Badshah Jan etc Vs Muhammad Farid Khan

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Judgment Sheet

PESHA HIGHCO BATTNU BENCH

(Judicial Department)

o.58-B 2023

Badshah Jan etc Vs Muhammad Farid Khan

For Petitioners: Mr. Ma sood Iobal Khatta k Advocate For Respondent: Mr. Ahm d Farooo Khattak Advocate Date of hearing: 26.06.2023

Dr. Khurshid lqbal. J.-

1.The parties have a dispute over what Muhammad Farid Khan (the respondent) has asserted as loan ofRs. 4,312,500/-, he allegedly advanced to Naseeb Jan (petitioner # 2) son of Badshah Jan (petitioner # 1). While it is not clear when exactly the respondent advanced the loan in question to the petitioner # 2, in his suit (plaint) he filed on 3l July 20l9,he stated to have given it owing to good relations with and mutual trust in one another. He further stated in his plaint that the petitioner # 2 has paid to him Rs. 4,00,000/-, out of the total, leaving Rs. 3,912,5001-, as outstanding. The petitioners were alleged to have been delaying the repayment ofthe aforesaid outstanding money; they, somehow or the other executed a deed on 3l July 2018 that they will make good the payment failing which they will ffansfer their 20 Kanal land in Khasra # 1232 and 1233, situated n the Landuki mauza of Tehsil Banda Daud Shah in District Karak. The petitioners, the respondent added, didn't honour their pledge either to repay the loan or transfer the land

in lieu thereof. Hence, he filed against them the suit for recovery.

2.On 3l July 20l9,the day on which the suit was filed, the trial Court issued (the first) summons to the petitioners for 04 September 2019 and also directed the respondent to deposit court fee. On 04 September 2019, both the petitioners appeared before the trial Court in person; court fee to the tune of Rs. 15,000/- was also affixed. The petitioners submitted an application for adjoumment for production of compromise. The Court adjoumed the case till 25 September 2019. As the suit came up for hearing, the respondent and his counsel appeared before the Court. The petitioners didn't tum up. The Court stated in its order that: firstly, the suit was called several times, but none appeared for the petitioners; and secondly, the petitioners had appeared on 04 September 2019; thirdly and lastly, they were proceeded against ex parte. The Court, then, directed the respondent to submit list of witnesses and deposit diet money, if any, for witnesses to be summoned by it and fixed the suit for recording ex parte evidence. The Court Z conducted as many as 05 hearings; recorded ex parte evidence in 03 hearings; two hearings were adjoumed due to non- ru availability of the Presiding Judge and lawyers' strike. On last (06) hearing conducted on 27 November 2019, after hearing ex parte arguments, the Court passed a decree for recovery ofRs.

3,912,5001- with profit on bank rate with cost to be bome by the petitioners.

3.It was during proceedings for the execution ofthe decree that the petitioners submitted an application under Order fX, Rule 13 of the Civil Procedure Code, 1908 (CPC) on 09 May 2020 for setting aside the ex parte decree. The respondent contested the application. The leamed trial Court dismissed the application by its Order passed on 17 September 2022, which

was upheld by appellate Court vide its judgment and decree rendered on 2l January 202l.The petitioners filed this revision petition against the findings of the learned Courts below.

4.In their application under Order IX, Rule 13, CPC, the petitioners admitted that they appeared before the trial Court on 25 September 2019,the respondent offered to resolve the matter outside the Court through mediation. They stated in their application that pursuant to that offer, ajirga was convened due to which they became unconcemed and abandoned the case. They further stated that the respondent assured them ofhaving withdrawn the suit, on the one side; and pursued it and managed to obtain the decree, on the other. Their next ground was that in the meanwhile wife of petitioner # I and mother of petitioner # 2 got sick and underwent surgeries. They further averred that petitioner # 2, an illiterate person, was doing some private job in the Punjab and couldn't get knowledge of the court proceedings.

5.Arguments of Mr. Masood Iqbal Khattak, leamed counsel for the petitioners and Mr. Ahmad Farooq Khattak, leamed counsel of the respondent were heard at length. Record perused.

6.The point for determination is that whether the learned Courts below have arrived at a conclusion by applying Article 164 of the Limitation Act, 1908 while dismissing the application of the petitioners.

7.On facts, the petitioners have admitted their appearance before the trial Court on 25 September 2019. They didn't come forward with any proof worth the name that the respondent offered private patch up and asswance that he will withdraw the suit. They also didn't file any documentary proof to prop up their stance of sickness of wife (of petitioner # l) and mother (of petitioner # 2). Above all, they plainly stated having

abandoned pursuance ofthe proceedings. They also didn,t state the exact date of knowledge of the ex part decree. In their application they stated that they will produce documentary proof during arguments, but they failed to do so. Having admifted their appearance before the trial Court at the very first hearing of the suit, the question of service of summons doesn't arise at all.

8.On law, let's consider Article 164 of the law of limitation. It reads as follows:

Article Description of Period of Time for which period begins # suiUapplication Limitation to run 164 By a defendant, Thirty The date of the decree or for an order, to days where the sunmons was not set aside a duly served, when the decree passed ex applicant has knowledge of the parte decree.

9.The above provision has two parts: first, the date of decree; and second, the date on which the applicant obtains knowledge of the decree. The latter part, however, would trigger when sunmons is stated to have not been duly served. The setting aside of an ex parte decree is a key subject in the mainstream civil litigation under the civil procedure rules contained in the CPC. It is for this reason that extensive % jurisprudence has been developed on this subject since the earlier years of coming into force of the CPC in 1908. The higher courts-before and after Partition-have discussed it threadbare in plethora of cases. For example, the meaning of the word "summons"; t}re difference, if any, between "summons" and "notice"; the duty of court to ensure service of the opposite party; the meaning of "hearing" in relation to Order D(, R. 13, CPC; and service of summons or notice in case of transfer of a suit. While studying the case law, the l98l Messrs Rehman

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I{eaving Factory caset may be referred to as a starting point. It must, however, be mentioned here that in the cited case it was held that Article l8l of the law of limitation was applicable. It has its own peculiar facts and circumstances, as the Supreme Court has held in Honda Atlas Cars case.2 The ratio of the aforesaid case thus doesn't apply to the instant case. In this case, in its "erudite judgment,, (Gulzar case)3, the Supreme Court extensively discussed jurisprudence on Articles 164 and 169 of the law of limitation and Order fX, R.6 and 13, CpC, from as early a time as 1916 till 1980. Hence, it would be very much helpful to understand the various dimensions of the subject law despite the non-applicability of its ratio. The germane facts of this case are that the appellant-Rehman Weaving Factory-sued the respondents/defendants for damages. During the trial, the appellants moved an application for amendment in their plaint. Their plea for amendment could not prevail before the trial court as well as the High Court. tn order to proceed with the trial after receipt ofthe record from the High Court, the trial court issued notice to the respondents/defendants. On the date fixed by the trial court, the appellants appeared, but none appeared on behalf of the respondents/defendants on whom the notice was stated to have been served. The trial court proceeded ex parte and passed an ex parte decree against the respondents/defendant on 2l May 1972. The respondents/defendants submitted applications for setting aside the ex parte decree. They contended to have obtained knowledge of the decree on 3l July 1972 and submitted the application the same day, as such, within 30 days as mandated by Article 164. The applications were dismissed I Messrs Rehman lueqving Factor (Regd.), Bahawalnagar v. Induslrial Development Bank of Pakistan and Messrs Rehman Weaving Factory (Regd.), Bahowalnagar v. Punjab Small Industries Corporotion Lahore, PLD l98t SC 2l (1981 case).

Honda Atlos Cars (Pokistan) Ltd. v. Honda Sofiod (PvL) Ltd. 7005 SCMR 609. l Gulzar v. fldra, 1988 MLD 1518.

by the trial court. On appeals, the High Court allowed the applications, setting aside the ex parte decree. The main reasoning of the High Court was:

"[T]he service as observed earlier on an unknown person or the service by affixation without obtaining a refusal from a proper person without resorting to the personal service was made not only upon misrepresentation of fact, but also misapplication of proper procedure."

10.The High Court derived wisdom from the 1975 Khudayar case in which the Supreme Court ruled that the court is duty-bound to determine that the opposite party (for example, defendant in case ofex parte decree) has been duly served and further that it has applied its judicial mind meaningfully not mechanically.a It is worth noting that in the l98l case, the question of service of the first sunmons was not in issue.

11.The first and foremost point that can be picked up from the cited l98l case is that summons used in Article 164 of the law of limitation means the first summons issued to the defendant after institution of the suit. The significance of this point lies in the fact that a defendant can seek advantage ofthe second part of Article 164 only when he can prove that the summons was not duly served. Another conclusion that follows is that if a defendant has appeared in response to the first summons but absented on a subsequent date of hearing, his plea (as the circumstance is in the case in handfthat he was not served for such subsequent date and that limitation for him will run from the date of knowledge of the decree-would not be accepted. In short, time will run from the date of the decree. This view was pronounced'tn Mian Kamal Din, another leading case on the subject.s Kamal Din was followed in Netai Silcral in a Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and anolheL

PLD 1975 SC 67E.

Midn Kamol Dinv. Malik Muhannad Boshir and others, PLD 1952 Lah.456.

1960.6 Kamal Din was discussed in the l98l case, but was not disapproved. The issue of absence on a subsequent date may also be considered from the perspective of transfer of the suit from one court to another on the request ofa defendant. [n one such situation, the court refused to set aside ex parte decree, holding that the absence ofthe defendant on whose request the case was transferred, showed his negligence in pursuing the suit before the transferee court.T It means that the defendant's first service of summons prevailed and the limitation was counted from the date ofthe decree rather from the date ofknowledge. In the case in hand, too, the suit was adjoumed on the request of the petitioners. Their failure amounts to negligence on their part.

12.The next key point emerges from the l98l case is the absence of a defendant on date of "hearing" (used in R. 6 and 13 of Order IX, CPC). It appears that the point was for the first time considered in a 1916 case, one of the earliest. In this case, the defendants had appeared pursuant to their service on first summons.s The court had stayed the suit (section 10, CPC) due to another suit. At a later date, the plaintiff sought restoration of the first suit owing to the dismissal of the second one. The defendants were directed to produce a copy ofthe proceedings in the second suit. On the date so fixed, the defendants failed to appezlr, the court passed ex parte against them. They sought setting aside ofthe ex parte decree on the ground that they had no notice of hearing of the suit on the adjoumed date. The High Court ruled that the adjoumed date was not fixed for hearing of the suit on merits and they werc not served with a notice lhat hearing of the suit on merits would take place. Whether the Netoi Sir,al and others v. Sashi Bhuson Biswas and others,PLD 1962 Dacaa 60.

Kapilaswor Maharan v. Abdul Rahman, AIR 1936 Paha 490.

Raghbir Brethers v. Daulat Ram, AIR l9l6L r.26l.

adjourned date for compromise was one for hearing or not? This question will be shortly answered below.

13.Yet another major aspect discussed in the 1981 case is the interpretation of the word "summons" used in Article 164, notably in relation to the word "notice". This aspect has also a bearing on the case in hand owing to the argument of the leamed counsel for the petitioners that the petitioners had no notice of the hearing of the main suit which was fixed for submission of compromise. Summons and notice though characterise court processes, but carry different connotations in both the law of limitation (Articles 164 and 169 (the latter pertains to appeal) and the CPC (Orders IX, R. 6 and XLI, R. 2l). The hon'ble Court observed:

If there was no connection between Order IX, rule 13 and Article 164, it would have been more logical to use general phraseology so as to deal with all situations vis-d-vis various ,cause' which could be treated as reasonable in the context of setting aside ex parte decree. Obviously non- service of 'summons' is not the only reasonable cause. Thus, it would appear that only a part of the subject ofreasonable cause was included in Article

14.In Order IX, R. 6 (l) (c), CpC, the word summow (usd twice) is different from the word notice.e Needless to say, the provision provides that in the event of proof of service, if the defendant has no sufficient time to be able to appear before the court to respond on the day fixed in the summons, then it shall issue notice to the defendant, postponing the hearing to a future day the court shall fx. The distinction between the two needs to be further understood in the context of Order IX, R. 13. The provision envisions two situations:

non_service of summons as a cause; or any sufficient cause. The former relates to the first

'l9El case, p. 34

hearing (Order IX, R. 6); the latter, to an adjourned hearing (Order XVII, R. 2) of the suit.ro

15.This court would now examine the relevance of the date 25 September 2019 fixed for submission for compromise with the word "hearing". In his well know commentary on CPC, Aamir Raza A. Khan, with reference to numerous cases, has offered the following elaboration of the word "hearing": The word 'hearing' has not been defined, and it is used in different rules with a view to state the different purposes for which the hearing is fixed. It implies a d on which some act for fi-rtherance of the suit or oroceedins is to be taken. [...] The order sheet should clearly specifr what proceedings are required to take place for only then can it be determined whether it was a date of hearing or not. The word 'hearing' refers to the first hearins after the i S ce of summons to the defendant. which need not necessarily be one for the recording of evidence. [...] It is the date on which the court examines the oleadines in order to understand the contenti of the parties and in % suit in whi rssues are to be frame d it is the dav on which the i sues are framed.

omitted. I lth Ed. 2015, p. 5961.

[Footnotes

16.True, with reference to a Lahore case of Nazar Muhammadt intimation to the court about compromise between the parties doesn,t amount to hearing. However, the matter doesn't end here. The record shows that the petitioners have not mentioned as to when exactly they got knowledge of the ex parte decree. The settled legal position is that Article 164 shall apply for setting aside an ex parte decree which provides that limitation shall run from the date of the decree in the first instance; however, if summons is not duly served, then from the date of knowledge of the decree. Needless to reiterate, the r0 The second proviso to the Rule regarding inegularity in the service ofsummons added bv order XII of r972 is not under coln.ia"i ion"in',r,.i i; il;'ffi; as in the case in tt Nazar Muhanmad and another jv' Muhannad Amrtar and 4 others, lggg yLR 2464 [Lahore].

institution of the suit- after the first summons summons means as the petitioners had existing in the case hand a situation nons' Similar to the first sur 1n resPonse appeared the SuPreme under consl deration before were circumstances arld Shahid Education DePartruentl2 Court in Secretury, the Court ruled: (latter in time), Pervaiz.r3ln the former case of it was well within the knowledge Since t them and was P ending agams petrtioners that suit of ex as such Art1Cle 164 were declared Parte in the1r case aPP licable Limitation Act would be app lication for wherebY Pen od to move condonation of delay is 30 daYs. In the similar circumstance s, it was hel dbv this Court in the case v' of Shahid Pervaiz alias Shahid HameedSCMR 631 that Muhammad Ahmad Ameen 2006 the trial Court defendant j oined Proceedings before parte decree and afterwards on his absence an ex was pas sed. Defendant after four months filed application for setting aside ex parte decree which application was dis missed being time-barred. Article 164 of Limitatlon 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 [p. 289]'

17.Before moving forward to conclude the discussion, reference may be made to a view of the Court in the l98l case which was discussed in Gulzar's case in 1988. The relevant portion from the l98l case needs to be reproduced for ease of quick reference:

When any cause is shown for non-appearance at the first hearing whether non-service of 'summons' or any other sufficient cause, e.g. an accident on the way, an act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of the knowledge of the decree, when the 'summons'was not duly served; otherwise from the date of t}le decree. And the remaining cases, other than those Secretary Education Department, Government of N.-lf.F.P., Peshawar v. Asfandiar Khan,2@8 SCMR 2E7 [Supreme Court].

n Shahid Pervaiz v. Muhonmad Ahmad Aneen 2006 SCMR 630 [Supreme Coun].

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ed bY Article not be govem

i:f:i };ffi?,];;l:

ented on the Passage as Gulzar case comm

18.The Court in under:

ated that the Penultimate r Phrase It wilI be aPPrect ofdhe' above- tl ise from the date of decree otherw ed different on aPParentlY ca$l mentioned observatt c of c by itse lf meanlngs. It S er to non re w ofh due to non- on the ns or the ce. It clearlY ceo the above-m entioned Pluase made Article 164 ibid, the will have to be totallY discounted from consideration. It was indeed a formidable judgment expre ssion forming Part of the same Article visualising a situation to which the same 164 was held aPP licable. It has to be harmonised with the observation relied uPon bY the leamed counsel and since the Article itselfprovides room for applying it to cases other than those of first hearing, itshall be assumed that this was the reason why the august Supreme Court pertinently adopted the phrase in their erudite judgment. Secondly though it was appreciated that Article l8l will provide a long duration of three years to a defendant, yet rationalisation of the oddity was left to the wisdom of the Legislature. Remarks to this effect appeared in para 25 of the judgment. Apparently what looked strikingly unusual was the longer period provided in Article l8l, but another aspect as well needed consideration. The m w ac hafruaan two fv,1cc of defendants those not served with the summons. and those disappearins--deliberatelv in the course of hearine. If for a defendant who did not receive summons, only a period of thirty days was provided, it will indeed be iniquitous to provide a much longer period ofthree years to a defendant, who not only knows of the institution of the suit but has actually been takine part in the proceedinss. and suddenly disassociates by pumosely withholdins himself. His knowledse ofthe pendency. his conduct. in his takine part in the procee ss for a lenstl of time and his sudden spurt in keeping himsclf away, would be the insredients which should ordinarily

denv him the leisure ofthree years' lone period. In fact he is suDDosed to be extra visilant to Dursue the case. trial whereof be may have been facine for sometime and had no re to leave it unattended. He does not deserve leni ency for he should know that the suit may have culminated into a decree aeainst him. [para 5, p. 1521].

19.In view of the foregoing reasons, I have reached to an irresistible conclusion that the answer to the question formulated is that the first part of Article 164 is fully attracted. The Courts below were, therefore, correct by applying it to the facts and circumstances of the case in hand. The application for setting aside the ex parte decree being filed after 30 days ofthe date of the decree was hopelessly time barred. The reasons advanced are apparently not valid within the four corners of law. Even no application for condonation of the delay was filed. Doubtlessly, the substantive law creates, defines and regulates rights. It allows an aggrieved person to seek remedy by making a recourse to the court of law for its enforcement. But at the same time, the person aggrieved has been allowed certain period by the law to make such a recourse. It implies certain exceptions to the substantive law and the law of limitation contains such exceptions. As the time passes on after the ex parte decree, a valuable right accrues to the plaintiff. Then to deprive the plaintiff of such a right, it becomes a must for the defendant(s) to explain satisfactorily the delay ofeach day. The law of limitation not being a mere technicality has to be construed strictly and observed mandatorily. It has its roots deep in public policy to bring certainty and an end to litigation by discouraging those pursuing a matter for an indefrnite period. It is for this reason that this law has been clothed with the force to create and extinguish rights of the parties with

efflux of time. In somewhat similar circumstances, the Supreme Court in Shahid Pervaiz caseheld:

7.It is a settled principle oflaw that valuable right accrues to the other side by lapse of time and each day's delay has to be satisfactorily explained. It was argued that valuable rights of the petitioner is involved but this does not fumish a proper ground for condonation of delay in civil matters. Plea for condonation of delay on the ground of poverfy is also not valid ground as law laid down by this Court in Hakim Abdul Rehman's case 1970 SCMR 582. It is also a settled maxim that law of equity favours those who are vigilant. The conduct of the petitioner clearly shows that he was not serious to pursue the matter before the Courts below.

20.In this backdrop of the matter, I see no illegality or irregularity in the impugred judgment and orders. Both the courts below have properly assessed the material on file. The contentions raised were elaborately addressed. This being a revisional court independently assessed the findings, but noticed nothing as such to call for its interference. The instant revision petition is found bereft of any merit. It is, therefore, dismissed.

Announced

(Ghafoor Zaman)

JU

i?rpp '/ I'hiffi 3

(S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal