SECRETARY EDUCATION DEPARTMENT, GOVERNMENT OF N.-W.F.P., PESHAWAR

ORDER

' ABDUL HAMEED DOGAR, C.J.--- This petition is directed against judgment, dated 10-9-2007 passed by learned single Judge of Peshawar High Court, Peshawar whereby Civil Revision No,649 of 2007 filed by petitioner was dismissed and ex parte order passed by learned trial Court was maintained.

2. Briefly stated facts leading to the filing of instant petition are that respondent Asfandiar Khan filed suit against petitioners and others for recovery of compensation of land measuring four Kanals given by him to petitioners on the consideration that they would either provide him job in the education department or pay him compensation of the land. In pursuance of summons petitioners appeared at the initial stage but later on remained absent. However, private defendant filed written statement but later on his name was deleted from the array of respondents. Since petitioners remained absent as such ex parte decree was passed on 23-12-2003 against them.

Respondent filed application for execution of ex parte decree on 28-10-2004 in which bailable warrants were issued and in response whereof petitioners appeared before the Court and filed application for setting aside ex parte decree on 11-3-2005 but without filing application for condonation of delay. Said application was dismissed on 11-5-2005 and ex parte decree passed earlier was maintained. The Appellate Court while concurring with-the findings of the trial Court observed that petitioners had knowledge of suit as such their case would be covered under Article 164 of the Limitation Act, 1908 and were thus, required to file an application within 30 days. This order was maintained by the learned High Court in civil revision vide impugned judgment.

3. We have heard Sardar Shaukat Hayat Khan, learned Additional Advocate-General, N.-W.F.P. At length and have gone through the record and proceedings of the case in minute particulars.

4. Learned counsel for the petitioners admitted that petitioners Nos.1 to 6 initially entered appearance before the trial Court but later on remained absent and got the knowledge when bailable warrants were issued in execution proceedings against them. He contended that case of petitioner is covered under section 181 of the Limitation Act and not under Article 164.

5. We are not persuaded to agree with learned counsel for the petitioner. 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 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 Article 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, it was held by this Court in the case of Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCM R 631 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.

6. Accordingly, we do not find any reasons to interfere with the concurrent findings of the Courts below. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.