' MUNAWAR AHMAD MIRZA, J.---These petitions for leave to appeal are directed against the judgment dated 25-1-1996 passed by High Court of Sindh Karachi. Points requiring determination in these matters are identical, hence same are being decided through common judgment.
2. Relevant facts giving rise to present petitions, are that property bearing No,SR-8/18, Hassan Ali Effendi Road, Karachi, was allotted to late Maulana Abdul Qudus Bihari (father of petitioners) by Deputy Rehabilitation and Settlement Commissioner, Karachi, vide his Order No,Reh./8183/ARC dated 15-3-1952. There were also other claimants, who were following allotment and transfer of said property in their favour, on the basis of physical possession. Record reveals that there was protracted litigation between the parties, and ultimately on the basis of order dated 8-6-1974 passed by Additional Rehabilitation and Settlement Commissioner (Lands), Karachi. ' Transfer Order', pertaining to subject matter of dispute was issued in favour of late Maulana Abdul Qudus Bihari (predecessor-in-interest of petitioners); on 20th August, 1975.
3. It may be seen that on 16-5-1979 respondent Sher Muhammad filed a suit for cancellation of 'Transfer Order' dated 20-8-1975 issued in favour of late Maulana Abdul Qudus Bihari and declaration of being its owner, besides permanent injunctions restraining from implementing or giving effect to said transfer order. It appears that notices were served upon Maulana Abdul Qudus Bihari (father-predecessor-in-interest of petitioners) who remained absent. Eventually ex parte proceedings were drawn against him on 16-9-1979. Subsequently learned Senior Civil Judge vide judgment dated 23-12-1979 granted ex parte decree in favour of the respondent, Sher Muhammad, in following terms:-- "The defendants are called absent though served therefore on 16-12-1979, it was decided to proceed ex parte against them.
' Since the plaint is on oath therefore contents of plaint are admitted as correct. The suit of plaintiff is decreed and it is declared that order of defendants Nos.2 and 3 in favour of defendant No,4 about the transfer of suit property is void therefore cancelled. Further prayer of Mandatory Injunction, that the defendants Nos.2 and 3 be directed to transfer the said property to plaintiff is rejected since it is not warranted by any law.
' In the circumstances the parties are left to bear their own cost.
' Given under my hand and seal of the Court this 23rd day of December, 1979.
Announced in open Court. 23-12-1979 (Sd.)
(Rajal Das G. Basantani) II Senior Civil Judge/A.S.J.
Karachi."
4. It is the case of petitioners that during January, 1983, late Maulana Abdul Qudus Bihari (predecessor-in-title of petitioners) came to know about ex parte decree dated 23-12-1979, which according to him was procured by respondent Sher Muhammad through misrepresentation and exercising fraud. Therefore, after obtaining necessary documents towards 21st May, 1983, of respondents submitted an application praying for setting aside ex parte decree, under Order IX rule 13 before trial Court, which was, however, rejected on 7th December, 1983.
5. It is undisputed fact that petitioners remained silent for almost seven years, and towards 19th July, 1990 submitted an application under section 12(2) C.P.C. Challenging validity of cx parte decree dated 23-12-1979 on the ground of having been obtained through fraud, misrepresentation and presentment of false claim. Some of the documents were also placed on the record of case file. Ultimately after hearing parties, learned Senior Civil Judge-IV, Karachi South, dismissed said application by means of judgment dated 11-12-1990. The petitioners feeling dissatisfied had preferred Civil Revision Application No,17 of 1991 before Additional District Judge-III, Karachi (S), which was also rejected on 2nd December, 1991.
6. It may be seen that petitioner, late Maulana Abdul Qudus Bihari started causing some obstruction and interference in the possession of respondent Sher Muhammad therefore, on 7-1- 1987 he instituted Civil Suit No,41 of 1987 before Civil Judge XII, Karachi South, seeking declaration regarding his legal right and entitlement to carry business in suit premises uninterruptedly. It appears that late father of the petitioners despite service of notice did not participate in the proceedings and failed to file written statement in said case. Consequently ex parte decree was granted in favour of respondent Sher Muhammad by Civil Judge XII, Karachi (S) vide judgment dated 13th July, 1987. Petitioners had separately challenged above referred ex parte decree passed against them in Civil Suit No,41 of 1987. Additional District Judge, Karachi (S) by way of Revision Petition No,18 of 1991, which was dismissed on 2-12-1991, maintaining the decision of the trial Court dated 13th April, 1987 and 12th December, 1987.
7. Record discloses that decisions emanating from objection petitions of the petitioners filed under section 12(2) C.P.C. And judgment passed in Civil Revision No,17 of 1991 (supra) has been challenged through Civil Petition for Leave to Appeal No,112-K of 1996; whereas ex parte decree dated 13th April, 1987 passed in Civil Suit No,41 of 1987 and the order of Additional District Judge (S)-cum-Revisional Court passed in Civil Revision No,18 of 1991 has been assailed in Civil Petition for Leave to Appeal No,113-K of 1996.
8. Barrister M. Jameel, Advocate Supreme Court, strenuously urged that Transfer Order issued in favour of late Maulana Abdul Qudus Bihari (father of petitioners) was valid and had been lawfully issued, therefore, ex parte decree dated 23-12-1979 having been fraudulently obtained by respondent Sher Muhammad was devoid of lawful authority and of no legal effect. He stressed hard, that in such eventuality question of limitation had neither relevancy nor significance, therefore, both the Courts below, misconstrued legal position and misappreciated factual aspects by failing to set aside abovereferred void decree.
9. We have carefully perused the record and considered arguments advanced by the learned counsel for petitioners. It is quite apparent that petitioners were fully aware of the ex parte decree granted in favour of respondent on 23-12-1979. Admittedly application for setting aside ex parte decree was also filed towards 21-5-1983 which after contest by respondent was dismissed by the trial Court on 7-12-1983. It is crystal clear that petitioners went into deep slumber of almost (seven)
7 years, and while waking up did not furnish any explanation why order dated 7th December 1983 rejecting said application was not effectively challenged before higher forum. Learned counsel mainly attempted to argue that ex parte decree being void should be ignored despite lapse of considerable period. Obviously such construction would lead to serious confusion. It is well-settled that if forum awarding decree or passing any order has jurisdiction, then party aggrieved must challenge it before higher forum in the same hierarchy within prescribed period of limitation atleast from the date of knowledge. An attempt has been made to show that petitioners could challenge the decree within three years from knowledge as contemplated under Article 181 of Limitation Act. Bare perusal of Article 181 of Limitation Act discloses that period has to be computed from date when cause of action accrued. Obviously even if latitude is granted to petitioners, the right to challenge ex parte decree accrued on 10th January 1983 when he became aware about the same, and at least when application for setting aside of order was submitted on 21-5-1983.
Therefore, no justification exists for challenging the validity of said decree after expiry of three years from year 1983. Petitioner under section 12(2) C.P.C. Which was filed by petitioners towards 11-12- 1990 was obviously incompetent and glaringly barred by time. Forums below have elaborately discussed legal and factual aspects. On careful reappraisal of relevant record and relevant law, we do not find any legal defect or infirmity in the impugned judgment. Additionally, there is concurrent finding of facts based on sound and cogent reasons which on this score is also not liable to interference.
10. For the above reasons, the petitions have not substance, accordingly leave is refused.