TALAAT QAYYUM QURESHI, J.--- Fayyaz Rasool petitioner instituted suit for declaration and permanent injunction against respondents Nos.2 to 4. The suit was resisted by respondents Nos.2 to 4 by filing written statement. The respondents/ defendants failed to appear on 13-1-2001 on which date ex parte order was passed and the case was posted for recording ex parte evidence of the plaintiff. After recording ex parte evidence, an ex parte decree was passed on 15-3-2000. The respondents filed an application for setting aside the ex parte decree on 27-5-2000, which was allowed vide order, dated 14-12-2000 and ex parte decree passed on 15-3-2000 was set aside.
Being aggrieved of the said order, the petitioner filed revision in the Court of learned District Judge but the same was dismissed vide order, dated 10-4-2001. The petitioner has through writ petition in hand assailed the judgment and decrees passed by the Courts below.
2. We have heard Mr. Muhammad Arif Khan, the learned counsel representing the petitioner and perused the record annexed with the writ petition.
3. Admittedly the suit filed by the petitioner/plaintiff was contested by respondents by filing written statement. However, on subsequent dates the respondents/defendants absented themselves and ex parte order was passed on 13-1-2001. After recording ex parte evidence of the petitioner/plaintiff, the suit was ex parte decreed on 15-3-2000. The respondents/defendants filed application for setting aside the ex parte decree on 27-5-2000 i.e. After 2-1/2 months which was allowed vide order, dated 14-12-2000 and the ex parte passed on 15-3-2000 was set aside.
4. The contention of the learned; counsel for the petitioner that the application for setting aside the ex parte decree was barred by time under Article 164 of the Limitation Act as the same was filed after 2-1/2 months without any condonation of delay application has no force at all. Since the respondents had appeared in Court in response to the summons issued and contested the suit and thereafter absented on 13-1-2001, therefore, the period of limitation available to them for filing application for setting aside ex parte decree was three years under Article 181 of the Limitation Act and not 30 days. A similar question carne up for hearing before the august Supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Punjab Small Industries Corporation, Lahore PLD 1981 SC 21, wherein it was held that- "The next question arises as to what would be the period, of limitation for an application for setting aside an ex parte decree, not covered by Article 164. That application may or may not be under section 151. It could still be under the second part of Rule 13 of Order IX, though in some cases section 151 might also apply. When defendant makes an application under Order IX, Rule 13 in connection with an ex parte decree, which is not passed under Rule 6 of Order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of 'null and void order' on the question of limitation; is simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the exercise of rationalisation, in the light of experience gain during three quarters of a country."
Following the dictum laid down in the above-cited case-law, this Court in Water and Power Development Authority v. Muhammad Hayat Khan and 7 others PLD 1986 Pesh. 81, observed that: ---We understand that PLD 1981 SC 21 is the latest authority in time laying down a law in unequivocal terms and language which is binding on all other Courts in the country as provided under Article 189 of the Constitution and as such we will respectfully follow it. We accordingly hold that in cases of applications for setting aside the ex parte decrees other than those passed under Order IX, Rule 6(1)(a), C.P.C. The law of limitation shall be Article 181 and not Article 164. In the present case the ex parte decree was passed under Order XVII, Rule 2 read with Order IX, C.P.C. On 6-1-1980 at the time when the plaintiff had since closed their evidence in the case and it was necessarily not a stage of first hearing. Application for setting aside of the ex parte decree was filed on 18-12-1982 within a period of 3 years from the date of the ex parte decree and the application shall be, therefore, accepted within time."
5. Following the abovementioned dictum laid down by the august Supreme Court of Pakistan we observe that the application submitted by the respondents for setting aside ex parte decree on 27- 5-2000 was within time and the Courts below have rightly set aside the ex parte decree. The law even otherwise envisages determination of disputes on merits rather on technicalities. We, therefore, do not-see any substance in the writ petition in hand and dismiss the same in limine alongwith C.M. No. 522 of 2001.