Zardad Khan, the petitioner herein, in the year, 1986 filed a suit before the Civil Court at Abbottabad and sought the grant of a declaratory decree to the effect, that he is owner in possession of 14/20th share in a certain land, measuring 10 Karals, 11 Marlas and comprised in Khasra Nos.457, 458, 459, 460, 462 in village I ajoia, Tehsil and District, Abbottabad through purchase on the basis of sale- deed, dated 13-3-1985 and asked further for the grant of a decree for perpetual injunction as consequential relief that the defendant--respondent, namely, Muhammad Ayaz Khan shall be restrained from making any interference into the suit land by denying his title rights and, in the alternative, for possession of the land through specific performance of the agreement deed, dated 13-3-1985 executed between the parties against payment of sale consideration in the sum of Rs.60,000 which had been paid to the respondent on the date of writing of the document in question.
2. Muhammad Ayaz Khan defendant contested the suit by filing a written statement on 28-6-1986 through his lawyer, Mr. Amir Hussain Abbasi, Advocate wherein, inter alia, he raised many legal and factual pleas including an issue that the agreement deed is fictitious, fraudulent and without consideration. Thee petitioner on 5-7-1986 filed a replication in answer to the written statement and the learned Civil Judge, 1st Class, Abbottabad with whom the case proceeded on the basis of pleadings which he received settled formally as many as 11 issues on 19-7-1987 in presence of counsel for the parties who afterwards on 27-7-1986 filed list of witnesses. The respondent- defendant not only cited in evidence Patwari with relevant revenue papers but also two persons of the village in defence, namely, Khan Baz son of Mir Wali and Khan Baz son of Sheraz. The case was then adjourned to 29-9-1986 for writing evidence and the learned Court completed evidence of the plaintiff on 21-6-1987. During this time both the Advocates were present in Court and learned counsel for the defendant cross-examined in detail witnesses produced by the petitioner in evidence. The case was afterwards adjourned to 9-5-1987 for evidence of the defendant on payment of costs in the sum of Rs.65. On that day both the counsels were present but defendant and his witnesses were absent and the case had to be adjourned to 21-5-1987 for recording evidence of the defendant on payment of costs at Rs.35. On 21-5-1987 both the Advocates were present but the defendant and his witnesses absent and at the request of the counsel for the respondent the case was adjourned to 22-6-1987 for evidence of the defendant. On that day, i.e., 22-6-1987 plaintiff and his counsel were present but the defendant, his evidence and Counsel absent and the Court had to proceed and decide the suit forthwith under Order 17, rule 3 C.P.C. And passed a decree (ex parte) against the. Defendant by granting to the plaintiff the relief as prayed for in the plaint.
3. Defendant Muhammad Ayyaz Khan on 14-9-1987 moved an application under Order 9, rule 13, C.P.C. Before the trial Court for setting aside the ex parte decree on the ground that he being in Karachi was not served in the suit. He also denied of executing any "Wakalat-Nama" in the case in favour of Mr. Amir Hussain Abbasi, advocate Abbottabad. This application was contested by the plaintiff and the learned trial Judge after recording evidence on both sides rejected it on 12-3-1991.
The defendant lodged an appeal before the District Judge, Abbottabad who after hearing the parties accepted it on 14-4-1993 by setting aside the ex parte decree, dated 22-6-1987 on payment of costs at Rs.500 and remanded the case to the trial Court for disposal afresh. Hence this petition by plaintiff Zardad Khan under section 115, C.P.C. Against the judgment and decree of the appellate Court.
4. 1 have heard the learned Counsel on both sides. Syed Abdus Salam Sarwar, Advocate on behalf of the petitioner stated that the impugned decree having been passed under Order 17, rule 3, C.P.C.
Could not be s*t aside by the appellate Court under Order 9, Rule 13, C.P.C. Taking it an ex parte decree under Order 17, rule 2, C.P.C. And applying Article 181 of the Limitation Act in the case. That the appellate Court wrongly placed reliance on the case reported in PLD 1986 Peshawar 81 which was not only inapplicable but later on overruled by the Supreme Court in Civil Appeals Nos.58 and 59-P of 1988 and this fact was brought to the notice of the learned District Judge. That remedy against a decree passed under Order 17, rule 3, C.P.C. In this case was by way of appeal under section 96, C.P.C. To be lodged within 30 days by the defendant to the Court of a District Judge from the date of the decree or order appealed from under Article 152 of the Limitation Act, 1908.
5. As stated earlier, defendant Muhammad Ayaz Khan not only contested the suit before the trial Court by filing a written statement on 28-6-1986 through his counsel, Mr. Amir Hussain Abbasi, Advocate the learned Civil Judge in presence of the Advocates of the parties after receiving a replication from the plaintiff on 5-7-1986 framed as many as 11 issues in the case on 19-7-1986 arising out of the pleadings who afterwards filed list of witnesses for evidence on 27-7-1986. The case was then fixed for recording evidence of the plaintiff to 29-9-1986 and the trial Court after many hearings completed evidence of the plaintiff on 26-1-1987. During all this time counsel for the defendant-respondent remained present in Court and cross-examined witnesses produced by the plaintiff-petitioner. The case was then adjourned to 9-5-1987 for evidence of the defendant on payment of costs at Rs.35. On that day both counsel of the parties were present but the defendant and his witnesses absent and the case was adjourned to 21-5-1987 for recording evidence of the defendant on payment of further costs at Rs.35. Both Advocates were also present on 21-5-1987 but the defendant and his witnesses again absent and at the request of the counsel for the defendant the case was adjourned to 22-6-1987 for evidence of the respondent. On 22-6-1987 the plaintiff and his counsel were present but the defendant, his counsel and witnesses absent and the Court had to proceed and decide the suit forthwith under Order 17, rule 3, C.P.C. By passing an ex parte decree in the suit. Muhammad Ayaz Khan defendant on 14-9-1987 moved an application under Order 9, rule 13, C.P.C. Before the trial Court for an order to set aside a decree passed ex parte on the ground that he being in Karachi was not served in the proceedings. He also denied of engaging any counsel in the case or of executing a "Wakalat-Nama" in the name of Mr. Amir Hussain Abbasi Advocate, Abbottabad. It was rejected by the trial Court on 12-3-1991 after recording evidence of both the parties.
6. The record of the trial Court shows that not only the defendant engaged Mr. Amir Hussain Abbasi, Advocate in the case by executing a valid "Wakalat--Nama" in his name on 29-5-1986 which is signed by Muhammad Ayaz Khan, the learned Advocate appeared in Court on his behalf afterwards at various dates of hearing and contested the suit by filing a written statement, list of witness to be produced by the defendant in evidence and cross-examined at length witnesses offered in dvidence by the plaintiff. Mr. Amir Hussain Abbasi, Advocate appeared before the Court on 22-2-1989 during proceedings on application moved by the defendant under Order 9, rule 13, C.P.C. And made a statement on oath by categorically stating that he personally knows Muhammad Ayaz Khan, his father and father of the defendant being friends and was engaged as his counsel by the respondent in the said case before the trial Court wherein he not only filed a written statement on behalf of the defendant but conducted all subsequent proceedings. It can be safely said on consideration of evidence written before the trial Court that the defendant was not only served in the initial suit but also appointed a counsel of his choice who conducted proceedings on his behalf before the Court during a period of more than one year between 1986- 87 when Mr. Amir Hussain Abbasi, advocate filed a "Wakalat-Nama" in Court on 29-5-1986 till 22-6- 1987 when the case after many adjournments at his request was finally decided by the Court.
7. The defendant could not, therefore, apply to the trial Court who passed the decree for an order to set it aside by stating that the summons was not duly served, or he was prevented by any sufficient cause from appearing when the suit was called on for hearing by moving an application under Order 9, rule 13, C.P.C. Which was dismissed on 12-3-1991 after recording evidence. The learned Court opined that plaintiff Zardad Khan was granted a decree after evidence of the defendant was struck off under Order 17, rule 13, C.P.C. And the said order being appealable no application can be legally maintainable under Order 9, rule 13, C.P.C. The learned District Judge on appeal applied Order 17, rule 2, C.P.C. In the case by stating that, "The provisions of Order 17, Rule 3, C.P.C. Are penal in nature and could be invoked for deciding the suit finally on merits. Under the law, Order 17, Rule 3, C.P.C. Applies only to cases where the parties are present. In this case the defendant/appellant was not present on the crucial date i.e. 22-6-1987 as such ex parte decree under Order 17, Rule 3, C.P.C. Could not be granted. No doubt the trial Court has expressly mentioned that the order was passed under Order 17, Rule 3, C.P.C., yet it does not mean that the ex parte decree must be deemed to have been passed under Order 17, Rule 3, C.P.C.
Since the defendant/appellant was absent, an ex parte decree could be passed against him under Rule 2 and not Rule 3 of Order 17, C.P.C. And to get it set aside he had two remedies (1) to proceed under Order 9, Rule 13, C.P.C. By submitting an application to the trial Court, and (2) to appeal against the decree under section 96, C.P.C. The defendant/appellant in this case opted to proceed under Order 9, Rule 13, C.P.C. Which is obviously more convenient and cheaper Course, as such, the trial Court wrongly rejected his application.
The second question confronted by this Court is whether the impugned ex parte decree was liable to be set aside? It is on record that the ex parte decree was passed at the stage of evidence of the defendant, as such, application for setting aside would be governed by Article 181 of the Limitation Act which prescribes a period of three years. (PLD 1986 Peshawar 81). The impugned ex parte decree was passed on 22-6-1987 while application for setting aside was submitted on 14-9-1987, i.e., within three years of the ex parte decree which is clearly within time."
8. But the learned appellate Court did not notice this important fact that Rule 2, Order 17, C.P.C. Shall apply where the date for hearing of the suit is adjourned by the Court itself and Rule 3 will be attracted where the adjournment was at the request of a party. Reliance is made on PLD 1969 Supreme Court 70. In this case not only once but at many dates of hearing of the suit before the trial Court the case was adjourned for evidence of the defendant at the request of his counsel. On 22-6-1987 not only evidence of the defendant was available, but the 8 respondent and his counsel were also absent and the Court on the consideration of evidence recorded for the plaintiff passed a decree forthwith in the suit under Order 17, rule 3, C.P.C. The trial Court, in the circumstances, rightly applied Rule 3 of Order 17, C.P.C. In the case by passing a decree against the defendant on the evidence available on record notwithstanding that it termed it an "ex parte" decree because of absence of the defendant or his counsel from the proceedings on the appointed date. Order 17, Rule 3, C.P.C. Shall apply where C a party who is granted time to perform some act not only fails to do so but is also absent on the date to which the case was adjourned for hearing. 1983 SCMR 619, PLD 1985 Pesh. 91 cited.
9.The learned appellate Court in this background of the case not only erred by placing reliance on PLD 1986 Peshawar 81 which was not applicable p and overruled by the Supreme Court in Civil Appeals Nos .58 and 59-P of 19881decided on 7-5-1991, but also erred in applying Article 181 to the case for purpose of limitation and as such acted in the exercise of its jurisdiction illegally or with material irregularity. The impugned judgment and decree of the appellate d Court, dated 14-4- 1993 on the acceptance of this revision petition is set aside and that passed by the trial Court in the suit on 22-6-1987 under Order 17, rule 3, C.P.C. Restored. No order as to costs.