Muhammad Shoaib Vs Aminullah Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Civil Revision No.130-D/2025 with Civil Misc. Application No.175-D/2025

Muhammad Shoaib Vs. Aminullah Khan

For petitioner: Sheikh Iftikhar-ul-Haq Advocate For respondent: Muhammad Nasrullah Eesar Advocate Date of hearing 18.09.2025

JUDGMENT

INAMULLAH KHAN, J.- Muhammad Shoaib, the petitioner, has filed this petition under Section 115 of the Code of Civil Procedure (Act-V) 1908, to set aside the Order dated 09.07.2025 passed by the learned Additional District Judge-VI D.I.Khan, whereby his appeal against the order dated 20.11.2024 of the learned Civil Judge-III D.I.Khan, was dismissed.

2.Concise background of this petition is that the respondent instituted a recovery suit against the petitioner. After service of summons, petitioner attended the Court through his duly appointed special attorney but thereafter failed to appear and as such he

was placed and proceeded ex-parte vide order dated 24.01.2023. Ex-prte evidence of the respondent was recorded and upon conclusion of trial, the learned trial court passed an ex-parte decree dated 16.03.2023 in favour of respondent. On 10.07.2024, the petitioner filed an application for setting aside ex-parte decree followed by a petition for condonation of delay. Both the applications were contested by the respondent. The learned Civil Judge-III D.I.Khan, after hearing arguments on the applications, dismissed the same vide order dated 20.11.2024. The petitioner then filed an appeal, which too was dismissed vide Judgment dated 09.07.2025. Now aggrieved of the findings of both the learned courts below relevant to dismissal of his application for setting aside ex-parte decree, the petitioner has approached this court through the instant revision petition.

3.Arguments heard and record gone through.

4.The record shows that the petitioner initially attended the learned trial court through his duly appointed attorney and appointed a counsel.

Subsequently, his attorney and counsel omitted appearance, and thus he was placed ex-parte. Ex-parte

proceedings culminated into ex-parte decree dated 16.03.2023. Petitioner then filed application for setting aside ex-parte decree on 10.07.2024. with delay of 01Year—03Months—24Days. The petitioner in his applications for setting aside ex-parte decree and condonation of delay contended that he left for Tableegh and his attorney did not attend the Court. The petitioner cannot seek exception from the acts and omissions on the part of his attorney. It is settled that the principal is legally bound by the acts of his agent.

5.Learned counsel for petitioner, during course of arguments, argued that as petitioner had put appearance before the learned trial court, therefore, Article 164 of the Limitation Act, 1908, does not apply rather his application does fall within the definition of ‘other applications’ for the purpose of limitation and in this regard, residuary Article 181 of the Limitation Act, 1908, provides three years period, and as such, the same was well within the stipulated time. But this court is not in agreement with the said argument as Article 164 does apply to the application of petitioner for setting aside ex-parte decree. In the case of Honda Atlas Cars

(Pakistan) Ltd.1, both the parties filed their respective suits against each other. Both the suits proceeded side- by-side and after filing written statements in each the suit, issues were framed by the trial Court. During proceedings, Honda Sarhad Pvt. Ltd. did not attend the Court which resulted in dismissal of their suit while they were placed and proceeded ex-parte in the corresponding suit filed by Honda Atla Cars Pakistan Ltd. and then ex-parte decree was passed in the said suit.

The defendants Honda Sarhad Pvt. Ltd. then filed application for setting aside ex-parte decree which was dismissed by the trial court, and the Principal Seat of this Court disposed of the appeals filed by defendants Honda Sarhad Pvt. Ltd. However, august supreme Court set aside the judgment of this Court, and restored the dismissal order of trial court on the ground that the period provided for filing application for setting aside ex-parte decree is 30 days per Article 164 of the Limitation Act. The relevant excerpt from the referred judgment reads as under:

13.In view of above discussion, we are inclined to hold that as in

1 Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609)

the instant case, the respondents were duly served, they had fully knowledge about hearing of the case in view of the legal provisions noted hereinabove, as such for setting aside the order, dated 13th March, 2000, whereby their suit was dismissed in default as well as for setting aside ex parte decree dated 20th June, 2000, they ought to have approached the Court within 30 days in view of the provisions of Articles 163 and 164 of the Limitation Act and if there was delay in filing applications, they should have invoked the provisions of section 5 of the Limitation Act. Because, respondents had not approached to the Court for setting aside orders adversely operating against them, within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, learned trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside ex parte decree. Thus, the orders being proper and legal were not revisable by the

learned High Court in its appellate jurisdiction.

As a consequence of above discussion, both appeals are allowed, impugned judgment dated 24th June, 2003 is set aside and the judgment of the trial Court is restored with costs.

6.Learned counsel for petitioner has referred the judgment reported in the case of Rehman Weaving Factory (Regd.), Bahawalnagar2 wherein the view taken was that the application for setting aside the ex- parte decree was not covered by Article 164 of the Limitation Act, but it was governed by residuary Article 181, giving period of limitation as three years from accrual of right to apply. In the reported case ex-parte decree was passed on a date after initial service of summons but on fresh hearing after return of records from High Court and defendants having no notice of date of hearing when such decree was passed. It was in these circumstances that the Supreme Court expressed the view that the application made within three years of ex-parte decree was within time. Whereas, in the case 2 Rehman Weaving Factory (Regd.), Bahawalnagar vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21)

in hand, defendants appeared before learned trial court through their counsel, and thereafter, they absented themselves and ex-parte decree was passed against them. Thus, having knowledge of the pendency of suit, an application for setting aside ex-parte decree had to be filed within 30 days after ex-parte decree under Article 164 of the Limitation Act.

7.In the case of Shahid Pervaiz alias Shahid Hameed3 the defendant joined proceedings before the trial Court and afterwards on his absence an ex-parte decree was passed. Defendant after four months filed application for setting aside ex parte decree which application was dismissed being time-barred. Article 164 of Limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioner/defendant had participated in the proceedings before the trial Court.

8.The Honourable Supreme Court in another case titled Secretary Education Department, Government of N.-W.F.P., Peshawar and others4, while reiterating 3 Shahid Pervaiz alias Shahid Hameed vs. Muhammad Ahmad Ameen 2006 SCMR 631 4 Secretary Education Department, Government of N.-W.F.P., Peshawar and others Vs. Asfandiar Khan (2008 SCMR 287)

the same view as expressed in the supra quoted case of Shahid Pervaiz alias Shahid Hameed, was pleased to observe:

Since it was well within the knowledge of petitioners that suit was pending against them and were declared ex parte as such Article 164 of Limitation Act would be applicable in their case whereby period to move application for condonation of delay is 30 days.

9.In a similar matter, reported in case of Government of N.-W.F.P. through Collector, Land Acquisition, Abbottabad and 3 others5 this Court dismissed the application for setting aside ex-parte decree filed by defendants after putting their appearance before the trial Court. The relevant excerpt from the judgment reads as under:

44.In the present case there is no explanation, worth the name, as to why did the appellants suddenly disassociate themselves from the proceedings on 13-9-1992 nor have

5 Government of N.-W.F.P. through Collector, Land Acquisition, Abbottabad and 3 others5 Vs. Mst. Surryia Begum (PLD 1995 Peshawar 53)

they appended any application under Article 5 of the Limitation Act, 1908 for the condonation of delay. In our judgment, it is not possible for us to read the provisions of Article 181 of the Limitation Act, 1908 in the manner it was suggested by the learned Assistant Advocate-General. On the other hand, Article 164 of said Act means, what it says, in language which could not be plainer.

10.In line with the ratio of above referred judgment of the august Apex Court, this court in the case of Fazal Karim and four others6 upheld the judgment of revisional court whereby application for setting aside ex-parte decree — filed by defendants who failed to attend the trial court after filing written statement — was dismissed being filed after the period provided

11.Again, this Court in the reported case of Nisar7, while dealing with the application for setting aside ex- 6 Fazal Karim and 4 others Vs. Hussan Din and 8 others (2019

MLD 1082)

Nisar Vs. Said Qamar (late) through LRs and others (2023

MLD 1870)

parte decree filed by a defendant after his initial appearance before the trial court, has held:

11.It is fully established from the record that the petitioner had knowledge of the lis against him. As such, his application would be covered by Article 164 of the Act of 1908, which provides 30 days limitation for filing such an application. His application was time barred for four months and was also not supported by any application for condonation of delay.

12.Another argument of the learned counsel for petitioner that the date, on which the petitioner was placed and proceeded ex-parte, was not a date of hearing, is only a misconception as the date 24.01.2023, fixed for filing written statement, was a date of hearing.

Both the learned courts below have rightly dismissed the application for setting aside ex-parte decree.

13.In the nutshell, impugned Judgment/orders of both the learned courts below are in accordance with law and there is no misreading or non-reading of the record or law on the subject, rather the same are well

reasoned, therefore, upheld, and resultantly, this revision petition having no merit, stands dismissed with listed CMA. Parties are left to bear their own cost.

Announced.

(*M/Subhan) Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Inamullah Khan