Naveed Vs Muhammad Bilal, etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Civil Revision No.1494-P/2025

Naveed...........................................Petitioner. Versus Muhammad Bilal, etc.......................Respondent.

Present:

Mr. Muhammad Irshad, Advocate, for the petitioner.

Nemo for the respondent being a motion case.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant revision petition, petitioner has challenged the order and judgment of learned Additional District Judge- IV, Mardan dated 21.10.2025, whereby the appeal filed by the present petitioner was dismissed and thereby maintained the order and judgment of learned trial Court/Civil Judge-X, Mardan dated 07.05.2025 who vide the same had also dismissed an application of the present petitioner for setting aside ex-parte proceedings as well as ex-parte judgment and decree dated 14.09.2022.

2.Precisely, the facts leading to the filing of the instant revision petition are that the respondent/ plaintiff filed the instant suit for recovery of

Rs.3,92,253 in which the petitioner then defendant was summoned, who put his appearance, engaged his counsel and also filed his written statement;

however, later on, he absented himself and as such, he was placed ex-parte vide order dated 28.05.2022. Thereafter, the respondent/plaintiff produced his ex-parte evidence and ultimately, on the basis of ex-parte evidence, the said suit was decreed by the learned trial Court vide ex-parte judgment and decree dated 03.10.2019. The petitioner/defendant filed an application for setting aside of the said decree, which was though dismissed by the learned trial Court; however, on appeal, the same was allowed and consequent ex- parte judgment and decree was set aside and petitioner/defendant was directed to join the proceedings before the trial Court, whereafter petitioner/defendant submitted his written statement; however, again, he absented himself, therefore, again, he was placed ex-parte and ex- parte evidence was produced and then an ex-parte judgment and decree dated 14.09.2022 was passed. The petitioner/defendant initially challenged the said ex-parte judgment and decree dated 14.09.2022 by filing an application under section 12(2) CPC; however, the same was concurrently

dismissed by the learned trial Court as well as by the appeal Court and then those orders were not challenged by the petitioner/ defendant before any higher forum. Now, it was on 18.09.2024, when petitioner/defendant submitted the instant application for setting aside of the aforesaid ex-parte judgment and decree dated 14.09.2022; however, the said application was dismissed by the learned trial Court vide one of the impugned order and judgment dated 07.05.2025. The petitioner/ defendant being aggrieved of the aforesaid order and judgment, preferred an appeal to the Court of learned Additional District Judge-IV, Mardan, who vide the second impugned order and judgment dated 21.10.2025, also dismissed the appeal of the petitioner/defendant, which orders/judgments have now been challenged by the present petitioner before this Court through the instant revision petition.

3.Arguments of learned counsel for the petitioner were heard in considerable detail and the record perused with his able assistance.

4.The appended record would show that initially when the instant suit was filed, the present petitioner then defendant was summoned and in

response to the same, he put his appearance before the learned trial Court on 26.07.2019; however, later on, he absented himself, therefore, he was placed ex-parte vide order dated 03.10.2019 and thereafter, the respondent/plaintiff was directed to produce his ex-parte evidence, which he accordingly led and ultimately an ex-parte judgment and decree to the extent of Juz Alif was passed in his favour vide judgment and decree dated 14.11.2019. Later on, the present petitioner then defendant appeared, filed an application for setting aside the aforesaid ex-parte judgment and decree;

however, the said application was dismissed by the learned trial Court and then the petitioner/ defendant filed an appeal, which was allowed vide order and judgment dated 15.09.2020 and thereby ex-parte judgment and decree dated 03.10.2019 was set aside and the petitioner/defendant was directed to join the proceedings.

5.The record also shows that after joining the proceedings, the present petitioner then defendant was directed to submit his written statement, which he accordingly submitted; however, the order of the learned appeal Court, whereby the ex-parte judgment and decree was set aside, was challenged by the respondent/plaintiff before this Court through

a petition, which was disposed of by this Court with a direction to the learned trial Court to conclude the proceedings within four months. The record further shows that the present petitioner then defendant again absented himself from the proceedings before the trial Court; therefore, he was once again proceeded ex-parte and after recording ex-parte evidence, the suit was again decreed vide judgment and decree dated 14.09.2022, which conduct of the petitioner/ defendant shows that he was not interested to pursue his case and the rights accrued to the respondent/plaintiff under an ex-parte decree could not be taken away by merely filing of an application for setting aside the same. This Court in the case1 has held that the petitioner joined the proceedings, contested the suit by filing written statement but again absented himself from the Court, resulting into ex-parte decree against him, once again. He moved another application for setting aside ex parte decree, which was concurrently dismissed by the Courts below and rightly did so, as the conduct of the petitioner qua mischief of limitation warrants so, in accordance with law.

“Gul Zaman vs. Shah Nawaz and another” reported as 2014 CLC 1674

6.It is also relevant to mention here that initially against the aforesaid ex-parte judgment and decree dated 14.09.2022, petitioner/ defendant filed a petition under section 12(2) CPC; however, the said application was dismissed by the learned trial Court vide order dated 26.06.2024. The petitioner/ defendant considering himself aggrieved filed an appeal before the learned Additional District Judge, but the same was also dismissed by the learned appeal Court vide order dated 16.01.2025, which order has not been challenged by the petitioner/ defendant before a higher forum and thus it has since been attained finality.

7.The record further shows that after unsuccessful attempt to set aside the aforesaid ex- parte judgment and decree through a 12(2) CPC petition, petitioner/defendant then filed the instant application under Order IX Rule 13 CPC, whereby he has prayed for the same relief to set aside the ex- parte judgment and decree and thus for the same grievance, he has resorted to two different remedies, which is not permissible under the law, therefore, the two Courts below have rightly dismissed the application filed by the present petitioner. It merits to mention here that when an ex- parte judgment and decree is passed against a

person then an aggrieved person thereof has four remedies, which are as under: -

i. To file an application under Order IX Rule

13 CPC.

ii. To file an appeal before the higher forum under section 96 CPC.

iii. To file a review petition under section 114

CPC.

iv. To file an application under section 12(2)

CPC.

however, out of them an aggrieved person can avail any one of the aforesaid remedies and when once he opts for any remedy out of them then he cannot be allowed to avail any other remedy, as in the present case, the petitioner/defendant had already availed a remedy by filing a 12(2) CPC application, which was dismissed, therefore, his subsequent application filed under Order IX Rule 13 CPC is not maintainable.

8.It is also relevant to mention here that since petitioner had participated in the proceedings, as he has personally appeared before the learned trial Court, and he has also engaged a counsel for himself, and once earlier an ex-parte judgment and decree was set aside on his application, and then he had also filed his written statement, therefore, he was well within the knowledge of the proceedings pending against him, therefore, in such eventuality it would be Article 164 of The Limitation Act, 1908

which would governed the question of limitation of filing an application under Order IX rule 13 CPC which provide for thirty (30) days period, however, as stated herein above that the petitioner/plaintiff has filed the instant application under Order IX Rule 13 CPC after the lapse of more than two years, therefore, on the face of record, it is a time barred application. The Hon’ble Apex Court in the case2 has held that admittedly petitioners Nos.1, 4, 5 and 6 the official defendants appeared at the initial stage of the suit but did not participate in the proceedings as a result of which they were declared ex parte on 22-10-2002 while petitioner No.3 was declared as such on 7-2-2003. It was only defendant No.7, who contested the suit but his name was also deleted from the array of respondents on the application of respondent No.1 Asfandiar Khan on 27-9-2003 whereafter ex parte evidence was recorded on 12- 12-2003 and ex parte decree was passed on 23-12- 2003. It was in the execution proceedings when an application for setting aside ex parte decree was moved which was quite belatedly. Since it was well within the knowledge of petitioners that suit was pending against them and were declared ex parte “Secretary Education Department, Government of NWFP, Peshawar and others vs. Asfandiar Khan” reported as 2008 SCMR 287

as such Article 164 of Limitation Act would be applicable in their case whereby period to move an application for setting aside an ex-parte judgment and decree is 30 days. In similar circumstances, it was held by the Apex Court in the case3 that 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. This Court in a case4 has held that limitation period for filing an application under Order IX Rule 13, C.P.C. when the ex parte decree is passed on the date of hearing is one month under Article 164 of the Limitation Act and in other cases limitation period is three years as provided under Article 181. The time from which the period began to run for setting aside a decree passed ex parte under Article 164 is, the date of the decree or, where the summon “Shahid Pervaiz alias Shahid Hameed vs. Muhammad Ahmad Ameen” reported as 2006 SCMR 631 “Malal Din vs. Maizullah Khan and 3 others” reported as 2019 CLC 517 Peshawar

was not duly served when the applicant has knowledge of the decree.

9.It would also be relevant to mention here that admittedly the application filed by the petitioner/defendant for setting aside the ex-parte judgment and decree was apparently time barred, however, he did not opt to file any application for condonation of the said delay, therefore, without the same the delay in filing the application could not be condoned as under the law, he was required to have explained each and every day in filing the application for setting aside the ex-parte decree, therefore, on this score too, the application of the petitioner/defendant for setting aside an ex-parte judgment and decree is liable to be dismissed. It is settled by now that the delay of each and every day has to be explained by a defaulting party and the same should not be taken in a mechanical manner.

In the case5, it was held by the Apex Court that any aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit is filed beyond limitation, each day's delay has to be explained. Similarly, in another case6, it was also “Lal Khan through L.Rs vs. Muhammad Yousaf through L.Rs” reported as PLD 2011 Supreme Court 657

“Honda Atlas Cars (Pakistan) Limited vs. Honda Sarhad (Pvt.) Ltd & others” reported as

2005 SCMR 609

observed by the Apex Court that plea raised by appellants was that the applications were time- barred as the same were filed beyond the period of thirty days and no application for condonation of delay was filed by respondents. Both the applications were beyond the period of limitation i.e.

30 days under Arts.163 and 164 of Limitation Act, 1908, therefore, it was incumbent upon the respondents to have availed the benefit of S.5 of Limitation Act, 1908. If there was delay in filing applications, the respondents should have invoked the provisions of S.5 of Limitation Act, 1908.

Respondents had not approached the Trial 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, Trial Court had rightly declined to restore the suit and to set aside ex-parte decree

10.Even otherwise, it is by now settled that the law of limitation is not to be taken lightly and the same is no more a mixed question of law and facts but the same has to be treated as a question of law.

It has also been settled that it is the duty of the Court to adhere and attend to the question of limitation as Section 3 of The Act of 1908 do require from a Court of law to address the question of limitation even if

the same has not been agitated as a defence by a party. Recently, a larger Bench of the Hon’ble Apex Court in Khushi Muhammad case7 has held that the purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired from accrual of an actionable right. It was also held that before considering the propositions above, it is expedient to mention certain salient features which have been settled over a period of time by the superior Courts for the purposes of interpretation of the law of limitation.

These are:-

i. The law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly;

ii. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties;

iii. It is salutary to construe exceptions or exemptions to a provision in a statute of “Khushi Muhammad through L.Rs. and others vs. Mst. Fazal Bibi and others” reported as PLD 2016 Supreme Court 872

limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision;

iv. There is absolutely no room for the exercise of any imagined judicial discretion vis-à-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The Court cannot claim any special inherent equity jurisdiction;

v. A statute of limitation instead of being viewed in an un-favourable light, as an unjust and discreditable defence, should have received such support from Courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The Court has to only see if the defence is good in law and not if it is moral or conscientious;

vi. The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right;

vii. The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor;

viii. Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced.

Recently, in another case8, the Apex Court has held that the law of limitation provides an 8 “Chief Executive Officer NPGCL, GENCO-III, TPS Muzaffargarh vs. Khalid Umar Tariq Imran and other” reported as 2024 SCMR 518

element of certainty in the conduct of human affairs. The law of limitation is a law that is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. Therefore, the limitation cannot be regarded as a mere technicality. With the expiration of the limitation period, valuable rights accrue to the other party, as observed in numerous judgments by this Court. However, reference may be made to the cases9.

11.In view of the above, the petitioner has not been able to point out any material illegality or irregularity in the impugned orders and judgments of the two fora below; therefore, same are maintained, and the instant revision petition being bereft of any merit is hereby dismissed in limine.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)

9 “Ghulam Rasool and others vs. Ahmad Yar and others” reported as 2006 SCMR 1458, “Collector Sales Tax (East), Karachi vs. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and another” reported as 2008 SCMR 435 and “Messrs. SKB-KNK Joint Venture Contractors through Regional Director vs. Water and Power Development Authority and others” reported as 2022

SCMR 1615.