deferred to 12-5-1990 for the above purpose. Non-appearance of the Patwari resulted in yet another adjournment to secure his attendance. At long last, the statement of the Patwari Halqa was recorded on 27-1-91. In the meantime Ghulam Jan, plaintiff No, 2 died and accordingly an application for bringing his legal heirs was allowed and the plaintiffs' counsel was directed to obtain proper Wakalatnama from the legal heirs of deceased plaintiff No,
2. On 12-2-1991 the plaintiffs' counsel produced Wakalatnama on behalf of the legal heirs of plaintiff No, 2 and instead of recording the, remaining ex parte evidence of the plaintiffs the Civil Judge passed the following orders:--
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4. The case was adjourned many a time for the service of defendants and on 19-6-1991 Aurangzeb, Sub-Engineer appeared on behalf of apellants/defendants Nos. 1 to 4 but due to non-appearance of defendant No,5, a fresh summons was issued. Aurangzeb Sub-Engineer was directed to produce letter of authority on behalf of apellants/defendants Nos. 1 to 4. The case was then adjourned for several times and it was on 3-12-1991 that defendant No, 5 was served through advertisement and since nobody was present on behalf of appellants/defendants Nos. 1 to 4, consequently they were placed ex parte once again. The case was adjourned for recording ex parte evidence. Finally the required ex parte evidence was recorded on 20-2-1992 and the case was adjourned to 1-3-1992 for hearing an ex parte arguments of the plaintiffs/respondents and the case was adjourned for order to 2-3-1992. Instead of passing an ex parte decree the Civil Judge passed the following order:- "Present as before. Ex parte arguments heard. File perused. In view of the report filed by the Revenue authorities before D.C., Abbottabad placed on the file as Exh. P.W. 2/2 and Exh. P.W. 2/6, the appointment of a Commissioner is necessary to inspect the suit property and to assess the actual loss sustained by the plaintiff as a result of widening of the road by the defendants. The local commissioner is directed to conduct his proceedings in the presence of the parties and to submit his: detailed report alongwith the site plan showing the exact loss and damage sustained by the plaintiff as a result of the widening of the road by the defendant. He is also directed to submit detailed report as to whether any trees were cut down by the defendant during the widening of the road by the defendants. In short the Commissioner is to submit his detailed report regarding the total loss sustained by the plaintiff as a result of the widening of the road by the defendant.
' Mr. Abdur Razaq, Advocate is appointed as local Commissioner. Fee of the local Commissioner is fixed as Rs,600 which is to be deposited by the plaintiffs within three days. File to come up for the report of the Commissioner in the light of observation referred to as above on 22-3-1992."
4. From 22-3-1992 to 24-5-1992 the report of the Commissioner could not be submitted for one reason or the other. However, it was on 31-5-1992 that Mr. Abdur Razaq, Advocate local Commissioner submitted his report, consisting of 26 pages. The case was then adjourned for filing the objections, if any, on the report of the Commissioner. On 7-6-1992 the report of the Commissioner was not objected to by the learned counsel for the plaintiffs and accordingly the case was adjourned for ex parte arguments to 21-6-1992. On this date the ex parte arguments were heard and the case was adjourned for order to 22-6-1992, on which date the Civil Judge granted the respondents/plaintiffs an ex parte decree for the recovery of Rs,11,20,000 against the appellants, leaving the parties to bear their own costs.
5. Appellant/defendant No, 4 submitted an application on 2-12-1992 for setting aside the ex parte decree passed on 22-6-1992. This application was, however, contested by the respondents who filed their replication on 12-12-1992 and the case was adjourned for hearing arguments on 6-1-1993.
Likewise defendants/appellants Nos. 1 to 3 also submitted application on 30-1-1993 for setting aside the aforesaid ex parte decree. Replication was filed on behalf of the respondents/plaintiffs on 3-4- 1993. On a consideration of the arguments addressed on behalf of both the parties on 22-4-1993, the learned Civil Judge by his order dated 16-5-1993 rejected the applications for setting aside of the ex parte decree filed by appellants/respondents 1 to 4 leaving the parties to bear their own costs.
6. The vires and legality of the order passed by Civil Judge, Abbottabad dated 16-5-1993 has been challenged by the appellants through this F.A.O. No,10 of 1993.
7. Mr. Muhammad Aslam Khan, Assistant Advocate-General for the appellants and Mr. Tariq Khan, Advocate learned counsel for the respondents present and heard. Record of the case has been perused.
8. To assail the impugned order, the learned counsel for the appellants has tabled the following points for our consideration:--
(a) that the Government of N.-W.F.P.. Through Secretary, C & W was not served in accordance with the mandatory provisions of the Code, of Civil Procedure and the learned lower Court committed an illegality by holding that defendant/appellant No, 1 had been rightly served through registered post A.D.;
(b) that the learned lower Court had erred at law in holding that the Sub-Engineer of the C & W Department was authorised to appear on behalf of the appellants-defendants 2 to 4;
(c) that the learned lower Court was not well within its right by holding that the applications submitted by the appellants/defendants 1 to 4 were barred by time because in the present case the appellants/defendants could apply for setting aside the ex parte decree within a period of 3 years under Article 181 of the Limitation Act, 1908 (Act IX of 1908) from the date when the right to set aside the ex parte decree accrued to them.
9. On the other hand, the learned counsel for the respondents/plaintiffs submitted that the stand/stance taken-up on behalf of the appellants/defendants was not correct in as much as they had been served, in accordance with law and that they were properly represented by Muhammad Nawaz, Sub-Engineer, C & W., Highway Department, Abbottabad on 11-1-1990 and thereafter by Aurangzeb, Sub-Engineer on 19-6-1991. However, in the event of their failure to appear in Court and join the proceeding, at a later stage, the lower Court had correctly initiated ex parte proceedings against them. He also drew out our attention to Local Commissioner's report dated 31-5-1992 which clearly shows/reveals without doubt that a representative of defendants Nos. 3 and 4 had appeared before him on 18-4-1992 and had obtained, at his own request, two adjournments, one on that date and other on 11-5-1992. In view of the direct knowledge of the suit in question (i,e, litigation) and active participation therein, as mentioned above, it does not lie in the mouth of these appellants to say that they had no knowledge about the institution of the suit and that they were never served. Without knowledge of the suit in question or proper service of summonses issued in connection with the said suit how could the two Sub-Engineers of the C & W Department put in appearance in the Court, as their representatives, in the initial stages of the suit and proceedings before the local commissioner. Besides they were fully in the know of the ex parte decree passed against them.
10. This being the correct position, the case is governed by Article 164 and not by Article 181 of the Limitation Act, 1908. The applications, one dated 2-12-1992 and the other dated 30-1-1993, moved by the appellants/ defendants 1 to 3, for setting aside ex parte/impugned decree being much A beyond 30 days (as required by Article 164 of the Limitation Act, 1908) are hopelessly barred by time and therefore, cannot be entertained. This is the crux of the arguments of the respondents/plaintiffs.
11. A perusal of the relevant record would reveal the factual position and that is that appellants/defendants Nos. 1 to 4 despite personal service had failed to appear on the date fixed for hearing and thus were proceeded against ex parte on 8-2-1990. Defendant No, 5 was, however, placed ex parte on 14-3-1990. They failed to take advantage/benefit of Rule 7, Order IX, C.P.C. Which is reproduced hereunder for the sake of 1 convenience:-- "7. 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."
12. Notwithstanding, the Civil Judge adjourned the case to a future day on which ex parte evidence was partially recorded. In the meantime plaintiff No, 2 died and his legal representatives were brought on record. Thereafter, once again, fresh summonses were issued in the names of appellants/defendants. Appellants/defendants Nos. 1 and 2 were personally served on 15-4-1991 and so were the others. As result of this step, enabling them to join/participate in the proceedings, they were duly represented by Mr. Aurangzeb sub-Engineer on 19-6-1991. He was directed to produce letter of authority on their behalf. In consequence thereof, the Sub-Engineer appeared regularly on several dates of hearing such as 14-7-1991, 2-9-1991, 1-10-1991, 30-10-1991 and 20-11- 1991 on behalf of appellants/defendants. It is significant to note that on 3-12-1991 neither any of the appellants nor the aforesaid Sub-Engineer appeared in Court with the result that the appellants were proceeded against ex parte on that date i,e,, a date fixed for hearing. On that day, some evidence was recorded as produced by the respondents/plaintiffs. Instead of basing a decree on such evidence, the learned Civil Judge, by way of abundant caution, appointed Mr. Abdur Razaq, Advocate as Local Commissioner on 2-3-1992 for assessing the real damage/actual loss sustained by the respondent/plaintiff due to the widening of road by the appellants/defendants.
13. The above-named Local Commissioner, in connection with the task assigned to him, summoned the appellants/defendants to appear before him so as to enable him to prepare the required estimate with the help/aid/skill and expert knowledge of the appellants/defendants. In this context, it will not be out of place to mention here that, Mr. Aurangzeb, Sub-Engineer C. & W.
Department turned up, on behalf of defendants/appellants, on 18-4-1992. On his request the proceedings were adjourned to 11-5-1992. On 11-5-1992 he pressed for another adjournment but this time the Local Commissioner did not oblige him. Thereafter, he himself and all appellants/defendants neither appeared before the Local Commissioner nor did they appear in the Court, either personally or through representatives/agents/lawyers.
14. The Commissioner's report was received in Court on 31-5-1992 without any objection from either side. Acting on this unchallenged report of the Commissioner, the learned Civil Judge passed an ex parte decree for the recovery of Rs,11,20,000 in favour of the plaintiffs/respondents and against the defendants/appellants, on 22-6-1992, in respect of the loss/damage sustained by them due to the wrongful acts of appellants/defendants.
15. Dissatisfied by the ex parte decree, appellant/defendant No, 4 filed an application for vacation of such decree, in the first instance, on 2-12-1992. Defendants/appellants Nos. 1 to 3, however, for the same purpose, simply submitted an application on 30-1-1993 for their joinder to application dated 2-12-1992, through one and the same lawyer.
16. Both these applications were resisted by the respondent/plaintiff on variety of grounds, both factual as well as legal. They stated that these were time-barred, mala tide and legally not tenable by reason of estoppel. Both the applications were, therefore, rejected by the Civil Judge on 16-5- 1993. Hence this appeal.
17. We have had the advantage of hearing the learned counsel on both sides and have gone through the record of the case very carefully. It is needless to mention here that when an ex parte decree is passed against a defendant, he has more than one remedies available to him. He can--
(1) apply under Order 9, Rule 13, C.P.C. For setting aside ex parte decree;
(2) invoke reviewal jurisdiction of the trial Court for setting aside ex parte decree under section 114, C.P.C. Read with Order 47, Rule 1, and
(3) challenge the validity of ex parte decree on merits.
18. It is interesting to note that defendants/appellants Nos. 1 to 3 have not availed either of these remedies open/available to them but have chosen to be impleaded as parties to the application filed by defendant/appellant No, 4 under Order 9, Rule 13, C.P.C. For setting aside the impugned decree.
19. We have serious reservation about the new and novel proposition if the provisions of Order 1, Rule 10 can be borrowed and applied for impleadment to an application made by defendant/appellant No, 4, in the circumstances when there is no hurdle in their way for seeking vacation of the ex parte decree straightaway under Order 9, Rule 13, C.P.C.
20. Reverting to the original subject, if a defendant applies under Order 9,, Rule 13, C.P.C., all that he is required to do was--
(1) to satisfy the Court that the summons was not duly served, or
(2) to show that he was prevented by any sufficient cause from appearing when the suit was called for hearing.
21. So far as defendants Nos. 1 to 3 are concerned, we find no averments in respect of these twin elements. In the absence of such averments, namely they were not properly served or they were prevented by sufficient cause, beyond the human control, from appearing in Court on dates fixed for hearing in the suit, it is not rash to presume that they were properly served in accordance with law and that they have no good grounds to show for their non-appearance on 19-6-1991. Thus the ex parte decree passed against these three appellants/defendants stands intact and cannot be set aside.
22. As far as the case of defendant/appellant No, 04 is concerned, we are equally unable to find any merit therein. In order to set aside ex parte decree, onus heavily lies on the appellant/defendent to satisfy the Court that he was not duly served or there was sufficient cause by which he was prevented to appear in Court when the suit was called for hearing. To appreciate his contention it is necessary to go through the contents of his application for setting aside the impugned decree. A perusal of the text of his application would show that he has taken two pleas- -
(1) that he has not been served in accordance with law, and
(2) that he has come to know about the existence of the impugned decree on 25-11-1992.
23. On the face of it neither of these two contentions has any substance or ring of truth. We have held above that he was duly served and he too was represented by his own Sub-Engineer, who could not, on his own and without the permission/instructions from defendants/appellants, appear on their behalf in the Court on various dates of hearing and also before the local Commissioner, as discussed above. All the defendants/appellants have been given unduly favourable treatment by the learned Civil Judge. Under Order 9, Rule 7, this defendant/appellant, who was placed ex parte at two stages referred to above, did not apply to the said Court for setting aside ex parte proceedings on the ground that he was not properly served. Nevertheless, he was allowed to be represented in future date of hearing through his agent/subordinate and was thus taking active part in the proceedings in a suit instituted against him to his knowledge and that of others. His personal knowledge of the suit pending against him and others, his conduct, his participation in proceedings through his representative/subordinate (which he has never disowned at any time or stage) and his sudden and abrupt spurt in keeping himself away and the dramatic disassociation of his representative/subordinate from the proceedings which had entered a crucial stage, would essentially and totally demolish the pleas taken up by him. He had gained personal knowledge of the institution of the suit in February, 1990 and then in June, 1991 and also through his representative/subordinate. It can be said with certainty that he had full knowledge about the existence of the impugned decree in June, 1992. His application dated 2-12-1992 for setting aside the ex parte decree after 5 months and 10 days is hopelessly bared by time within the meaning of Article 164 of the Limitation Act, 1908 which prescribes 30 days from the date of knowledge of such decree.
24. There is no explanation as to why did he disassociate from the proceedings in May, 1992. Nor has he appended any application under Article 5 of ,the Limitation Act, 1908 for condonation of delay. There was no justification for the Civil Judge to set aside the ex parte decree in question. We also do not find any reason or ground to interfere with the impugned order of the Civil Judge. This appeal, in our view, does not merit consideration and is therefore, rejected.
25. Before parting with the case we would like to observe that the Secretary to Government of N.- W.F.P., C & W. Department should hold a proper enquiry in this matter, fix responsibility and take appropriate H disciplinary action against the official/officials who is/are guilty of negligence/misconduct, wilful or otherwise. The Deputy Registrar is directed to send a copy of this judgment to the Secretary concerned. Costs to follow the events.