' MUHAMMAD YOUNAS SURAKHVI, J.---This appeal by leave of the Court has been filed to call in question the judgment and decree of the High Court passed on January 30, 1994.
2. The dispute between the parties pertains to land measuring 50 Kanals 1 Marla comprising Survey Nos. 18, 23, 90 and 167 situate in village Jura, Tehsil Authmaqam. Muhammad Azeem, ancestor of the parties, was the last owner. On his death Mutation No, 341 of the estate of the deceased was attested on May 15, 1958. The inheritance of the deceased devolved upon Abdul Latif, Abdul Rehman, sons Muhammad Ayub s/o Muhammad Hanif, grandson, Mst. Noor Jehan, Mst. Hassan Jan, Mst. Zaitoon Akhter daughters and Mst. Phali widow. Thereafter land measuring 13 Kanals 4 Marlas Survey No, 167 out of land measuring 50 Kanals 10 Marlas falling in the shares of Muhammad Ayub and Mst. Zaitoon Akhter was transferred by them, including the built up property, through a registered sale-deed in favour of one Noor Alain for a consideration of Rs,8,000. The sale- deed was executed on August 30, 1969.
3. Abdul Latif and others, the predecessor-in-interest of Muhammad - Ilyas and others, appellants herein, filed a declaratory suit in the Court of Sub-Judge, Muzaffarabad challenging the mutation of the estate of the deceased Muhammad Azeem and sale-deed dated August 30, 1969 executed by Muhammad Ayub and Mst. Zaitoon Akther to the effect that mutation and sale-deed were illegal and as such ineffective as against their rights. It was averred in the suit that Muhammad Ayub defendant was not entitled to inherit the estate of his grandfather Muhammad Azeem, the ancestor of the parties, as his father Muhammad Hanif pre-deceased Muhammad Azeem. It was also averred in para 7 of the plaint that Muhammad Ayub, being dumb, deaf and insane was incompetent, on account of his lack of understanding, to execute the sale-deed.
4. Muhammad Ayub and other defendants were duly served by the trial Court through summons issued to them who appeared before the trial Court, submitted their written statements and issues were framed in their presence vide order of the trial Court dated August 5, 1970. On August 7, 1972 the evidence of three witnesses of the plaintiffs was recorded in presence of the defendants.
Thereafter two more adjournments were granted to the plaintiffs for producing further evidence.
On December 11, 1972, the defendants Muhammad Ayub and others absented themselves and consequently they were proceeded ex parte. On the same day the evidence of two more witnesses of plaintiffs, namely Abdul Hamid and Muhammad Shafi was recorded ex parte and consequently the ex parte decree was passed in favour of plaintiffs against the defendants on December 11, 1972 in Civil File No, 438 of 1969.
5. Noor Alam vendee and the predecessor of real respondents, herein, on the basis of sale-deed executed in his favour instituted a suit for possession in the Court of Sub-Judge Authmaqam which was later on withdrawn with the permission of the Court in order to file a fresh suit. On May 2, 1979, a subsequent suit for possession was filed by Noor Alain whereby he challenged the ex parte decree dated December 11, 1972 and also prayed for the possession of a suit land transferred in his favour by way of sale-deed. The defendants controverted the allegation made in the pleadings of the plaintiffs and alleged their title on the basis of ex parte decree. After the conclusion of the trial in this suit the trial Court dismissed the suit of the plaintiffs for want of proof on June 29,1983 in Civil File No, 51 of 1979. The appeal filed by Noor Alam was accepted by the Additional District Judge Muzaffarabad on July 21, 1987 and the appeal filed by Muhammad Ishaque and other orders of the High Court dated January 30, 1994. Hence this appeal.
6. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, inter alia contended:--
(i) that the suit filed by Noor Alam to challenge the validity of the ex parte decree was not maintainable. He contended that it was enjoined upon Noor Alam to file an application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree within 30 days from the date of the decree.
Even the suit filed by Noor Alain was time-barred, submitted the learned counsel;
(ii) that the learned Judge in the High Court came to the conclusion that Muhammad Hanif, the father of Muhammad Ayub pre-deceased his father Muhammad Azeem, therefore, in any case, according to the learned counsel Muhammad Ayub was not entitled to inherit any share from the estate of his grandfather. Therefore, the decree for possession passed in favour of the respondents, by the Additional District Judge and the High Court on the basis of sale-deed executed by Muhammad Ayub and Mst. Zaitoon Akther was not tenable in law;
(iii) that there was no evidence on record in support of the suit of Noor Alam. The evidence brought on record did not substantiate his claim, particularly when the plaintiff himself did not enter into the witness-box in support of his contention, therefore, an adverse inference in the circumstances of the case should have been drawn against the plaintiffs; and
(iv) that the observation made by the High Court with regard to maintainability of the appellants' previous suit in which an ex parte decree was granted in their favour, Muhammad Ayub was shown as an insane person and nobody was appointed as his next friend, was not a ground for grant of decree in favour of respondents, rather in such an eventuality the case should have been remanded to the trial Court to proceed in accordance with law after setting aside the illegality if any.
7. On the other hand Mr. Farooq Hussain Kashmiri, the learned counsel for the respondents, controverted the contentions raised by the learned counsel for the appellants. He inter alia contended that when the mutation of the estate of Muhammad Azeem was sanctioned all his legal heirs were present at Camp Jura where the mutation was sanctioned and they duly consented to it. The mutation of the estate of Muhammad Azeem deceased bearing No, 341, according to the estimation of the learned counsel for the respondents, still remains intact. On the other hand Mutation No, 339 was challenged which pertains to the estate of one Atta Muhammad who has nothing to do with the suit land. The learned counsel also submitted that merely on account of nonappearance of plaintiff in the witness-box as his own witness, does not disentitle him to the relief to which he was otherwise entitled. The learned counsel maintained that when Muhammad Ayub in the previous suit was shown as an insane person, no suit could have proceeded against him without appointing a next friend to protect his interest. He also maintained that the sale-deed executed by Muhammad Ayub and Mst. Zaitoon Akhter could not have been set aside as no ground was urged against the execution of sale-deed by Mst. Zaitoon Akhter. The learned counsel vehemently contended that the ex parte decree passed by the Sub-Judge cannot be termed as judgment in the eye of law as the same does not fulfil the necessary legal requirements. On the basis of above contentions the learned counsel urged the dismissal of appeal.
8. We have heard the learned counsel for the parties and perused the record made available with care.
9. At the very outset it may be clarified that an ex parte decree is only voidable, unless and until it is annulled, it would have all the force of a valid decree. A defendant against whom an ex parte decree is passed is entitled to seek the remedy against the ex parte decree by moving an application under Order IX, rule 13, C.P.C. For setting aside such a decree within 30 days from the date of the decree or from the date of knowledge or by preferring an appeal from the decree or by seeking review or by instituting a suit on the ground of fraud. In some cases inherent powers are also available for that purpose.
10. In the instant case the defendants Noor Alam and others did not file an application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree nor availed any other remedy but they chose to file a regular suit for setting aside the ex parte decree by alleging that it was procured by practising fraud. Suffice it to say that no fraud was specifically pleaded. The only ground on which the reversal of the ex parte decree in the previous suit can successfully be prayed for in a suit for setting aside that decree is that the plaintiff was prevented by fraud of the decree-holder in the previous suit from placing his case before the Court. In other words he will have to prove that notice of the previous suit was not served on him and thus non-service was due to fraud of the defendant in the previous suit. This may be done by 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 allegation. It is, therefore, clear that for a suit to be maintainable the fraud must be actually positive, amounting to intentional contrivance and to keep the parties and the Court in ignorance of the real facts and obtaining the decree by such a contrivance. The fraud must also be extrinsic to the proceeding of the Court, i,e, it must be in the conduct of the suit by keeping the defendant out of the Court by a deliberate employment of machinery of the Court in such a way that the defendant is prevented from placing his case before the Court.
11. In the instant case the fraud was neither specifically alleged nor there is an iota of evidence on record to prove it. The onus was also on the plaintiff Noor Alam to prove that his suit based on fraud, for setting aside the decree, was within time. The relevant Article 181 of the Limitation Act provides a period of three years for filing such a suit. The suit was filed by Noor Alam and others on May 2, 1979, obviously beyond the period of limitation. The learned Judge in the High Court held that although the suit filed by Noor Alam and others was time-barred but as the;e was no objection from the other side so the matter was left unresolved. We are of the considered view that we cannot shut our eyes from the legal provisions. The learned counsel for the appellants has specifically taken the plea in ground No, 11 (f) of the memorandum of appeal and in ground (f) of his concise statement that the suit filed by Noor Alam and others was hopelessly time-barred. The question being purely a legal one we therefore, allow the same and hold that the suit filed by Noor Alam and others for setting aside the ex parte decree was hopelessly time-barred and liable to be dismissed. It is moreso by pointing it out once again that in the suit filed by Abdul Latif and others the predecessor-in-interest of Muhammad Ilays and other defendants Noor Alam and others as a consequence of summons issued by the Court and served on them appeared before the trial Court, filed their written statement, issues were framed in their presence and a bulk of evidence of plaintiff was recorded in their presence and then they absented themselves. So it becomes crystal clear that Noor Alam and others were well aware of the ex parte decree passed against them and they did not choose to get it set aside within time.
12. The other ground of attack of the learned counsel for the respondents is that in the suit filed by Muhammad Latif and others against Muhammad Ayub and others, Muhammad Ayub defendant was admittedly shown as dumb, deaf and incapable to protect his interest. In the estimation of the learned counsel for the respondents, without appointing any next friend of Muhammad Ayub no suit could have proceeded against him any transfer of share made by Muhammad Ayub was void ab initio. The learned counsel also maintained that Mst. Zaitoon Akhter was the admitted heir of Muhammad Azeem deceased so any transfer of her share to Noor Alam was a valid transfer. The ex parte decree against Mst. Zaitoon Akther, according to the submissions of the learned counsel, was factually incorrect. The learned counsel emphasised that it was enjoined upon the Court to appoint the next friend of Muhammad Ayub in order to protect his interest. The learned counsel referred to Order XXXII, rule 15 of the Code of Civil Procedure and maintained that rules 1 to 14 of the said rules were equally applicable in the cases of persons of unsound mind as they apply in cases of minors. Apparently this argument sounds good but on critical examination of the facts of the case in hand the argument is misconceived. Muhammad Ayub no doubt is admitted by the plaintiff to be of unsound mind but the fact remains that non-appointment of anybody as his next friend to act on his behalf will make no difference at all. As Muhammad Ayub and Mst. Zaitoon Akhter were both vendors they had already transferred their shares in the property in favour of Noor Alam vendee, who stepped into the shoes of vendors. In our view Muhammad Ayub and Mst.
Zaitoon Akhter were only proper parties and not the necessary parties. Their interest was fully looked after by Noor Alain vendee who had been appearing in the Court and after taking some steps as mentioned earlier he absented himself. So ex parte decree was rightly passed against Noor Alam and others. Noor Alam in his suit for possession did not put up himself in the witness-box as his own witness. The rest of the witnesses produced by him clearly admit about the knowledge of the previous suit filed by Muhammad Latif and others, so it becomes abundantly clear that Noor Alam and others were well aware of the decree having been passed against them. So in the circumstances of the case we cannot excuse the gross negligence committed by them in not getting the ex parte decree set aside.
13. During the course of arguments the learned counsel for the respondents pointed out that Muhammad Latif and others did not challenge Mutation No, 341 of the estate of Muhammad Azeem; rather they have challenged Mutation No, 339 which pertains to the estate of one Atta Muhammad. It was argued by the learned counsel for the respondents that Mutation No, 341 of the estate of deceased remained intact throughout. We regret to ascribe to the view of the learned counsel for the respondents. In fact Mutation No, 339 was mentioned through inadvertence. When we looked the plaint filed by Muhammad Latif as a whole we clearly found that in fact the mutation pertaining to the estate of Muhammad Azeem deceased was challenged and this is how the mistake took place through inadvertence as was rightly pointed out by the learned Sub-Judge. We, therefore, hold that where there is a reference of Mutation No, 339 in the impugned judgment of all the Courts it will be read as Mutation No, 341.
14. The learned Judge in the High Court held "that Muhammad Azeem the last owner, by virtue of family settlement, distributed his estate among his three sons. He died 20 years thereafter. On his death mutation of his estate was attested on May 15, 1958 in presence of all the heirs. Muhammad Hanif pre-deceased his father. He was survived by Muhammad Ayub. Muhammad Ayub was also included among the legal heirs of the deceased and shared out of the estate".
15. The above finding relates to a question of fact. This assertion should have been made by the defendants in their written statement, had it been their case. The above finding is based on no evidence at all and there was no issue on this point. So in absence of any evidence and ground taken in the written statement to that effect we cannot agree to this finding recorded by the learned Judge in the High Court.
16. The learned Judge in the High Court also opined that "ex parte decree was violative of the provisions of Order XX, rule 5, C.P.C." The learned Judge observed that it was enjoined upon the Court to decide each issue separately.
17. As we have already come to the conclusion that the suit filed by Noor Alam the predecessor-in- interest of respondents for setting aside the ex parte decree was time-barred so the resolution of question that ex parte decree was violative of law or that it was against the provisions of Order XX, rule 5 is merely a question of academic interest. In our view unless and until the barrier of limitation is crossed, this matter cannot be considered.
' For the aforestated reasons, by accepting the appeal, the judgments and decrees of the High Court dated January 30, 1994 and the Additional District Judge, Muzaffarabad dated July 21, 1987 are set aside and the decree passed by the learned Sub-Judge Authmaqam is restored. The parties are, however, directed to bear their own costs throughout.