Muhammad Iqbal vs Adj etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

F.A.O. No.83 of 2018 Muhammad Iqbal Versus

Additional District Judge, Burewala, District Vehari & another

JUDGMENT

Date of hearing: 30.09.2026.

Appellant by: Mr. Mumtaz Ahmad Bhatti, Advocate.

Respondents by: Mr. Awais Ahmad Qazi, Additional Advocate General.

Respondent No.2 ex parte.

MUHAMMAD SAJID MEHMOOD SETHI, J.:- Through this appeal, the appellant has called in question the order dated 07.06.2018 passed by the learned Additional District Judge, Burewala, whereby his application for setting aside the ex parte proceedings dated 19.10.2017 and ex parte judgment and decree dated 24.10.2017, passed in a suit for recovery of Rs.15,00,000/- instituted under Order XXXVII, C.P.C., was dismissed in limine as barred by limitation.

2.Briefly, respondent No.2 instituted a suit for recovery of Rs.15,00,000/- against the appellant on the basis of cheque No.2337718, allegedly issued in lieu of a loan. Upon service, the appellant entered appearance and filed an application for leave to appear and defend the suit, which was allowed on 16.01.2016 subject to furnishing surety. The appellant furnished the surety and filed his written statement. Seven issues were thereafter framed on 01.03.2016. Respondent No.2 produced three witnesses, including himself, and the cheque was brought on record as Ex.P-1. All three witnesses were cross-examined by learned counsel for the appellant. After completion of the plaintiff’s evidence, the matter was fixed for the appellant’s

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evidence. The appellant sought to produce his evidence through a Special Power of Attorney. Respondent No.2 objected thereto and sought the appellant’s personal appearance. The learned Trial Court accepted the objection and directed the appellant to appear personally. According to the impugned order, despite repeated opportunities, including a last opportunity, the appellant failed to appear and was proceeded against ex parte on 19.10.2017. The suit was thereafter decreed ex parte on 24.10.2017.

The appellant filed an application for setting aside the ex parte proceedings and judgment and decree on 17.05.2018. The learned Trial Court dismissed the same vide impugned order dated 07.06.2018, holding that the application was governed by Article 164 of the Limitation Act, 1908 and had been filed after expiry of the prescribed period of thirty days. It was further noticed that no application for condonation of delay had been filed.

3.Learned counsel for the appellant contends that the learned Trial Court erred in applying Article 164. He adds that as the original suit was instituted under Order XXXVII, C.P.C., the application was in substance one under Order XXXVII Rule 4, C.P.C.; therefore, in the absence of a specific period of limitation, Article 181 of the Limitation Act, 1908 providing three years, was attracted. He further contends that the appellant was not duly summoned for personal appearance, that his Special Power of Attorney was objected to only after the plaintiff’s evidence had been recorded, and that he was consequently deprived of an opportunity to produce his evidence.

4.The controversy essentially turns upon two questions: first, whether the application filed by the appellant was governed by Article 164 or Article 181 of the Limitation Act, 1908; and second, if Article 164 applies, whether any legally sustainable ground has been shown to overcome the period prescribed therein.

The law of limitation rests on public policy, expressed in the maxims interest reipublicae ut sit finis litium (it is in the public interest that litigation should come to an end) and vigilantibus non

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dormientibus jura subveniunt (the law assists the vigilant, not those who sleep over their rights). On expiry of the prescribed period, a vested right accrues to the successful party to treat the decree as final. Section 3 of the Limitation Act, 1908 therefore obliges the Court to take notice of limitation and to dismiss a time-barred application even if limitation has not been set up as a defence. Relying on authoritative pronouncements of the Supreme Court, this Court reiterated in Muhammad Akhtar v. Abdul Rehman and another (2022 CLC 1871) that the law of limitation is substantive law and not a mere technicality. The learned Trial Court was, therefore, entitled to examine limitation at the threshold.

Two articles are in competition here. Article 164 prescribes thirty days for an application by a defendant to set aside an ex parte decree, reckoned from the date of the decree or, where summons were not duly served, from the date on which the applicant acquired knowledge of the decree. This was reiterated by the Supreme Court in Capital Development Authority (CDA), through Chairman, Islamabad and others v. Dr. Sheikh Muhammad Shoaib Shafi and another (2026 SCMR 1033). Article 181, by contrast, is the residuary article and applies only where no other article of the Schedule provides a period. A specific provision prevails over a general one, so if the application falls within Article 164, Article 181 has no room to operate. The question is thus not which article is more favourable to the appellant, but into which class of proceeding his application falls, and that depends on the relief actually sought and the procedural position of the applicant.

The appellant’s reliance upon Order XXXVII Rule 4, C.P.C. proceeds from the assumption that every ex parte decree passed in a suit originally instituted under Order XXXVII necessarily attracts that provision. Such proposition, in this broad form, cannot be accepted. The relevant consideration is the procedural stage and status of the defendant when the ex parte decree came to be passed. The distinction is apparent from this Court’s judgment in Muhammad Yousaf v.

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Shehbaz Khan [2026 LHC 1669 (LHC Website)], where the defendant had not entered appearance before the ex parte decree and subsequently sought permission to appear and defend the summary suit. It was in that factual setting that the application was held to fall within Order XXXVII Rule 4, C.P.C. and Article 181 of the Limitation Act. The same distinction is also reflected in Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631) and Mst. Tahira Taj v. Hakim Shah (2011 CLC 950).

Conversely, in Secretary Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan (2008 SCMR 287), the Hon’ble Supreme Court held that where the defendants had initially entered appearance and thereafter remained absent, their application for setting aside the ex parte decree was governed by Article 164. Likewise, in Muhammad Ismail and 3 others v. Mst. Waheedan and 16 others (2016 YLR 1646), where the defendants had entered appearance and filed their written statement but subsequently ceased to participate and were proceeded against ex parte, this Court held that Article 164 applied. The present case stands on an even stronger footing. The appellant not only entered appearance but obtained leave to defend, furnished surety, filed a written statement, participated in framing of issues and, through his counsel, cross- examined all three witnesses produced by respondent No.2. It was only thereafter, when the matter reached the stage of the appellant’s own evidence, that he failed to appear and was proceeded against ex parte.

5.The above sequence is decisive. The appellant cannot be placed in the same category as a defendant who never entered appearance in an Order XXXVII suit and against whom an ex parte decree was passed without participation in the trial. Once leave to defend had been granted and the appellant had filed his defence and substantially participated in the trial, the proceedings had moved into an ordinary contested trial. His subsequent absence did not restore the proceedings to their original summary stage. Consequently, the ex parte order dated 19.10.2017 was passed against a defendant who had already appeared

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and contested the suit. The remedy for setting aside the resulting decree was, therefore, referable to Order IX Rule 13, C.P.C., and the limitation applicable thereto was that prescribed by Article 164 of the Limitation Act, 1908. The principle enunciated in Asfandiar Khan (supra) and Muhammad Ismail (supra) applies with even greater force to the present facts. The appellant’s reliance upon Order XXXVII Rule 4 and Article 181 is, therefore, misconceived.

6.The appellant had initially referred in his application to Order IX Rule 3, C.P.C. and subsequently relied upon Order XXXVII Rule 4. Such erroneous reference to a particular provision is not, by itself, decisive. The Court is required to determine the true legal character of the relief sought from the substance of the proceedings. In the present case, the substance of the relief was setting aside of an ex parte decree passed after the appellant had already entered appearance and participated in the trial. The relief thus attracted Order IX Rule 13, C.P.C. and Article 164 of the Limitation Act, 1908. The ex parte judgment and decree was passed on 24.10.2017, and the thirty-day period expired on or about 23.11.2017. The application seeking its setting aside was filed on 17.05.2018, some 175 days beyond that period. Even where want of due service is asserted, the consequence, as noted in Dr. Sheikh Muhammad Shoaib Shafi (supra), is only a change in starting point of limitation; the prescribed period remains thirty days in either event.

7.Reckoning limitation from the date of knowledge is an exception. It rests on the principle that time should not run against a person who had no means of learning of the decree, and the burden of pleading and proving the date of knowledge lies on the person who claims the benefit. The appellant asserts that he was not duly summoned for personal appearance and did not know about the ex parte proceedings. This plea, however, does not disclose the necessary factual foundation to bring the application within thirty days of the alleged date of knowledge. No specific date of knowledge of the ex parte judgment and decree has been pleaded, nor is it stated from

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whom or through what event such knowledge was acquired, or why the application was thereafter filed on 17.05.2018. His assertion essentially is that he did not receive the summons or notice and that his Special Attorney did not inform him. Such general assertion, in the absence of a pleaded and supported date of knowledge, is insufficient. This conclusion is reinforced by the appellant’s own participation in the litigation. As observed in Messrs Lahore Art Press through its Proprietor, Muhammad Mohsin and another v. National Bank of Pakistan, Anarkali Branch, Lahore (PLD 1990 Lahore 300), where the defendants had already entered appearance before being proceeded against ex parte, the period of limitation under Article 164 was reckoned from the decree rather than from an alleged subsequent date of knowledge. The present appellant’s participation was considerably more extensive: he entered appearance, obtained leave to defend, filed his written statement and participated in the trial through counsel. His grievance, therefore, is not that he was unaware of the existence of the litigation; rather, it concerns his subsequent failure to personally appear when directed by the learned Trial Court.

8.Even assuming, for the sake of argument, that the appellant had a grievance regarding the requirement of personal appearance, that circumstance would not transform an application otherwise governed by Article 164 into one governed by Article 181. The nature of the remedy and computation of limitation are distinct questions. Nor did the appellant file any application under Section 5 of the Limitation Act seeking condonation of delay or furnish any specific explanation accounting for the entire period between the decree dated 24.10.2017 and the application dated 17.05.2018.

The Supreme Court in Dr. Sheikh Muhammad Shoaib Shafi (supra) has reiterated that a party seeking condonation of delay must furnish a plausible explanation constituting sufficient cause. Delay after expiry of limitation must be accounted for, and here no explanation has been offered for a period of some 175 days.

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9.The plea that the appellant was deprived of his right to produce evidence merely because respondent No.2 objected to the Special Power of Attorney after completion of his evidence is equally without substance. The fact that the appellant’s counsel had cross-examined the plaintiff’s witnesses did not amount to an admission that the appellant himself could necessarily tender his own evidence through an attorney. The learned Trial Court was competent to require his personal appearance, particularly where his evidence involved matters within his personal knowledge. The material on record further shows that repeated opportunities, including a last opportunity, were afforded to him, but he failed to appear.

The plea of being condemned unheard is, in these circumstances, not sustainable in the broad form in which it has been advanced. The appellant had a full opportunity to contest the claim of respondent No.2, exercised that opportunity by filing pleadings and participating in the trial, and cross-examined the plaintiff’s witnesses. What was lost was the subsequent opportunity to produce his own evidence after the learned Trial Court directed his personal appearance. The distinction is material.

10.The ex parte judgment dated 24.10.2017 further demonstrates that the decree was not passed merely on the basis of the plaint or cheque. Respondent No.2 produced oral evidence through three witnesses and documentary evidence, which had already been subjected to cross-examination on behalf of the appellant. The learned Trial Court thereafter considered the evidence and, in the absence of defence evidence, found the claim proved. Thus, no case of a decree passed without judicial consideration or evidence is made out from the record supplied. No specific piece of evidence, material document or finding has been identified which could displace the conclusion regarding limitation.

11.On the present record, the appellant was not a defendant who remained outside the proceedings until an ex parte decree was passed. He was an active participant in the litigation and was proceeded against

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ex parte only after failing to appear at the stage of his own evidence. The legal character of the resulting application was, therefore, governed by Article 164, not Article 181 of the Limitation Act, 1908. The application dated 17.05.2018 was filed beyond the prescribed period, and neither a legally sustainable plea of later knowledge nor sufficient cause for condonation of delay has been established.

12.For the foregoing reasons, no illegality or material irregularity has been demonstrated in the impugned order dated 07.06.2018 warranting interference in appellate jurisdiction. The appeal is accordingly dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*