This is an application under Order IX, rule 13 and section 151, C. P. C. For setting aside the ex parte decree passed by this Court on 8-8-1977. The facts leading to the filing of the above application are that the plaintiff had filed a suit for the recovery of Rs. 4,42,267.64, against the defendant on the ground of the beach of the contract on the part of the defendant. The defendant was served with the summon as admitted in the present application. In response to the service of the summon, one Mr. Aslam, Superintendent, Legal Section, Ministry of Defence, had appeared in the Court on 5-10- 1976 and requested for time for filing written statement. The time was granted and the case was fixed for 4-11-76 for further proceedings. It appears that thereafter, the defendant did not appear.
The defendant was debarred on 11-1-1977, from filing any written statement. After that the matter was put up for final disposal on 8-8-77 before Hamza Khan Qureshi, J. (as he then was). His Lordship was pleased to decree the suit ex parse against the defendant as prayed for.
2. The defendant has filed this application on 21-11-1977, in which the receipt of the summon of the suit has been admitted. It is stated that the Assistant Incharge, Mr. Aslam appeared in this Court and requested for time to file the written statement on the ground that the defendant had not appointed a counsel for defending the above case. It has further been stated that the Court had debarred the defendant from filing the written statement as 90 days had expired. It has further been asserted that the claim in suit was forwarded by the department for appointment of a counsel by the Ministry of Law and for the preparation of the brief by the counsel. It has also been asserted that on account of shifting and reclassification of record for proper storage, the case file in the suit was mixed up with other files and was misplaced and that the matter did not come to the notice of any one, with the result that neither any counsel could be appointed nor written statement could be filed on behalf of the defendant. It has been further stated that the case file was traced out in the first week of November 1977, while searching, for some other file. Thereupon, the department took action for engaging a counsel and found that the ex parte order decreeing the suit against the defendant had been passed on 8-8-1977 without notice to the defendant of the date fixed for final disposal. It has further been stated that the decree had not been prepared and signed at the time of the filing of the above application. It has also been asserted that the non- appearance of the defendant on the date of the final disposal was due to mishap as stated in the application.
3. The plaintiff has filed a counter-affidavit to the above application in which it has been stated that the defendant was duly served and its representative did attend the Court in compliance with the summons and prayed for time to engage a counsel which was duly granted, and that thereafter the defendant neglected without reasonable cause to engage any counsel or to file a written statement and, therefore, the defendant was debarred from filing any written statement on 11-1-1977. It has further been stated that the matter was fixed in Court many times and even then no body appeared on behalf of the defendant, till the matter came up before Hamza Khan Qureshi, J.
(as he then was) for final disposal. It has further been asserted that the decree could not be signed as his Lordship Mr. Justice Hamza Khan Qureshi was on medical leave. It has further been stated that since then the decree has already been signed. It has further been asserted that the defendant has been guilty of negligence inasmuch as it caused the service of the notice of this application on the plaintiff in February, 1978, though the application was filed on 21-11-1977. It has further been asserted that there is no merit in the application as no reasonable cause for the absence of the defendant has been made out, and that the application is liable to be dismissed.
4. The above application came up for hearing before me inter alia on 15-4-1978, when the learned counsel for the plaintiff raised the plea of limitation apart from his submissions on merits. On the above date I heard part of the arguments advanced by the learned counsel for the parties, but the case was adjourned to 22-4-1978, for further arguments in order to enable the learned counsel for the plaintiff to study the two Supreme Court rulings namely, PLD 1967 SC 271 and PLD 1965 SC 651 relied upon by the learned counsel for the defendant on the question of limitation. The case again came up for hearing on 22-4-1978, when the learned counsel for the plaintiff submitted that the aforesaid two Supreme Court rulings relied upon by the learned counsel for the defendant were not applicable to the instant case and therefore, he pressed his plea of limitation.
The question which requires consideration is, as to whether the above application has been filed within the limitation period provided for in Article 164 of the First Schedule to the Limitation Act. It will be advantageous to reproduce Article 164 of the Limitation Act, which reads as follows :- Description Period of Time from which of suit limitation 'period begins to run.
By a defendant, Thirty days The date of the for an order to decree or, where set aside athe summons was 123 decree not duly served, passed when the applicant ex parte has knowledge of the decree.
A perusal of the above-quoted Article shows that the limitation period provided for filing an application for setting aside a decree passed ex parse. Is 30 days from the date of the decree or, 30 days from the date of the knowledge of the passing of an ex parse decree if the summon has not been served. In the instant case, it is an admitted position that the summon was served on the defendant (which fact has also been admitted by the defendant in its present application). So the sole question, is as to whether the defendant has filed the above application within 30 days from the date of the decree. It may be helpful to state hereinbelow the relevant dates, which are as follows :---
(1) 8-8-1977 being the date when the ex parte decree was passed.
(2) 21-11-1977 being the date when the present application for setting aside ex parte decree was filed by the defendant.
(3) 26-11-1977 being the date when the decree was signed.
6. The learned counsel for the defendant Mr. Saeed A. Shaikh has contended that in view of the case, The Government of West Pakistan and others v. A'iaz Ahmed (PLD 1967SC271) decided by our Supreme Court, the date of the signing of the decree in the instant case is to be taken as the starting point (terminus a quo) for computing the period of 30 days for the purpose of the aforesaid Article 164 referred to hereinabove. In order to appreciate, as to whether the above contention of the learned counsel for the defendant is in accordance with the ratio decidendi of the above Supreme Court's judgment, it may be pertinent to state the facts of the above Supreme Court case.
The facts of the above case were that the respondent Niaz Ahmed filed a suit against the then Government of West Pakistan and others for a sum of Rs. 29,488. A preliminary decree was passed by the 1st Class Civil Judge, Sukkur on 18-9-1963 and a Commissioner was appointed. After the receipt of the Commissioner's report a final decree for Rs. 26,731 with proportionate cost was passed by a judgment dated 30-5-1964. In the judgment it was also mentioned that a final decree was to be prepared after collecting deficit court-fees. The decree was prepared and duly signed on the 1st of September 1964 after the deficit duty had been paid up. The decree gave two dates namely, date of judgment (13-5-1964) as well as the date of signature of the decree (1-9-1964).
Against the above decree an appeal in the High Court was competent. The defendant/judgment- debtor filed an application for certified copies of the judgment and decree on 6-10-1964 i. e. One month and five days after the signing of the decree. The copying branch of the Court delivered the copies on 9-10-1964. Thereafter, an appeal was instituted in the High Court on 28-11-1964 i. e. After a lapse of one month and 19 days from the date of the delivery of the copies. When the above appeal came up for hearing, it was supported by an application under section 5 of the Limitation Act, for extension of time, the main ground given for the supposed delay being that counsel engaged in the case at Sukkur had advised that the appeal could be filed within 90 days from the 1st September 1964 (i. e. The date of signing of the decree) and this advice had the support of the opinion given by a prominent lawyer Mr. Abdul Haq practising at Lahore.
The learned Judges of the High Court, who heard the above appeal came to the conclusion that the appeal was instituted out of time, which their Lordships held began to run from the date of the judgment and that no good reason had been shown for condoning the delay. The Supreme Court was pleased to take a contrary view and was pleased to hold that for the purpose of computing limitation period under Article 156 of the Limitation Act, for filing of an appeal was 90 days from the date of the decree, which should have been computed from the date of the signing of the decree and not from the date of the judgment, though as per Order XX, rule 7, C. P. C. The date of the decree was to bear the date of the judgment. It may be advantageous to reproduce hereinbelow the relevant observations of their Lordships of the Supreme Court at pages 277 and 278, which read as follows :-- "Article 156 of the Limitation Act prescribes with precision the terminus a quo for an appeal of this kind. This is "the date of the decree or order appealed from" and the words are apt to bear the inference that a decree always follows upon a judgment in suit and does not follow upon an order other than a judgment. By the effect of Order XX, rule 7, the decree is to bear the date of the judgment and it would appear that in a case where Order XX, rule 7, C. P. C. Is applied, the time which elapses between the announcement of the judgment and the signing of the decree is included in the time requisite for obtaining a copy of the judgment and the decree. Reference to Order XLI, rule 1, will show that a memorandum of appeal is to be `accompanied by a copy of decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded'. The rule places primary importance upon there being attached to the memorandum a copy of the decree, and clearly mentions the judgment in terms of lesser essentiality. From this a conclusion may be reached, at least tentatively, that until the decree has been made out so that a copy thereof may be obtained, the requirements of Order XLI, rule 1, cannot be met. In other words, that the date of taking steps requisite for satisfying the requirements of Order XLI, rule 1, commences, from the point of-view of limitation, from the time when the decree has come into existence. The view of that application can be made by an interested party at any time after announcement of the judgment, and that if this is delayed until after the decree has been signed, the conclusion of negligence on the part of the person applying must follow, does not in our view, find full support from the wording of Order XLI, rule 1. There is a difference between anxiety and due diligence. An anxious litigant may make an immediate application after the announcement of the judgment, but for satisfaction as to due diligence, it is the requirement of law, which must determine the matter. There being a sanction provided, viz. That of dismissal if the prescribed period of limitation is exceeded, care should be taken that no burden is placed upon the litigant which is heavier than that which the statute, fairly interpreted within its terms, imposes. Since Order XLI, rule 1, renders it possible for an appellate Court to dispense with the copy of the decree, for the due presentation of a memorandum of appeal, and since Article 156, in terms, prescribes the date of the decree, and .Not of the judgment, as the terminus a quo, the duty of the litigant should be assessed in relation principally to procurement of a copy of the decree. Just as no application for copy of a judgment can be expected to be made until the judgment has at least been announced, so, no litigant satisfying the law in its terms can be required to make application for a copy of the decree before that decree has come into existence. The relevant law appears clearly to distinguish between the judgment and the decree which follows upon it, and speaking with respect, this distinction cannot be allowed to be obscured on assumptions, such as, that a decree 'in a legal sense' comes into existence as soon as a judgment is pronounced, or that `in its essence' a decree is not a thing `sparable from the judgment'.
The conclusions reached above are unaffected by the fact that Order XX, rule 7, C. P. C., requires that the decree should bear the same date as the judgment. That provision renders the formal expression of the adjudication effective, as between the parties, from the date of such adjudication, but it cannot be construed so as to enhance the burden expressly imposed on the litigant by Order XLI, rule, 1, C. P. C. Read with Article 156, aforesaid, in respect of the exercise of the right of appeal. Where there is delay in signing of the decree that would ordinarily be accommodated in the period requisite for obtaining a copy of the decree, even if notionally, the date of signing of the decree is related back to the date of the judgment, for purposes of limitation.
But the time would still run from the date of signing of the decree, under Article 156. , Within the territorial jurisdiction of the now defunct Sind Chief Court, there was in force a rule viz., rule 185 in the Sind Civil Courts Manual, which made express provision to give effect to this requirement. As the preface to the Sind Civil Courts Rules published in 1954, will show, `rules made under the Code of Civil Procedure, 1908, appear in Part II of this formulation,' and rule 185 is contained in Part 11. Therefore, this rule must be deemed to have been made in exercise of the power conferred upon the Sind Chief Court by section 122 of the Civil Procedure Code."
7. A perusal of the above quoted observations of their Lordships indicate that their Lordships were pleased to take the view that the date of the decree for the purpose of filing of an appeal under Article 156 of the Limitation Act should be the date of the signing of the decree for the reason that under Order XLI, rule 1, C. P. C. a memo. Of appeal is to be accompanied with a copy of the decree and, therefore, without having a decree duly signed, no appeal is competent.
The above Supreme Court ruling is not applicable to the instant case inasmuch as for the purpose of an application under Order IX, rule 13, C. P. C. An applicant/defendant is not required to file a copy of the, decree or even a copy of the judgment and, therefore, for the purpose of Article 164 of the Limitation Act, the date of the decree as per aforesaid order XX, rule 7, C. P. C. Is the date of the judgment, and 30 days are to be reckoned from the date of the decree.
8. Mr. Asif Zahidi, the learned counsel for the plaintiff has referred me to various rulings namely, Ch. Karam Robbani v. The Central Exchange Bank Limited (PLD 1973 Lab. 695), Brada Prasanna Lod v.
Kubbod Mia (PLD 1962 Dacca 381), Akbar v. A. Ghani and others (PLD 1965 Pesh. 20), Gokaldas Mahadev v. Dilsukhra`n K. Bhatt and others (AIR 1943 Sind 188) in support of his contention that the defendant should have filed the above application within 30 days from the date of the decree and that the date of the decree is the date of the judgment as per Order XX, rule 7, C. P. C.
9. In the first case referred to hereinabove, namely Ch. Karam Rabbani v. Central Exchange Bank Ltd. Mushtaq Hussain, J. (as he then was), the present Chief Justice of the Lahore High Court while construing the provision of section 33 and Order XX, rules 6(1) & (7), C. P. C. Was pleased to bold that the date of a decree is the date of the judgment. His Lordship was pleased to observe at page 705 as follows :- "Order XX of the Code deals with judgment and decree. Rule 3 contains the mandate that the judgment shall be dated and signed by the Judge. Rule 6(1) ordains that `the decree shall agree with the judgment'. Rule 7 lays down that--'The decree shall bear date the day on which the judgment was pronounced and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree'. The date of the decree has consequently got to synchronise with the date on the judgment and about this there could be no controversy because the language of this rule is as clear as any person could make it.
It is axiomatic that the date of the decree must correspond to the date on which the judgment is pronounced no matter what the date of the signing of the decree may happen to be. The reason for that is not far to find. It is on the day when the judgment is pronounced that the Court shall be deemed to have expressed what the decree is going to be. It consequently relates back and operates from the date of the judgment. The language is so clear that it stands in no need of author--ity, but if any be needed the following could be perused.
10. The second case referred to hereinabove, namely, Brada Prasanna Lod v. Kubbad Mia of the Dacca High Court, which was heard by a Pull Bench held that the date of a decree is to be the date of judgment. Their Lordships were pleased to observe at page 391 as follows :---- "The learned Judges who hold that the decree exists in embryo in the judgment and those who say that it comes into existence, for all practical purposes when it takes form and shape in accordance with the provisions of Order XX, rules 6 and 7, do not obviously speak the same language. It is sufficient to say that the judgment being the basis of the decree, the requirement .Of Order XX, rule 7, is that it should bear the date of the judgment and that when the Limitation Act speaks of `the date of the decree', it means the date which is assigned to the decree by the Code, namely the date of the judgment. We, therefore, hold that `the date of the decree' is the date of the judgment which pronounced it."
Their Lordships were also pleased to hold that an appellant is entitled to exclude the period which elapses between the time of the pronouncement of the judgment and the signing of the decree while computing the period of limitation provided under Article 152, which provides 20 days for filing an appeal from a decree or order of the High Court in exercise of its Original Jurisdiction from the date of the decree or order.
11. Referring to the 3rd ruling of the defunct High Court of West Pakistan Peshawar Bench, it may be observed that their Lordships while construing the provision of Order VI, rule 20 and Order IX, rule 13, C. P. C. And Article 164 of the Limitation Act, were pleased to observe that a substituted service was an effective service for the purpose of the above Article 164 of the Limitation Act, and therefore, 30 days period for the purpose of an application under Order IX, rule 13 was to be computed from the date of the decree.
It may be noted that in the above 3 quoted cases, their Lordships have not discussed the point, as to whether the date of a decree can be different than the date of the judgment for the purpose of the above Article 164 of the Limitation Act.
The fourth ruling cited by the learned counsel for the plaintiff via. AIR 1943 Sind 188 will be discussed hereinbelow.
12. After the conclusion of the arguments by the learned counsel, for the parties I myself tried to search for relevant rulings on the point in issue but I could lay my hands on one Indian case of the Judicial Commis--sioner, Kutch which is directly on the point in issue, namely Thacker Shivji Kumverji v. Bhatia Thacker (AIR 1952 Kutch 48). It may be advantageous to quote herein--below paras. 5 and 6 of the above judgment which read as follows;---- "It was not disputed that the Indian Limitation Act having been made applicable to the Kutch State by the Kutch (Application of Laws) Order, 1949, the application under appeal bad to be preferred within 30 days from the date of the decree under Article 164 of the Act. It is apparent that the application was preferred beyond a period of 30 days computed from 12-12-1949 on which the decree, ex parte was passed. The contention was that the expression 'Date of the decree' used in third column of Article 164 meant date on which the decree was signed by the Judge of the lower Court and as the decree was signed on 20-12-1949 the application was preferred within time. The expression 'Date of decree' is used in some Articles of the Act commencing from Article 151 and it means the date on which the judgment was pronounced, although in certain circumstances an appellant may be entitled under section 12 of the Act to exclude the time intervening between delivery of judgment and the signature of the decree.
This view of the law is taken by other High Courts in India having regard to the imperative provisions of Order XX, rule 7 of the C. P. C. I may only refer to the latest pronouncement by the Assam High Court in Kantimal v. Mohan Nath AIR 1949 Assam 23, under Article 152 of the Act. The contrary view expressed in some decided cases Ram Asray Singh v. Sheonandan Singh AIR 1916 Pat. 267; Khan Chand v. Gurdit Singh AIR 1936 Lah. 976; Pandu v. Rajeshwar AIR 1924 Nag. 271 with due deference cannot be followed by this Court. The view in some of those cases has been reconsidered (view in Khan Chand v. Gurdit Singh AIR 1936 Lah. 229 and the view in Pandu v.
Rajeshwar AIR 1924 Nag. 271 was explained in Vmda v. Rupchand AIR 1927 Nag. 1, also see Sagar Mal v. Lachmisaran AIR 1923 Pat. 129, in which contrary view was expressed).
The cases relied on by the learned Advocate for the appellant (Balappa v. Dymappa AIR 1940 Bom. 415; Saratchandra v. S. Rait Kania AIR 1939 Pat. 135, are reconcilable with the principle of law enunciated above. This contention therefore fails.
Second contention was that exclusion of time intervening between the date on which judgment was pronounced and the date on which the decree was prepared and signed should be excluded and if that exclusion was made, the application was filed in time. Subsection (2) of section 12 of the Act provides for exclusion of time requisite for obtaining a copy of the decree in computing period of limitation for proceedings mentioned in it and the time requisite for obtaining a copy is under certain circumstances inclusive of the period intervening between the date on which judgment was pronounced and the date on which decree was actually signed.
But this exclusion can only be had in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment specifically mentioned in Sub--section (2) of section 12 of the Act and not for an application for setting aside the decree passed 'ex parse' not so specifically mentioned. The exclusion of time requisite is allowed on the principle that the appellant or the applicant as the case may be has to obtain a copy of the decree or order though not necessarily for annexure with the memo. Of appeal or application Keshar Sugar Works v. R. C. Sharma AIR 1951 All. 122) and by not specifically including a proceeding for setting aside a decree passed `ex parse' in section 12 of the Act, it was intended that a defendant served with summons in a suit had not to obtain a copy of the decree passed `ex parte' to enable time to apply for setting it aside.
Moreover, for obtaining exclusion of time under section 12 of the Act it is necessary that an application for a copy be made and though it is a question not free from doubt that application for a copy should be made within the period prescribed for making an application or preferring an appeal, it follows from what it stated above that an application for a copy should be made at least before an appeal or an application as the case may be is filed. Hence, the contention for exclusion of time under section 12 of the Act fails and it is notnecessary to consider what time was requisite having regard to the fact that an application for a copy was not made in this case before the application for setting aside the decree passed ex parte was filed."
I am in respectful agreement with the above view taken by the learned Judicial Commissioner, that the date of the decree for the purpose of Article 164 of the Limitation Act, for setting aside an ex parte decree is the date of the judgment and not the date of the signing of the decree, for the reason that a defendant is not required under any provision of law to file a copy of the decree with an application under Order IX, rule 13, C. P. C.
13. Mr. Asif Zabidi, the learned counsel for the plaintiff has relied upon the case of Gokaldas Mahadev v. Dilsukhram K. Bhatt, referred to herein. Above for the purpose that while considering an application under Order IX, rule 13, C. P. C. Merits or demerits of the case are not relevant. I am in v respectful agreement with the above view of Lobo, J. Who had delivered the above judgment:
14. As the defendant has not filed any application under section 5 of the Limitation Act, the question of extension of time under the above provision of law does not arise. However, I have considered this aspect as well, and I am afraid that the defendant cannot even avail of section 5 of the Limitation Act as the same has not been made applicable to an application under Order IX, rule 13, C. P. C. In this regard I may refer to the case of P.I Singh v. Harram Singh (AIR 1927 Lah. 342) and the case of Abed A.I v. Prafulla Kumar Sen (AIR 1952 Cal. 544). In the above two cases it has been held that section 5 of the Limitation Act is not applicable to an application under Order IX, rule 13, C. P. C.
Unless it is made applicable. I am not aware of any provision which has made section 5 of the Limitation Act, applicable to an application under Order IX, rule 13, C. P. C. In the High Court of Sind.
15. Before parting with the above discussion I may refer to the case of Wali and others v. Manik A.I (PLD1965SC651) relied upon by the learned counsel for the defendant referred to hereinabove in the earlier part of this judgment. In the above case their Lordships of the Supreme Court of Pakistan while discussing the provisions of Order XXII, rules 2, and 11 C. P. C. Relating to abatement of a suit, were pleased to observe that the law favours adjudication on merits. I am in respectful agreement with the above observation but I cannot allow an application on the basis of the above principle if the application is time-barred.
The above application is accordingly dismissed with no order as to costs.