Muhammad Yousuf vs Muhammad Shehbaz

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN

BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.504 of 2022 Muhammad Yousaf

Versus

Shehbaz Khan

JUDGMENT

Date of hearing: 10.03.2026.

Petitioner by: Ms. Aqsa Zahid, Advocate.

Respondent by: Mr. Shaukat Ali, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant revision petition, the petitioner has called in question the legality and propriety of order dated 21.03.2022 passed by the learned Additional District Judge, Multan, whereby the petitioner’s application seeking setting aside of ex-parte proceedings dated 09.11.2020 and ex- parte judgment and decree dated 30.01.2021, passed in a summary suit for recovery instituted on the basis of a promissory note, was dismissed primarily on the ground of limitation.

2.Briefly stated, the respondent instituted a suit for recovery of Rs.12,00,000/- against the petitioner under the summary procedure provided under Order XXXVII, C.P.C. on the basis of a promissory note and receipt allegedly executed by the petitioner. The record reflects that the petitioner did not enter appearance before the learned Trial Court within the time prescribed under law and, consequently, the Court proceeded against him ex-parte on 09.11.2020. Thereafter, ex- parte judgment and decree dated 30.01.2021 was passed in favour of the respondent. Subsequently, the petitioner moved an application seeking setting aside of the ex-parte proceedings and decree along with an application for leave to appear and defend the suit, asserting inter alia that he had never been duly served and that he came to know about the decree only during execution proceedings. The learned Trial

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Court, however, vide impugned order dated 21.03.2022 dismissed the said applications holding the same to be barred by limitation by applying Article 164 of the Limitation Act, 1908. Hence, this revision petition.

3.Learned counsel for the petitioner contends that the learned Trial Court gravely erred in applying Article 164 of the Limitation Act, 1908. She argues that the application filed by the petitioner was, in substance, one under Order XXXVII Rule 4, C.P.C. for setting aside an ex-parte decree passed in a summary suit. According to the learned counsel, no specific period of limitation has been prescribed for such an application and, therefore, the same is governed by the residuary Article 181 of the Limitation Act, 1908 which provides a limitation period of three years. Reliance has been placed upon the judgments reported as Habib Bank Limited v. Mussarat Ali Khan (PLD 1987 Karachi 86) and Tahir A. Khan v. Messrs United Air Travels Ltd. and others (2004 YLR 416). Conversely, learned counsel for the respondent has supported the impugned order and contended that the application was rightly dismissed as time-barred.

4.Arguments heard. Record perused.

5.It is an admitted position that the suit in question was instituted under the summary procedure prescribed by Order XXXVII, C.P.C., and that the petitioner never entered appearance prior to the passing of the ex-parte decree. The application subsequently filed by the petitioner sought setting aside of the ex-parte proceedings and decree as well as permission to appear and defend the suit. In such circumstances, the true nature and legal character of the application assume decisive importance for determining the applicable provision of limitation.

6.The learned Trial Court proceeded on the premise that the application was governed by Article 164 of the Limitation Act, 1908 which prescribes a period of thirty days for setting aside an ex-parte decree. However, such view does not appear to be in consonance with the settled legal position governing summary suits under Order XXXVII, C.P.C. It is by now well settled that proceedings under Order

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XXXVII constitute a special procedure and the remedy available to a defendant against whom an ex-parte decree has been passed in such proceedings is provided under Order XXXVII Rule 4, C.P.C., which empowers the Court to set aside the decree upon the defendant demonstrating special circumstances and upon such terms as the Court may deem just.

7.In the considered view of this Court, no specific period of limitation has been prescribed under the Limitation Act, 1908 for an application seeking setting aside of an ex-parte decree passed in a summary suit under Order XXXVII, C.P.C. The nature of such proceedings is distinct and governed by a special procedure, and the absence of any express provision in the Schedule necessarily attracts the residuary Article 181 of the Limitation Act, which provides a limitation period of three years from the date when the right to apply accrues, ordinarily from the date of knowledge. This position flows from a proper construction of the statutory scheme and the special character of summary suits. Reliance in this regard is placed upon Muhammad Ishaque Khan v. Naveed Ahmad (2004 CLC 1640), Naseer Ahmad v. Muhammad Mushtaq (2006 MLD 1936) and Tariq Jamil Bangash and another v. Attaullah Khan Khattak (2015 MLD

8.It further appears that Article 164 of the Limitation Act, which governs applications for setting aside ex-parte decrees in ordinary civil proceedings, has no application to cases arising out of summary suits where the defendant had not entered appearance prior to the passing of the decree. The remedy available in such circumstances is exclusively under Order XXXVII Rule 4, C.P.C., which constitutes a self- contained mechanism and cannot be equated with proceedings under Order IX Rule 13, C.P.C. Consequently, treating such an application as one falling under Article 164 amounts to a misdirection in law, whereas the correct provision governing the field remains Article 181 of the Limitation Act. This principle stands consistently affirmed in Sultan Ahmad Khan v. National Bank of Pakistan and 2 others [1986 MLD 13(2)], Sultan Ali v. Mir Shabir Ahmed Badini and others (PLJ

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2022 Quetta 87), Hameed Ullah v. Ali Arshad and another (2022 CLC 340), Binyameen Khalil v. Riaz Ahmed Rahi (2014 CLC 105) and Abdul Waheed v. Riasat Ali (2008 MLD 1684).

9.This Court is also of the view that the remedy provided under Order XXXVII Rule 4, C.P.C. is substantive in nature and empowers the Court to set aside even an ex-parte decree passed on merits, provided the defendant is able to demonstrate the existence of “special circumstances.” This requirement underscores the distinct nature of summary proceedings and differentiates them from ordinary ex-parte matters, thereby justifying the application of the broader limitation framework under Article 181. It also follows that Article 164 would only be attracted in cases where the defendant had already entered appearance and the matter proceeded as an ordinary suit. Support for this proposition is drawn from Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631) and Mst. Tahira Taj v. Hakim Shah (2011 CLC 950).

10.Applying the above principles, this Court finds that the petitioner had not entered appearance before the learned Trial Court prior to the passing of the ex-parte decree, and thus his application, in substance and effect, was one under Order XXXVII Rule 4, C.P.C., governed by Article 181 of the Limitation Act. The learned Trial Court, therefore, fell into patent error in applying Article 164 and in dismissing the application solely on the ground of limitation, without examining whether the petitioner had been able to demonstrate any “special circumstances” warranting the setting aside of the ex-parte decree. Such an approach reflects a clear misapplication of law and failure to exercise jurisdiction vested in the Court in accordance with law.

11.For the foregoing reasons, this revision petition is allowed. The impugned order dated 21.03.2022 is set aside. The ex-parte proceedings dated 09.11.2020 and ex-parte judgment and decree dated 30.01.2021 are also set aside. The matter is remanded to the learned Trial Court, where the application for leave to appear and defend the suit already filed along with the application for setting aside the ex-

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parte proceedings / judgment and decree, shall be deemed to be pending and decided on merits strictly in accordance with law, after providing the parties an adequate opportunity of hearing.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*