Noor Jamal Vs Muhammad Shakoor

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Civil Revision No.208-D/2025 with Civil Misc. Application No.283-D/2025

Noor Jamal Vs. Muhammad Shakoor

For petitioner: Muhammad Mohsin Ali Advocate For respondent: Mr. Ehsan-ul-Haq Malik Advocate Date of hearing 21.01.2026

JUDGMENT

INAMULLAH KHAN, J.- Through the instant petition filed under Section 115 of the Code of Civil Procedure, 1908 (Code), the petitioner has called in question the Order/Judgment dated 27.10.2025 passed by the learned Additional District Judge-III, D.I.Khan, whereby application for restoration of the earlier petition for setting aside ex-parte Judgment & Decree was dismissed with cost of Rs.10,000/-.

2.Relevant facts of the case are that the respondent No.1 filed a suit for recovery of Rs.33,00,000/- against the petitioner under the provisions of Order XXXVII CPC. The petitioner after the service of summons, filed

application for the grant of leave to appear and defend the suit which was allowed conditionally, with the direction to submit surety bond with his written statement. After that he evaded appearance before the trial court, and as such, placed and proceeded ex-parte vide order dated 14.10.2021. The ex-parte evidence of respondent (then plaintiff) was recorded and finally the suit was decreed vide ex-parte judgment & decree dated 26.01.2023. The petitioner on 07.12.2023 filed an application for setting aside ex-parte proceedings and decree; but his application was dismissed in default of the appearance of petitioner vide order dated 24.05.2024.

3.Subsequently, on 18.12.2024 petitioner filed another application for setting aside ex-parte proceedings and decree, however, the same was withdrawn vide order dated 11.10.2025. Petitioner then filed an application dated 11.10.2025 for restoration of the earlier application dated 07.12.2023 and the same was dismissed vide Order dated 27.10.2025. This order has been assailed in the instant revision petition.

4.Arguments heard and record perused.

5.Perusal of the record makes it clear that petitioner after attending the court and getting leave to appear and defend the suit, evaded his appearance and even did not file the surety bond in compliance of the leave granting order. He then come up with application dated 07.12.2023 for setting aside ex-parte decree which was dismissed for non-prosecution. He once again stepped in the Court with second application dated 18.12.2024 for setting aside ex-parte decree which was later-on withdrawn by him vide order dated 11.10.2025, and then on 11.10.2025 filed present application for restation of the application dated 07.12.2023. It is a settled principle of law that technicalities should not be let in the way to dispensation of justice and discretion should be exercised to favour the decision on merits. However, in an appropriate case the Court may refuse to invoke its jurisdiction and powers if there is such negligence or omission on the part of a party to assert his rights as taken in conjunction with his conduct, causes prejudice to the opposite party. Of course, discretion must be exercised judiciously and reasonably and it would be particularly unjust to provide a remedy if a party”s conduct amounts to waiver. Similarly, a remedy may be

denied if a party”s conduct or neglect—even without a waiver—has placed the other party in a position where it would be unreasonable to assert that remedy. In either case, legal technicalities become most material.

6.The conduct of petitioner, as discussed in the preceding para, makes it crystal clear that how he pursued the suit and applications, and also shows his disobedience and indifferent demeanour towards the orders of the Court; thus, such like indolent person cannot seek favour of law, because law favours the vigilant and not the indolent. In this regard reliance is placed on the case titled “Sindh Irrigation and Drainage Authority vs. Province of Sindh and another” (2026 SCMR 190) wherein it was held by the Apex Court:

No doubt the law favours adjudication on merits, but simultaneously one should not close their eyes or oversee another aspect of great consequence, namely that the law helps the vigilant and not the indolent. At this juncture, it is quite relevant to quote a Latin maxim Leges vigilantibus non dormientibus subserviunt or Vigilantibus Non Dormientibus Jura Subveniunt which articulates that the law aids and assists those who are vigilant but not those who are sleeping or slumbering.

7.Therefore, petitioner cannot be granted further opportunity as he has already availed the opportunities without any positive response. Reliance in this regard can be placed on the judgment of august Supreme Court of Pakistan in the case titled “Rana Tanveer Khan vs.

Naseer-Ud-Din and others” (2015 SCMR 1401), wherein it has been held:

“It is clear from the record that the petitioner had availed four opportunities to produce his evidence and in two of such dates (the last in the chain) he was cautioned that such opportunities granted to him at his request shall be that last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the petitioner were squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial court. As far as the argument that at least his statement should have been recorded, suffice it to say that the eventuality in which it should be done has been elaborated in the latest verdict of this Court (2014 SCMR 637). From the record it does not transpire if the petitioner was present on the day when his evidence was closed and/or he asked the court to be examined; this has never been the case of

the petitioner throughout the proceedings of his case at any stage; as there is no ground set out in the first memo of appeal or in the revision petition.”

8.Further reliance in this regard is placed on the case of “Moon Enterpriser CNG Station, Rawalpindi vs. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another” reported as 2020 SCMR 300, wherein it was held by the Apex Court:

In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to

produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith.

9.Yet there is another aspect of the case that if, the application dated 07.12.2023 for setting aside ex-parte decree is restored, the same would be just a futile exercise as it would not succeed particularly when the same was filed after more than ten months of the passing ex-parte decree with no request for condonation of the delay. However, in para No.13 of the application dated 07.12.2023 it was mentioned that the case of petitioner fall within the ambit of Article 181 of the Limitation Act, 1908, which provides three years limitation period for filing of such applications. Learned counsel for petitioner also emphasised during arguments that the said application for setting aside ex-parte decree was also well within the period provided by ibid Article of the Limitation Act, as he was placed ex-parte after the grant of leave to appear and defend the suit. Thus 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 This Court is, however, 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- Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609)

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 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.

10.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 were 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 Rehman Weaving Factory (Regd.), Bahawalnagar vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21)

ex-parte decree was within time. Whereas, in the case in hand, defendant, admittedly, appeared before learned trial court through and thereafter, he absented himself and ex- parte decree was passed against him. 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.

11.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.

12.The Honourable Supreme Court in another case titled Secretary Education Department, Government of N.-W.F.P., Peshawar and others4, while reiterating the same view as expressed in the supra quoted case of Shahid Pervaiz alias Shahid Hameed vs. Muhammad Ahmad Ameen

2006 SCMR 631

Secretary Education Department, Government of N.-W.F.P., Peshawar and others Vs. Asfandiar Khan (2008 SCMR 287)

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.

13.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 they appended any application under Article 5 of the Limitation Act, 1908

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

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.

14.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

15.Again, this Court in the reported case of Nisar7, while dealing with the application for setting aside ex- 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

Fazal Karim and 4 others Vs. Hussan Din and 8 others (2019 MLD Nisar Vs. Said Qamar (late) through LRs and others (2023 MLD

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.

16.The aforesaid view has once again been reiterated by this Court in the case of Asif Ullah etc Vs. Mst.

Gulzar Bibi etc (Civil Revision No.725-P of 2020) decided vide Judgment dated 26.07.2024, wherein it has been held that in both the cases, where a defendant does not turn up in response to summons or he is proceeded ex-parte after appearing in the Court, the period of limitation for filing an application for setting aside ex- parte decree would be governed by Article 164 of Schedule-II of Limitation Act, 1908.

17.Now adverting to the merits of instant case, the application of petitioner for setting aside ex-parte decree was badly time barred and no application for condonation of delay under section 5 of the Limitation Act, was filed.

In such a situation, if the present application for restoration of application dated 07.12.2023 is accepted, even then the same would be of no avail for petitioner as

his basic application is beyond the scope of prescribed limitation period. Hence, the learned trial court has rightly dismissed the application of petitioner for restoration of earlier application dated 07.12.2023 for setting aside ex-parte decree.

18.In the wake of the above discussion, the instant revision petition being devoid of merits stands dismissed with listed CMA. Parties shall bear their own cost.

Announced.

(*M/Subhan) -Sd/-

JUDGE

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