Asif Ullah etc Vs Mst. Gulzara Bibi etc

Judgment Sheet

IN THE PESIIAWARHIGH COURT,

PESHAWAR

IUilCAL DEPARTMENT.

JUDGMEI\T

Civil Revision No.725-P 12020.

Date of hearing 26.07.2024- Asif Ullah etc Versus Mst. Gulzara Bibi etc

Petitioner (s) by: Mr. Muhammad Amin Khattak lachi Advocate.

Respondent(s) by: Haji Zahir Shah Advocate' WIOAR AHMAI) J Respondents No.1

namely Mst.Gulzara Bibi had brought a suit for possession through partition ofher respective share in a house jointly owned by them alongwith other co-owners (defendants). It was asserted in the plaint that the house had originally been owned by Mst.Qureshia Bibi wife of Abdul Rauf, after having it purchased through deed No.79 Bahi No'1 Volume 182 and registered on 05'03'1968' Mst.Qureshia Bibi had died in the year 1983 and thereafter, said house had devolved on her legal heirs including plaintiff, who was her daughter' The suit was also containing other recitals but

same need not to be discussed here. Defendants appeared and put main defence that husband of Mst.Qureshia Bibi namely Abdul Rauf had gifted house in favour of defendants No.2 & 3 in the suit with addition that gift deed would be produced at the time of evidence. It was also claimed that plaintiff had also sold her share in favour of defendant No.l through unregistered sale deed dated 12.07.2006 in lieu of receiving consideration of Rs.6,50,000/-. This was the rnain defence of contesting defendants No.2 and 3 who are petitioners in instant civil revision' They subsequently remained absent from Court proceedings and were proceeded ex-parte vide order dated 23.1t.2015. At conclusion of proceedings in the suit an ex-parte decree was granted in favour of plaintiff against petitioners (defendants) on 29'03.2016' Petitioners then filed an application for setting side the ex-parte decree on 22.03.2018, which was dismissed by learned civil Court below vide order dated 04'01'2019' The appeal filed by petitioners was also dismissed by leamed appellate Court vide judgment dated cR ,to.725.Pf2o2o,

J

04.11.2020. Aggrieved from impugned judgment, petitioners have filed instant civil revision.

2.Leamed counsel for Petitioners

contended that application of petitioners for setting aside ex-parte decree has wrongly been held to be barred by law of limitation. He added that if a defendant is proceeded ex-parte, after his appearance in the case then the period of limitation for filing application for setting aside the ex-parte decree would be three years according to Article 181 of Limitation Act 1908 (hereinafter referred to as Limitation Act) and in support of his contention, he placed reliance on the earlier judgment of this Court rendered in case of "Syed Arshad Ali Versus Said Ali" reported as 2018 YLR 779 as well as another judgment rendered in case of "Shah Qaimoos Khan and 4 others Versus Faizullah Khan and another" reported as 2020 CLC 111 and judgment of Hon'ble Supreme Court t'Messrs Rehman of Pakistan rendered in case of

Weaving Factory (Regd) Bahawalnagar Versus Industrial Development Bank of Pakistan" reported as PLD 1981 SC 2l' He also contended CR No.72rPf2O2O,

that the plea of purchase raised in written statement has not been discussed in final ex-parte order therefore the order was void and no limitation would run against a void order. In this respect he placed reliance on the judgment of Hon'ble Baluchistan High Court rendered in case of "Water and Power Development Authority through Chairman and 3 others Versus Mir Khan Muhammad Khan Jamali and another" reported as 2006 CLC 92.

3.Learned counsel for respondents submitted in rebuttal that limitation for setting aside ex-parte decree would be considered as 30 days as held by the Hon'ble Supreme Court of Pakistan in its judgment rendered in case of "Honda Atlas Cars (Pakistan) Ltd Vs Honda Sarhad (Pvt) Ltd and others" reported as 2005

SCMR 609.

4 Arguments heard and available record perused

5 Perusal of record reveals that the suit had been filed on 30.01'2013, where petitioners had also appeared and submitted their written CR No.725-PnO2O

statement. They subsequently got themselves absented and were placed and proceeded ex-parte vide order dated 23. 1 1 .201 5. Subsequently, the suit was decreed ex-parte in favour of plaintiffs by learned civil Court below vide judgment and decree dated 29.03.2016. Petitioners then filed application for setting aside the ex-parte decree, on 22.03.2018, after delay of about 2 years. The period of limitation provided for an application under Order IX Rule 3 CPC was 30 days as per Article 164 of Schedule II of Limitation Act' Said article should be considered applicable in both the cases where defendant does not appear despite his service of notice as well as in case he absents himself after appearing in proceedings' The earlier view expressed in case of "Messrs Rehman Weaving Factory (Regd) Bahawalnagar Versus Industrial Development Bank of Pakistan" reported as PLD 1981 SC 21 has subsequently been departed to a larger extent by Hon'ble Supreme Court of Pakistan in its judgment given in

case of "Honda Atlas Cars (Pakistan) Ltd Vs

Ilonda Sarhad (Pvt) Ltd and others" reported cR Ilo.z2rPf2O2O,

as 2005 SCMR 609. While concluding discussion in said judgment it was held;

u13.In view of ahove discussion, we are inclined to hold that as in lhe instant case, the respondents were duly served, they had fully knowledge aboul 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 defouk 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 liling aPPlications, theY should hqve invoked the provtsions 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 h,as anY request for condonation of delay in ftling of -applications, therefore, learned trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside parte decree. Thus, the orders heing proper and legal were not revisable by the learned High Courl in its oppellate i urisdiction. As a consequence of above discussion, both appeals are allowed, impugned iudgment dated 24th June, ZtiOSTs set aside and the iudgment of the trial Court is restored with costs' MII/ H-26/S APPeals allowed CR No,725-Pf2O2O,

Knowledge of petitioners in case in hand, regarding pendency of suit was not only established but admitted on record. The application has rightly been treated to be barred by law of limitation. Learned counsel for petitioners cannot place reliance on the above judgments of this Court reported as 2018 YLR 779 or 2A2O CLC 111 nor this Court can apply ratio of said judgments when Hon'ble Supreme Court has categorically held in its judgment given in the case of "Honda Atlas Car (Pakistan) Ltd" that 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' Being latest judgment of Hon'ble Supreme Court of Pakistan in the field ratio of judgment in case of "Honda Atlas Car (Pakistan) Ltd" shall hold the field and accordingly period of lirnitation for setting aside ex-parte decree in a case where defendant himself absented from appearing the Court would be 30 days. Similarly in another judgment reported as 2008 SCMR 287, the view that timitation for setting ex-parte decree when CR No.z2*Pf2OrO

defendant appears and then absent himself, would be governed by Article 181 of Schedule II of Limitation Act, was also not accepted by Hon'ble Supreme Court of Pakistan. Relevant observations of apex Court in said judgment is also reproduced hereunder;

"5, We are nol persuaded to agree with learned counsel for the petitioner. Admittedly petitioners Nos.1,4,5 & 6 the fficials 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 22.0.2022 while petitioner No-3 was declared as such on 07.02.2003.1t was only defendant no.7, who contested the suit but his name was also deleted from the afiay of resPondents on the application of resPondent o?'] iifanaiar khan on 27.09'2003 whereafter ex-parte evidence n'as recorded on 12.12.2003 and ex'parte decree was passed on 23.12.2003' It was in the execulion proceedings 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 as such Articte 164 of Limitation Act would be aPPlicable in their case whereby period to move application for condonation of delay is 30 days' in the similar circumstances, ilwas held by this Court in the cilse of "Shahid Pervaiz alias Shahid Hameed V Muhummad Ahmad Ameen 2006 SCMR 631" that defendant ioined proceedings before the trial Court and CR Ilo.7rl5.PnO2O.

afterwards on his absence an ex-parte decree was possed" Defendant after four nnonths filed applicution for setting aside ex-parte decree wkich application was dismtssed being time barred. Article 164 of Limitation Act 1908 provides 30 days to Jile application for setting aside ex-parte decree hecaase petttioner/defendant had partictpated in the proceedings before the trial Caurt", Further reliance in this respect may also be placed on the judgment of Hon'ble Supreme Court of Pakistan given in case of "shahid Pervaiz alias Shahid Hameed V. Muhammad Ahmad Ameen 2006 scMR.631'"

6 Plea of petitioners regarding the order in question being void is also not considerable.

Hon'ble Supreme Court of Pakistan while giving its judgrnent in case of "Kiramat Khan versus IG, Frontier Corps and others" reported as 2023 SCMR 866" has held;

In addition, tkis Court has repeatedly held thut limitation would run even against a void order and an aggrieved party must approach the cornpetent forum for redressal of his grievance witktn the period of limitation provided by law. This principle has consistently been upheld, affirmed and reaffirmed by tkis Cowrt and is now a settled law on the swbject. Reference in tkis regard muy he made to Purvez CR No.725.Pr2A2A.

l0

Masharuuf v. I{adeem Ahrned (Advacate) (Pn D 2014 SC SSS) where a 14 mennber Bench of this Court approved tke said Rule.

Reference in this regard moy ulso be made ta Muhammad Sharif v. MCB Bqnk Limited (2021 SCMR 1155) snd lYajdad v. Provincial Government QA20 SCMR 2046).

Besides, the ex-parte decree cannot be treated to be a void order. Decree holder in ex-parte decree was relying on the registered deed in favour of predecessor in interest from whom she had been clairning accrual of right by inheritance. In the written statement defendants, who are petitioners bef,ore this Court, had relied on purchase of rights in irnrnovable property through unregistered deed and said unregistered deed could not be proved as the petitioners had not produced any evidence in support thereof before the Court. There was ex- parte evidence of plaintiff which had sufficiently been establishing the case in favour of plaintiff of the case. There was no rebuttal therefore, judgrnent and decree was fully justified on the basis of the ex-parte evidence present before the civil Court. In quite a recent judgment of Hon'ble Supreme Court of Fakistan in the matter of ex-parte order cR No,72*P/2O2O,

ll

delivered in case "Chief Executive Officer NPGL, GENCO-III,TPS, Muzafargarrah Vs Khalid UmarTariq Imran & others" reported as2024 SCMR.518 it has also been held:-

14.Even otherwise, the Public interest requires that there should be an end to litigation. The law of limitation Provides an 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 contlicts. It requires that Persons must cotne to Court and take recourse to legal remedies with dwe diligence. Therefore, the limitation cannot be regarded as a mere technicality, With the expiration of the limitation period, valuable rights accrue to the other PorO, as observed in numerous iudgments bY this Court. However, reference maY be made to the cases of Ghulam Rasool and others v. Ahmad Yar and others (2006 SCMR 1458); Collector Sales Tax (East)' Karachi v. Customs, Excise and Sales Tasc APPellate Tribunal, Karachi and anothet (2008 SCMR 435) and Messrs SKB' KNK toint Venture Contractors through Regional Director v. Water and Power DeveloPment Authority and others (2022 scMR 161s).

7 Extraordinary leniency in the matter of setting aside ex-parte judgment and decrees as cR Na.72SP.2O2O,

t2

well as restoration of suits has not been producing good result for the system. The unscrupulous elements are often found exploiting such leniency.

It is no more a secret that some litigants deliberately get themselves absented and lateron file applications for setting aside ex-parte judgment just for giving extra length to the litigation and vexing and harassing the opposite parties. Similar tactics are also some time applied in getting suits, appeals or revisions dismissed for non prosecution by withholding appearance before the Court and lateron making applications for its restoration, so as to give unnatural life to the proceedings. Such tactics and similar other have been making the system of civil administration of justice fuither retarded and as a result delay in disposal of cases are multiplied a number of times' It was in somewhat similar situation that Hon'ble Supreme Court of Pakistan in its judgment rendered in case of "Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager Rawalpindi and another" reported as 2020 cR No.72&Pf2a2O,

SCMR 300 has held that for the purpose of maintaining confidence of litigants in Court system and presiding officers it was important that where a last opporrunity to produce evidence was granted and the parties had been wamed of the consequences, the Court must enforce its order unfailingly. It had also been observed that such like orders would not only put the system back on track and reaffirm the majesty of law but would also put a check on the trend of seeking multiple adjoumments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Relevant part of observations of the august Supreme Court is also reproduced hereunder for readY reference;

"In our view it is imPortant fot the purpose of maintaining the conlidence of the litigants in the court systems and the Presiding oflicers that where last opportunitY to Produce evidence is granted and the PartY has been warned of the consequences, the court must enforce ils order unfailinglY and unscrupulouslY without exception. Swch order would in our opinion not onlY Put the system back on track and reafftrm the maiestY of the law cR ,to.725-Pf2o2o

t4

but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimote rhyme or reason.

lYhere the Court has Passed an order granting tke last opportunity, it has not onlY possed a judicial order but also made a promise to the Parties to the lis that no further adjaurnments will be granted f,or uny reason. The Court must enforce its order and honour its promise. There is absolutelY no room ot choice to do anYthing else. The order to close the right to produce evidence must automatically follow failure to prodace 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 Provtsions of law and those resPonsible to interpret and imPlement it Such praclices must be discontinued, forthwith."

A Court of law can counter deliberate attempts for prolonging delays and causing abuse ofprocess of a Court, in two ways. First to avoid unnecessary and undue leniency in the matter of setting aside those orders where the Court reaches a conclusion that the other party had deliberately absented themselves or defaulted in performance of some CR No.725-Pf2OX),

l5

activities, required for further progress of suit, without any reasonable cause. Secondly when the Court is of the opinion that a party has defaulted in its duty vis-a-viz progress of suit but the Court consider that interest of justice would be served by affording funher chances, then the Court should levy cost which should be sufficient for fully compensating the other party for the time and money spent by it, in procuring legal assistance as well as the inconvenience caused to such party due to delay in the proceedings. It has been noted that in a number of cases the Court below normally asset aside such orders by levying very meager amount of cost, which are inconsequential for meeting expenses of the other party, which it had incurred on the proceedings. Besides, same also does not compensate other party for the inconvenience caused. District Appeal Courts in such cases also ignore expenses, inconvenience and hardship of respondents at the time of appeals filed against such orders, in the matter of levying of cost. Imposing proper and reasonable amount of

justice to cost in such cases would not only ensure cR Ito.729Pf2O2O.

the affected parties but would also be working as deterrence for the parties, which deliberately and maliciously employ the delaying tactics, which causes undue delay in litigation. Genuine cases where a party is prevented by sufficient cause in attending to a step in litigation should however be treated differently and in such cases a lenient approach should no doubt adoPted.

8.In light of what has been discussed above, instant civil revision was found lacking substance and same is accordingly dismissed' Learned Registrar of this Court is also directed to circulate a copy of this judgment in all the Courts of the province for information'

DGE

Dote ofhea ng l! announcement ofiudgment. . . .26.07.2021.

Dtu of preParution and signing of iudgmenl,.., 0t.08.2024.

,'A.gdrqn pS" 1.s8) Hon'blc Mr. tuslicc Wdt Ah'nad' CR Na.72SP|2O2O.