' This Revisional Application under section 115, C.P.C. Calls in question the order dated 3-4-2000 passed by learned Additional Sessions Judge, Karachi rejecting the appeal filed by the applicant against the respondent wherein the order, dated 28-9-1999 passed by the Court of VIth Civil Judge, Karachi rejecting the application under Order IX, Rule 13, C.P.C. Filed by the applicant was impugned.
2. The background of this case as averred by the parties in their pleadings is that the parties were married on 4-12-1987 and out of the wedlock a baby namely Hina was born. On 12-6-1994 the respondent divorced the applicant and the custody of minor remained with the applicant. In the year 1994 the respondent filed a suit against the applicant (Suit No,627 of 1994) for return of golden ornaments, prize bonds and money, allegedly taken away by the applicant. The applicant resisted the suit and filed written statement denying the claim of respondent. During the proceedings the respondent/plaintiff filed an application under Order VIII, rule 5 read with Order XII, rule 6, C.P.C.
Pleading that the applicant/defendant had denied the claim of respondent without specific or definite denial as such his claim shall be treated to have been admitted. Learned trial Court by its order, dated 18-5-1998 decreed the suit as prayed under Order XII, Rule 6, C.P.C. The applicant, on 29-8-1998, moved an application under Order IX, rule 13, C.P.C., supported by an application under section 5 of the Limitation Act for setting aside the judgment and decree. Learned trial Court namely VIIth Civil Judge, Karachi Central heard the matter and dismissed the applications as hopelessly time-barred. It would be interesting to point out that at the stage of hearing of the previous application only the advocate for respondents had argued the matter and the advocate for applicant had remained absent; and at the stage of hearing of subsequent application the advocate for applicant made arguments, while the advocate for respondent did not. However, the applicant preferred a civil miscellaneous appeal against the last mentioned order of the trial Court.
The Appellate Court heard learned counsel for both the parties and dismissed the appeal upholding the impugned order. In this Court Mr. Rehan-ul-Hassan Farooqui, Advocate made arguments while advocate for applicant remained absent and subsequently submitted written arguments.
3. With regard to f2ctual aspects it would be advantageous to point out that the parties were also involved in Guardians and Wards Case No,667 of 1994 which was decided in favour of the applicant, and from the written arguments of learned counsel for the applicant it transpired that Guardians and Wards Appeal No,46 of 1997 was pending in the Court of IVth ADJ, Karachi East.
There was also a suit for recovery of maintenance of minor bearing Family Suit No,573 of 1995 which was decreed in favour of applicant. Besides, the respondent had also filed Constitutional Petition in High Court bearing No,115 of 1994. In this way the parties had indulged in utilizing all provisions of the law for prosecuting their claims.
4. Instantly the contention raised on behalf of the applicant was that initially no notice of the application under Order VIII, Rule 5 with Order XII, Rule 6, C.P.C., was served on the applicant or her advocate, therefore, the order passed on that application without notice to the applicant was of no legal effect. Secondly, the trial Court had wrongly drawn conclusion that the applicant in her written statement had not specifically denied the claim of respondent as in para. 4 of the written statement the applicant had stated that the contents of para. 4 of the plaint were vehemently denied. It was further contended that the suit was decreed without hearing the applicant although the respondent failed to enclose any document with the plaint to show the purchase of said golden ornaments and that no income certificate or details of income were furnished by the applicant to show his earnings. Regarding the delay in filing the application under Order IX, rule 13, C.P.C. It is pleaded that the applicant had no knowledge of the order, dated 18-5-1998 decreeing the suit of respondent until 22-8-1998 when the respondent himself informed the applicant when she was present in the Court of IVth ADJ, Karachi-East regarding Guardians and Wards Appeal No,46 of 1997.
5. On behalf of the respondent it was argued that there are concurrent findings of two Courts below and that the application under Order IX, Rule 13, C.P.C. Was hopelessly time-barred. Learned counsel referred to para. 6 of the order of learned ADJ, wherein it has been noted that the applicant was afforded sufficient opportunities and then service was held good on 31-3-1998, whereafter, the matter was adjourned to 4-4-1998 and then to 22-4-1998 and the suit was decreed on 18-5-1998.
Learned counsel argued that the applicant had filed her written statement and the Court had taken due steps towards service of the applicant, therefore, the application under Order IX, Rule 13, C.P.C. Which was barred by time was rightly disallowed.
6. As to the question of passing the judgment and decree, the fact remains that service of application under Order VIII, Rule 5 read with Order XII, Rule 6, C.P.C., could not be effected on the applicant conveniently and therefore, the trial Court was constrained to record the statement of bailiff and only thereafter service was held good. Even thereafter the matter was adjourned at least twice. The applicant, however, has taken the plea that she did not know about passing of the order on the application under Order VIII, Rule 5, C.P.C. The copy of endorsement; dated 17-1-1998 made by bailiff (filed by Advocate for applicant), shows that the address is the same as in the instant Revision Application and the applicant had avoided to accept the notice. It is strange to find a written argument from the learned counsel that it was notice of main suit and not the Miscellaneous Application. This is a misconceived plea as the applicant had long back in the month of January, 1995 filed her written statement, there was therefore, no occasion to issue summons of the suit.
7. It was strenuously argued that the concurrent findings of, the Courts below could not be upset in revisional proceedings. This argument is to be considered in the perspective of the settled legal position that in given circumstances for which the guidelines have very often been illustratively stated by the superior Courts, the concurrent findings on a point of fact and/or law can be upset if the order suffers from jurisdictional defect, illegality and material irregularity and is perverse. For instance the authorities; Riaz Hussain v. Board of Intermediate and Secondary Education (2000 SCM R 661), Haji Rehmdil v. The Province of Balochistan (1999 SCM R 1060) and Mst. Naziran Begum v.
Mst. Khurshid Begum (1999 SCM R 1171) may be quoted with advantage on this point.
8. Coming back to the instant case it may he mentioned that both the Courts below have taken an erroneous view while deciding the point of limitation with respect to filing of the application for setting aside the ex parte judgment and decree passed in pursuance of the order, dated 18-5-1998.
The trial Court declined to set aside the above order on the ground that the application under Order IX, Rule 13. C.P.C. Was filed beyond the period of 30 days and the explanation for condonation of the delay was not convincing; and the 1st Appellate Court also affirmed the same. Both the Courts below had proceeded on the premise that the application, dated 29-8-1998 filed under Order IX, Rule 13 read with section 151, C.P.C. For setting aside the ex parte judgment and decree, dated 18-5-1998 fell within the ambit of Article 164 of the Limitation Act, where a period of 30 days is prescribed for filing of such application, which period had already expired and the ground for condonation of delay was also not satisfactory, therefore, it was barred by time.
9. On a minute examination of the legal aspect it will be conceived that the order, dated 18-5-1998 was passed not in consequence of absence of the applicant on the day fixed in the summons for first hearing of the suit, as that stage had already passed away since applicant had filed her written statement, but the ex parte judgment was passed subsequent to service of notice of application under Order VIII, Rule 5 and Order XII, Rule 6, C.P.C. That, too, after two adjournments. In this situation the rule laid down by the Honourable Supreme Court in Rehman Weaving Factory v.
Industrial Development Bank of Pakistan (PLD 1981 SC 21) would apply. It would be of advantage to quote the relevant observations which run: "If a 'notice' which was required by natural justice or by law to be served on a defendant to afford him an opportunity for appearance on an adjourned hearing and it was not duly served on him, then his case would not be governed by Article 164, because it would not be a case of first hearing for which `summons' was to be issued. This interpretation of Article would also permit a judicious interactions of first and third columns thereof; in that, it would govern only those applications which seek the setting aside of that ex parte decree which has been passed after the service (or non- service) of the 'summons' issued for first hearing visualised under Order IX, Rule 6(1)(a). The word 'summons' is not only the key to the interpretation of third column, but it will also govern the entire article. When any cause is shown for non-appearance at the first hearing whether non-service of 'summons' or any other sufficient cause, e.g. An accident on the way, an act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of the knowledge of the decree, when the 'summons' was not duly served; otherwise from the date of the decree. And the remaining cases, other than those of first hearing, would not be governed by Article 164.
' 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 the right to apply."
10. On a plain understanding of the above dictum it would appear that all cases other than those decided ex parte on the first hearing after service of summons or even when summons was not duly served on defendant would not be governed by Article 164 of Limitation Act and the application for setting aside such judgment and decree would be governed by residuary Article 181 of the Limitation Act.
11. It would be not out of the place to mention at this stage that the proposition laid down by the Honourable Supreme Court in above case has been interpreted by different Courts in different manner. The Peshawar High Court in the case Messrs China Petroleum Engineering Construction Corporation (CPECC) v. Messrs R.J. Engineering and Management Consultants (1999 CLC 117) although placed reliance on the above rule enunciated by the Honourable Supreme Court, but repelled the contention raised on behalf of the defendant that Article 181 of the Schedule to Limitation Act would apply to a case which did not fall under Order IX, Rule 6, C.P.C. But was covered by Order XVII, Rule 2, C.P.C., on the ground that Article 181 of Limitation Act would apply only to those cases where no specific time was prescribed elsewhere in the Limitation Act.
12. The Supreme Court of Azad Jammu and Kashmir, Farid Khan v. Gulzar Khan (PLD 1985 SC (AJ&K)
74) referred to the above ruling, (PLD 1981 SC 21) and disagreed with the reasoning recorded therein, observing as under: "We have given our deep thought to the point involved and have carefully examined the relevant provisions. With great respect, we are unable to agree with the process of reasoning and the way 'Article 164 of the Limitation Act has been construed in that case. Before listing our reasons for disagreement, we would first like to state that rule 6(1)(a) of Order IX of the Code of Civil Procedure as applicable in Azad Kashmir does not contain the part 'and pass a decree without recording the evidence'. That has been incorporated in rule 6(1)(a) by Law Reforms Ordinance, 1972 and is applicable to Pakistan only."
13. Lahore High Court while applying the above-cited decision of Supreme Court took the following view in the case, Mst. Sardar Begum v. Mst. Chiragh Bibi (1989 CLC 825): "As held by the Supreme Court in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v.
Industrial Development Bank of Pakistan PLD 1981 SC 21 Article 164 applies only where an ex parte decree is passed against the defendant on account of his failure to appear on the date specified in the summons despite service. If, however, the defendant having once appeared, absents himself oil any subsequent date and an ex parte decree is passed against him, the application for setting it aside will fall not under Article 164 but under the Article 181 which prescribed a period of three years.
In this view of the matter the dismissal of the application for setting aside ex parte decree by the Additional District Judge on the ground of limitation is, not sustainable."
14. The view taken by Lahore High Court (supra) seems to be based on correct application of the principle laid down by the Honourable Supreme Court in Rehman Weaving Factory's case. In the instant case the ex parte judgment/decree was not passed on the first hearing within the meaning of sub-rule (1) of Rule 6 of Order IX, C.P.C., as the defendant had already filed his written statement pursuant to the service of summons upon him. The proceedings were taken by the trial Court after issuing notice of the application under Order VIII, Rule 5 and Order XII, Rule 6, C.P.C. Which service was held good but then the case was adjourned twice. Consequently, in view of principle laid down in aforecited case of Honourable Supreme Court Article 181, and not Article 164, of the Limitation Act was applicable to the case, and as such the application for setting aside the ex parte decree could be filed within three years of the date on which the right to apply accrued. Accordingly, the application for setting aside the ex parte decree instituted by the applicant within about 4 months of the date of decree was well within time and the view taken by the trial Court as also the Appellate Court that it was barred by time was absolutely contradictory to the dictum laid down by the Honourable Supreme Court and the applicant was thus deprived of his valuable right due to wrong application of law by the Courts below. The trial Court and the 1st Appellate Court had thus committed illegality in dismissing the application of the applicant on the ground of point of law.
This has resulted in miscarriage of justice and despite the fact that there are concurrent findings on a point of law but looking to the patent illegality committed as regards the question of limitation which is the sole deciding factor in both orders, it would be expedient in the interest of justice to exercise revisional jurisdiction in such a matter.
15. In consequence of the above discussion the revisional application is allowed and the orders passed by the Courts below are set aside and the case is remanded to the trial Court for proceedings to decide afresh the application under Order IX, Rule 13, C.P.C. Read with section 151, C.P.C. Filed on behalf of the applicant/defendant and taken into consideration the merits of the case as to whether the ex parte judgment and decree be set aside or not. Cost of this revision be borne by tile parties themselves.