GOVERNMENT OF N.W.F.P. Versus SURRYIA BEGUM

JAWAID NAWAZ KHAN GANDAPUR, J. ‑‑For the disposal of this appeal filed against the order dated 28‑7‑1993 of the learned Senior Civil Judge (Mr. Muhammad Arshad Khan), it is necessary to state briefly the facts of the case, which are as under:‑‑

1. The Deputy Commissioner/Land Acquisition Collector, Abbottabad acquired the land in question bearing Khasras Nos. 2284, 2285, 2286; 2287, 2288 and 2289 for the Government College for Women, Abbottabad, on 18‑3‑1987 vide: his award (Exh.P.W.2/1) under section 11 of the Land Acquisition Act, 1894. According to the said award, the compensation, which was to be paid to the affectees, is detailed below:‑‑---

1. Compensation of 657 sq. yds. Rs.1,77,510.00

& 4 sq. ft. at the rate of

Rs.30 per sq. ft.

Page Missed 58-59

Page Missed 102--103

2. Compensation of built‑up Rs.6,03,055.00 property.

3. 15% compulsory acquisition Rs.1,17,084.75 charges.

4. 6%D simple interest. Rs.3 ,098.74

Grand Total: Rs. 9.00.748.48

2. Out of this amount Mst: Surriya, objector/respondent (wife of Sheikh Mushtaq Ahmed) Pata Dawami Holder, was to be paid compensation in respect of Khasra Nos.2288 and 2289 only. Since the objector/respondent was not satisfied with the award in question, therefore, she filed an objection petition under section 18 of the Land Acquisition Act, 1894 before the Collector, who referred the same to the learned District Judge, Abbottabad for further necessary action. The District Judge entrusted the same to Senior Civil Judge, Abbottabad for disposal.

3. The case was registered, in the Court of Senior Civil Judge, on 6‑6‑1987. On 14‑7‑1987 the objector was represented by her counsel whereas the appellants/defendants were not available as they could not be served. Accordingly fresh notices were issued to them for 20‑9‑1987. On 20‑9‑1987 defendants/appellants Nos.l and 4 were absent, in spite of personal service, therefore, they were proceeded against ex parte. However notices issued in the name of defendants/appellants Nos.2 and 3 were not received back therefore, fresh notices were ordered to be issued against them for 26‑10‑1987.

4. On 26‑10‑1987 the learned Senior Civil Judge was not available as he had left the charge of his post as he had been promoted and, therefore, the case was adjourned to 6‑12‑1987.

5. On 6‑12‑1987 the objector/respondent was represented by her counsel Mr. Shaukat Elahi, Advocate. Defendants/appellants Nos.2 to 4 were represented by Mr. Muhammad Parvez, Junior Clerk, whereas defendant/appellant No.l was represented by Mr. Muhammad Muzaffar, Patwari Land Acquisition.

5‑A. An application on behalf of defendants/appellants Nos.l and 4 was submitted before the learned Civil Judge with the request that the ex parte proceedings initiated against them be set aside. The learned Senior Civil Judge accepted the prayer and set aside the ex parte proceedings against defendants/appellants Nos.l and 4. He however directed all the defendants i.e., defendants Nos.l to 4, to file their written statement on 9‑1‑1988 positively.

5‑B. On 9‑1‑1988 the defendants/appellants requested for the adjournment of the case so as to enable them to file their written statement. The request was granted by the learned Senior Civil Judge and the case was adjourned to 31‑1‑1988.

6. Since the Presiding Officer was on casual leave on 31‑1‑19$8, therefore, the case was adjourned to 17‑2‑1988. Finally the written statement was filed by the defendants/appellants on 17‑2‑1988. The case was accordingly adjourned to 2‑3‑1988 for framing of the issues. On that date the following issues were framed:‑‑

(1) Whether the objector has got a cause of action?

(2) Whether the objector is estopped to sue?

(3) Whether the objection petition is time‑barred?

(4) Whether the objection petition is incompetent in its present form?

(5) Whether the objection petition is bad due to non‑joinder and misjoinder of necessary parties?

(6) Whether the compensation amount has been received without protest, if so, its effect?

(7) Whether the compensation amount assessed and determined by the Acquisition Collector is inadequate and as such the objector is entitled for the compensation amount at the enhanced rate, in addition to the compulsory acquisition charges and interest as prayed for?

(8) Relief.

7. The case was then adjourned to 17‑3‑1988 for filing of list of witnesses. Since the Presiding Officer was on casual leave, therefore, no progress could be made and the case was adjourned to 29‑3‑1988 for the said purpose.

8. The lists of witnesses were filed on 29‑3‑1988 and the case was adjourned and fixed for recording the evidence of the objector/respondent Mst. Surriya Begum. On 30‑5‑1988 only the statement of Patwari Halqa was recorded and the case was adjourned to 4‑9‑1988, on which date, the statement of Patwari Land Acquisition was recorded. The case was then adjourned to 7‑11‑1988 for recording the remaining evidence of the objector/respondent.

9. No proceedings could take place on 7‑11‑1988 as the learned Presiding Officer was busy in the Election duty and as such the case was adjourned to 28‑1‑1989. Thereafter the case was adjourned to 3‑4‑1989, 30‑5‑1989, 27‑7‑1989, 12‑10‑1989, 23‑12‑1989, 21‑2‑1990 and 11‑4‑1990, for one reason or the other, as is apparent from the relevant order‑sheets. The remaining evidence of the objector/respondent could not be recorded on these dates.

10. On 28‑5‑1990 the evidence of the respondent/objector was available but the same could not be recorded because no body was present on behalf of defendants/appellants Nos.2 and 4. The learned trial Judge instead of initiating ex parte proceedings against the said two defendants/appellants, by way of abundant caution, issued fresh notices to them for 14‑7‑1991 to appear in the Court and join the proceedings. On 14‑7‑1991 defendant No.l was represented by his representative, whereas defendant/appellant No.4 was served but chose not to appear in the Court for reasons best known to him and was therefore, proceeded against ex parte.

11. Fresh notices were, 'once again, issued to defendant/appellant No.2 for 25‑9‑1990. On that date the case could not proceed further because of the non‑availability of the Presiding Officer who was busy in the Election duty. Accordingly the case was adjourned to 21‑11‑1990.

12. It may be mentioned here that on 21‑i1‑1990 although both the parties were present, as all of them were properly represented, as is clear from order‑sheet No.19 dated 21‑11‑1990, which is reproduced as under:‑‑---- however no progress was made and the evidence of objector/respondent was' not recorded.

13. From 16‑1‑1991 to 25‑9‑1991 the case was adjourned, for one reason or the other and finally it was on 25‑9‑1991 that the evidence of the objector/respondent was recorded and closed.

14. The case was then adjourned to 28‑10‑1991 for recording the evidence of defendants/appellants. Thereafter, as it appears from the subsequent order -sheets, the case was adjourned for many a times. It was on 29‑4‑1992 that Mr. Hafiz‑ur‑Rehman Qureshi, Senior Clerk, who represented the defendants, requested for the adjournment of the case which was granted by the learned Senior Civil Judge and the case was once again adjourned to 26‑5‑1992. On 26‑5‑1992 the defendants/appellants, once again, requested for the adjournment of the case for enabling them to produce their' evidence which was granted but this time on payment of costs of Rs.50. The case was then adjourned to 18‑6‑1992 for the needful. The defendants/appellants again made a request for another adjournment on 18‑6‑1992 and, as requested, the case was adjourned to 20‑7‑1992. On 20‑7‑1992 the defendants/appellants again prayed for the adjournment of the case which was granted, this time, on payment of costs of Rs.100. The case was then posted to 13-9‑1992 for recording the evidence of the defendants/appellants.

15. On 13‑9‑1992 'the learned counsel for the objector/respondent attended the Court whereas all the defendants/appellants absented themselves for no rhyme or reason. Since no prayer was made on their behalf for the adjournment of the case, as such they were proceeded against ex parte.

15‑B. The case was accordingly adjourned to 15‑10‑1992 for hearing the arguments. On 15‑10‑1992 ex parte arguments were heard and the case was adjourned to 17‑12‑1992 for orders.

16. On 17‑10‑1992 Mr. Mushtaq Ahmed, Advocate appeared on behalf of the defendants/appellants and submitted an application praying therein that the ex parte proceedings initiated against the defendants/appellants be set aside. The case was then posted to 20‑10‑1992 so as to enable the objector/respondent to file replication.

16‑B. On 20‑10‑1992 the defendants/appellants, once again, absented themselves whereas the replication was filed by objector/respondent through her counsel.

16‑C. Because of the non‑appearance of the defendants/appellants the application, for setting aside the ex parte proceedings, was dismissed in default and the case was adjourned to 21‑10‑1992 for orders.

16‑D. It was on 21‑10‑1992 that an ex parte decree, as prayed for, was granted to the objector/respondent against the defendants/appellants.

17. The defendants/appellants submitted an application on 2‑3‑1993 for setting aside the ex parte decree passed against them by the Senior Civil Judge. This application was submitted by the Special Government Pleader, Government of N.W.F.P., Abbottabad on behalf of all the defendants/appellants. The application was resisted/contested by the objector/respondent.

18. After hearing the learned counsel for the parties on 17‑7‑1993 the learned Senior Civil Judge adjourned the case to 28‑7‑1993 for orders. On the said date the application for setting aside the ex parte decree was rejected wherein the learned Senior Civil Judge (Mr. Muhammad Arshad Khan) held, in the concluding paragraph as under:‑‑----

"An application for setting aside of an ex parte decree where a party has once appeared must apply to the Court within 30 days and must advance cogent reasons for non‑appearance. The application in hand lacks both the qualifications and as such I am left with no alternate but to reject the same which is hereby rejected with costs."

19. Barrister Nasir‑ul‑Mulk, the then learned Advocate‑General N.‑W.F.P. has assailed the vires and legality of the order dated 28‑7‑1993 passed by the learned Senior Civil Judge through this FA.O. No.3 of 1994.

20. Mr. Muhammad Aslam Khan, Assistant Advocate‑General for the defendants/appellants and Mr. Shaukat Elahi Khan, Advocate for the objector/respondent present and heard at length. Record of the case perused, with some degree of care, with the assistance of the learned counsel for the parties.

21. To assail the impugned order, the learned Assistant Advocate -General, appearing on behalf of the appellants has tabled the following point for our consideration:‑‑ "that the learned Senior Civil Judge has wrongly applied Article 164 of the Limitation Act while rejecting the application of the appellants/defendants. In fact this is not a case in which the appellants/defendants did not appear on the first date of the hearing and as such this act of the appellants/defendants did not come within the mischief of Order 9, Rule 6(1)(a) of Civil Procedure Code. The correct Article of the Limitation Act applicable to the facts of this case is Article 181 which prescribes a period of three years".

22. On the other hand, the learned counsel for the objector/respondent, submitted at the Bar that the stance taken up on behalf of the defendants/appellants was not correct inasmuch as they were properly served, in accordance with law, and were properly represented before the learned Senior Civil Judge on various dates. However, in the event of their failure to appear in Court and join the proceedings at a latter stage, the trial Court had correctly initiated ex parte proceedings against them. He further drew our attention to the fact, that the case was adjourned for quite a few times, at the request of the defendants/appellants and therefore, in view of the direct knowledge of the suit in question i.e. litigation and active participation therein, as mentioned above, it does not lie in the mouth of the defendants/appellants to say now that they had no knowledge about the ex parte decree passed against them.

22‑B. He further stated that this being the correct position the case of the appellants is governed by Article 164 and not by Article 181 of the Limitation Act, 1908. He further submitted that the ex parte decree was passed against the appellants on 21‑10‑1992 whereas the application for setting aside the said ex parte decree was submitted before the Court concerned on 2‑3‑1993 which was beyond the prescribed period of 30 days and was therefore, hopelessly barred by time. As such the same could not be entertained by the learned Senior Civil Judge, who had rightly dismissed the same on 28‑7‑1993.

22‑C. This is the crux of the arguments of the learned counsel for the respondent/objector.

23. A perusal of the record of the case would reveal the factual position which is that appellants Nos. 1 to 4 were proceeded against ex parte on 20‑9‑1987 in the first instance. However on their request/prayer the ex parte proceedings, ordered against them, were set aside on 6‑12‑1987. Again appellants Nos. 2 and 4 absented themselves without any valid reason on 28‑5‑1990 but the learned Senior Civil Judge, instead of initiating ex parte proceedings against them, by way of abundant caution, issued fresh notices to them for 14‑7‑1990 to join the proceedings. On 14‑7‑1990 appellant No.4, in spite of service, did not bother to appear in the Court and therefore, was placed ex parte once again.

23‑B. Strangely, however, he was allowed to join the proceedings on 21‑11‑1994 once again, as is clear from order‑sheet No.19, although no request or prayer was made by him or on his behalf for setting aside the ex parte proceedings initiated against him.

24. It may be' noted that on 29‑4‑1992 the case was adjourned on the request of Mr. Hafiz‑ur‑Rehman Oureshi, Senior Clerk, who represented the appellants. Again, on 26‑5‑1992 the case was adjourned, as requested, on payment of costs of Rs.50 as the appellants/defendants' evidence was not made available.

25. It is established from record that undue favour was extended to the appellants/defendants who had absented themselves on 18‑6‑1992 but the Senior Civil Judge did not initiate ex parte proceedings against them as is apparent from the relevant order‑sheet which is reproduced for ready reference:‑‑

26. On 20‑7‑1992 the learned counsel for the parties were present and once again a request was made on behalf of the appellants/defendants to adjourn the case as their evidence was not available. Their request was granted once again but this time on payment of costs of Rs.100 and the case was adjourned to 13‑9-1992 for the said purpose.

27. On 13‑9‑1992 the appellants absented themselves again and were proceeded, against ex parte and the case was adjourned to 15‑10‑1992 for hearing the ex parte arguments. On 15‑10‑1992 the learned trial Court heard the ex parte arguments (as the appellants/defendants were not present), and adjourned the case to 17‑10‑1992 for order.

28. On 17‑10‑1992 instead of announcing the order, the learned trial Judge entertained the application submitted on behalf of the appellants/defendants by their counsel, Mr. Mushtaq Ahmad, Advocate, for setting aside the ex parte proceedings. The case was then adjourned to 20‑10‑1992 to enable the objector/respondent to file her replication.

28‑B.On 20‑10‑1992 the learned counsel for the objector/respondent submitted his replication but the appellants, as usual, chose not to attend the Court. As a consequence thereof their application for setting aside the ex parte proceedings was dismissed in default and the case was adjourned to 21‑10‑1992 for arguments/order. Even on that date the appellants/defendants did not bother to appear before' the learned Senior Civil Judge who then granted an ex parte decree to the objector/respondent.

29. The learned Assistant Advocate‑General in support of his submissions placed reliance on the following case‑law:‑‑ ..

(i) PLD 1981 Supreme Court 21:

Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan:

"O.IX, Rr.6 & 13 read with Limitation Act (IX of 1908), Arts., 164 & 181‑‑‑Ex parte decree, setting aside of‑‑‑Limitation‑‑‑Any cause shown for non‑appearance at first hearing, whether non‑service of summons or any other sufficient cause, e.g., accident of act of God ‑‑‑Art.164 applies to such case and limitation commences from date of knowledge of decree (when summons not duly served) otherwise from date of decree‑‑‑Application for setting aside exparte decree not covered by Art.164 governed by residuary Art 181 giving period of limitation as three years from accrual of right to apply‑‑‑Ex arte decree passed on a date after initial service of summons on fresh hearing after return of records from High Court, and defendants having no notice of date of hearing when such decree passed‑‑ Applications for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree, held, within prescribed limitation period."

(ii) R.F.A. No. 18 of 1987 (D.B. Case):

It appears that Article 164 of the Limitation Act, 1908 had been misapplied by the trial Court. It was not a case where the defendant did not appear on the first date of hearing within the meaning of Order IX, Rule 6(1)(a) of the Civil Procedure Code. Hence Article 164 of the Limitation Act was not applicable and instead Article 181 of the Limitation Act should have been applied which prescribes a period of 3 years for moving an application of this nature. In this view of the matter the finding of the trial Court that the application of the appellant was time‑barred cannot be sustained."

(iii) PLD 1990 Supreme Court 713:

Kamran Co. and others v. Messrs Modern Motors and another;

"O.IX, R.6(1)(a)‑‑‑Provisions of O.IX, R. 6(1)(a) would be applicable after the summons have been duly served and the defendant does not appear‑‑‑Where after the summons, the appellant had appeared and filed the written statement and, therefore, issues had been settled, it was obligatory on the Court to have decided the case on merits‑‑ Where no evidence was produced by the respondent/plaintiff a decree could not be passed."

(iv) PLD 1994 Peshawar 95:

Mst. Hussain Jan and 8 others v. Muhammad Suleman through legal heirs and 16 others.

"(b). O. IX, R.13‑‑‑Limitation Act (IX of 190:

Art. 181‑‑‑Application for setting aside ex parte decree ‑‑‑Limitation‑‑‑ Application for setting aside ex parte decree under O .IX R 13 C P.C. would not be barred by time if filed within three years under Art. 181, Limitation Act 1908."

30. Reliance was placed, on the other hand, by the learned counsel for the respondent, in respect of his contentions, on the following case‑law:‑‑--

(i) PLD 1979 Supreme Court 18:

Mst. Afzal Begum and others v. Y.M.C.A. through its General Secretary.

"(d) ON. R. 20 read with O .IX R 13 and O XLI R 21 and Limitation Act (IX of 1908):

Arts. 164 & 169‑‑‑Ex parte decree or order setting aside of‑‑ Limitation‑Article 164‑‑‑Limited to suits‑‑‑Article 169‑‑‑Limited to appeal from decree and not applicable to appeal heard ex parte from an appellate order‑‑‑[Limitation‑‑‑Ex parte decree].

Article 164 of Limitation Act (IX of 1908) is applicable to an application by a "defendant" for an order to set aside a "defence" passed ex parte and the prescribed period of limitation of thirty days starts running from the date of the "decree" In the context it seems that this article is limited to suits. Likewise under Article 169 of the Act the limitation for an application for rehearing of an appeal heard ex parte is prescribed as thirty days from the date of the "decree" in appeal, or where notice of the appeal was not duly served, when the applicant has knowledge of the "decree". The third column of this article shows that it is limited to an appeal from a decree and it has no application to an appeal heard ex parte from an appellate order to distinguish it from a decree."

(ii) PLD 1980 Lahore 181:

Col. Atta‑ur‑Rehman v. Ahmed Yar Khan and 3 others.

(A) O.IX. R.13, S. 151 and Limitation Act ,(IX of 19081 Art 164‑‑ Limitation Act‑‑‑Article 164, held, applicable to every application for setting aside ex parte decree regardless of whether reasons given for having ex parte decree set aside constitute sufficient cause as contemplated by Order IX, R.13, C.P.C. or some other reasons furnished to pursuade Court to set it aside under S.151, C.P.C.

Article 164 of the Limitation Act, 1908 applies to every application for setting aside an ex parte decree regardless of the fact that the reasons given for having the ex parte decree set aside constitute sufficient cause as contemplated by Rule 13 of Order IX, C.P.C. or some other reasons are furnished to pursuade the Court to set aside the ex parte decree in exercise of its inherent powers under section 151, C.P.C. If the intention of the framers of the said Act had been to confine the application of Article 164 to such application only as are made for setting aside an ex parte Order under Order IX R 13 they would have mentioned the said provisions in the first column of Article 164 but this was not done. It would, therefore follow that they intended to apply Article 164 to all sorts of applications for setting aside the ex parte decree."

(B) O.IX. R. 13 and Limitation Act (IX of 1908), Arts. 164 & 181‑‑ Application for setting aside ex parte decree being specifically dealt with in Art. 164 residuary provisions of Art. 181 held, not applicable to such application."

(iii) PLD 1985 Supreme Court (AJ&K) 74:

Fareed Khan v. Gulzar Khan and others.

"Arts. 164 & 181‑‑‑Civil Procedure Code (V of 1908) O .IX R 6‑‑‑Ex parte decree‑‑‑Setting aside of‑‑‑Application for‑‑‑Period of limitation‑‑‑Article 164 of Limitation Act, 1908 applies to all cases of ex parte decrees, whether passed in pursuance of ex parte proceedings taken directly under R.6(1) of O.IX C.P.C or by reference due to non‑appearance of a defendant on an adjourned date of hearing under R.20 of OXVII. C.P.C."

(iv) 1987 Supreme Court (Monthly Review) 150:

S. Irshad Hussain and another v. Aziz Ullah Khan and another.

(A) Art.185(3)‑‑‑Civil Procedure Code (V of 1908) S.24‑A(2) & O.IX, R.13‑‑‑High Court (Lahore) Rules and Orders, Vol, I, Chap., XIII, Para.6‑‑‑Leave to appeal granted to examine whether High Court‑had correctly interpreted S.24‑A(2) C.P.C. read with para. 6, Chap. XIII, Vol.1 of High Court Rules and Orders.

(B) S.24‑A(2)‑‑‑High Court (Lahore) Rules and Orders, Vol, I, Chap.XIII, para. 6‑‑‑Introduction of S.24‑A in Civil Procedure Code‑‑ Background and purpose‑‑‑Transfer of suit‑‑‑Appearance of parties‑‑ Application for setting aside ex parte decree‑‑‑Section 24‑A(2), C.P.C. makes it obligatory on parties to get themselves informed of future date of hearing and Court where case transferred‑‑‑Duty of Court only to inform parties when they approach it for the purpose‑‑‑No indication found on record that any defaulting defect had approached any of Courts for such purpose‑‑‑Record of proceedings, dispute arising over documents, power of attorney and authorisation and findings of facts leading to conclusion that all defendants‑respondents had a common cause, they allowed two of respondents to prosecute their cause and had not independently any intention of appearing or contesting claim at any stage‑‑‑Defendants‑respondents in such circumstances held were not entitled to any equitable consideration law being not entirely on their side‑‑‑Judgment of High Court setting aside ex parte decree passed against defendants‑respondents set aside and that of appellate Court restored and application of defendants respondents under O.IX R13, C.PC. dismissed."

(v) 1989 MLD 3410 Karachi (D.B)---

Mir Abbas Khan and another v. Mrs. Dianat Fatima and 9 others.

(E) OIX R 13‑‑‑Limitation Act (IX of 1908), Art.164‑‑‑Ex parte decree, setting aside of‑‑‑Defendants against whom ex parte decree was passed, were duly served with summons and were represented all along on all dates of hearing from filing or written statement up to passing of decree, by their duly appointed counsel whose Vakalatnama on record was not discharged by order of Court‑‑‑Ex parte decree was passed against defendant because counsel representing them, stated at last date of hearing "no instructions"‑‑‑Application for setting aside ex parte decree passed against them filed long after expiry of 30 days, held, was time‑barred.

(F) OIX R.13‑‑‑Limitation Act (IX of 1908)‑S.5 & Art.164‑‑‑Ex parte decree, setting aside of‑‑‑Defendants filed application for setting ex parte decree passed against them long after expire of prescribed period of 30 days‑‑‑Defendants, neither having offered any explanation for such delay in application nor filed application for condonation of such delay‑‑‑Contention of defendants that Court should have condoned delay in making applications for setting aside ex parte decree held, was ill‑founded:"

31. Needless to mention here that when an ex parte decree is passed against the appellant, he has more than one remedy available to him. He can‑‑

(i) apply under Order 9, Rule 13, C.P.C. for setting aside ex parte decree;

(ii) invoke the reviewal jurisdiction of the trial Court for setting aside ex parte decree under section 114, C.P.C. read with Order 47, Rule 1, C.P.C. and

(iii) challenge the validity of ex parte decree on merits.

32. In case a defendant applies under Order 9, Rule 13, C.P.C. all that he is required to do is‑‑

(i) to satisfy the Court that the summons were not duly served, or,

(ii) to show that he was prevented by any sufficient cause from appearing when the suit was called for hearing.

33. In the present case, as far as the appellants are concerned, we find no averment in respect of these twin elements. In the absence of such averments namely that they were not properly served or that they were prevented by sufficient cause, beyond the human control, from appearing in Court on the date fixed for hearing in the suit, it is not rash to presume that they had full knowledge about the date of hearing and that they had no good grounds to show that their non‑appearance on the relevant date:‑‑

(i) when the ex parte proceedings were ordered against them and/or;

(ii) when the ex parte decree was passed against them; was not wilful or intentional or it was beyond their control.

34. It may be highlighted here that in order to set aside an ex parte decree the onus heavily lies on the defendant to satisfy the Court that there was sufficient cause by which he was prevented to appear in the Court when the suit was called for hearing. To appreciate the contention of the defendants/appellants it is therefore necessary to go through the contents of the application filed by the defendants/appellants, carefully, for setting aside the impugned ex parte decree. For the sake of convenience paras. Nos.2 to 5 of the said application are reproduced as under:‑‑--

35. On the very face of it neither of the averments made above has any substance or ring of truth. We have held above that the defendants/appellants were properly served and were duly represented not only by their representative/subordinate but also by their Advocate. In point of fact the appellants had been given undue favourable treatment by the learned Senior Civil Judge, They were placed ex parte at two different stages and had not applied for setting aside ex parte proceedings against them, nevertheless, they were allowed to be represented on future dates of hearing through their agent/subordinate/counsel and allowed to take active part in the proceedings. The conduct of the defendants/appellants is worthy of taking note of. Some times they participated in the proceedings through their representative/subordinate/Advocate (Mr. Mushtaq Ahmed), who were never disowned by them at any time or stage and then their sudden, abrupt and dramatic disassociation from the proceedings, which had by then entered a crucial stage.

35‑B. This would essentially/totally demolish the pleas taken by them. They had gained personal knowledge of the institution/proceedings of the suit through their representatives/subordinates/counsel and therefore, in the circumstances, it can be said with a great degree of certainty that they had full knowledge about the existence of ex parte proceedings initiated against them as well as the impugned ex parte decree passed against them on 21‑10‑1992. Their application dated 2‑3‑1993 for setting aside the ex parte decree, after a lapse of more than four months, is thus hopelessly barred by time within the meaning of Article 164 of the Limitation Act, 1908 which prescribes only 30 days period from the date of decree or knowledge of such ex parte decree.

36. As far as the contention of the learned Assistant Advocate‑General that the provisions of Article 181 of the Limitation Act are applicable to the facts of the present case, is concerned, we are afraid we cannot agree with him because application for setting aside ex parte decree being specifically dealt with in Article 164 of the Limitation Act, the residuary provisions of Article 181 of the Limitation Act would not apply to such application. It was held in PLD 1986 Supreme Court 74 "Industrial Development Bank of Pakistan v. Allied Bank of Pakistan and another as under:‑‑

"(C) Where an Act creates an obligation and enforces performance in specific manner, general rule, held,would be that performance could not be enforced in any other manner.

(D) Right created by statute‑‑‑Action, held, would not be for infringement of a right created by statute, where another specific remedy infringement was provided by same state."

37. Beside this it may be pointed out that the facts of the case relied upon by the learned Assistant Advocate General are on different footings and thus cannot be followed in the circumstances of the instant case. In the case reported in PLD 1981. Supreme Court 21 the residuary Article 181 was made applicable because in that case, after the return of the record from the High Court, fresh notices were not issued to the defendants regarding the date of hearing when such ex parte decree was passed. Accordingly the application for setting aside ex parte decree which was made within a period of three years was held to be well within time. This is not the case in hand.

38. As far as case, R.F.A. No.18 of 1987:

Executive Engineer, Kohistan v. Sahibullah, is concerned in that case it was held:‑‑--

"That in view of the fact that besides the present suit two other suits of similar nature between the same parties were also pending before the trial Court and proceedings in all the three suits were being, conducted simultaneously, there was sufficient cause for non‑appearance of the appellant and for not moving the application promptly for setting aside the ex parte decree, for, the appellant, in the absence of the record which was in the custody of the Kohistan Development Board, was bona fide under the impression that only one suit i.e. 111/1 was pending against the Government The contention is that if the appellant could promptly apply for setting aside the ex parte decree in suit No.111/1 there was no reason why he should not have done so in the present case (Suit No 104 1)."

39. A perusal of the facts detailed above it is crystal clear that the facts of that case are quite different from the facts of the case which is before us for adjudication.

40. Similarly the facts of the case reported in PLD 1990 Supreme Court 713 are also different from the facts of the case in hand. In that case it was held that when, after the summons the defendant had appeared, filed written statement and thereafter issues had been settled it was obligatory upon the Court to have decided it on merits where no evidence was produced by the respondents/plaintiffs a decree could not be passed. As against this, in the case in hand, evidence was produced by the objector/respondent which was duly recorded by the learned Senior Civil judge and thereafter ex-parte decree was passed.

41. Similarly the facts of the case reported in PLD 1994 Peshawar 95, it is respectfully stated, are different and are not attracted to the facts of this case.

42. On the other hand, it has been clearly laid down that Article 164 and not Article '181 would apply to the applications for setting aside ex parte decree because the same has been specifically dealt with in Article 164 of the Limitation Act and as such the residuary provisions of Article 181 of the Limitation Act would not be applicable (PLD 1980 Lahore 181). Similarly it was held in case reported‑in PLD 1979 Supreme Court 18 that Article 164 of the Limitation Act, 1908 is applicable to an application by a defendant for an order to set aside a decree passed ex parte and the prescribed period of limitation of thirty days starts running from the date of the decree or where the summons was not, duly served when the applicant has knowledge of the decree. In this context, it seems, that this Article is limited to suits. It may be pointed out, with respect, that in that case it was also held that when an ejectment order is passed ex parte, by High Court in appeal under section 15(4) of the West Pakistan Urban Rent Restriction) Ordinance Act VI of 1959, the same cannot be treated as a decree and therefore the provisions of Article 169 of the Limitation Act would not apply and the case would be governed by Article 181 of the Limitation Act and an application for rehearing of the appeal could be made within a period of 3 years.

43. In the case reported in 1989 MLD 3410 Karachi (D.B.) it was held that the defendants against whom ex parte decree was passed were duly served with summons and were represented all along on all dates of hearing from filing of written statement up to passing of decree by their duly appointed counsel whose Vakalatnama on record was not discharged by the order of the Court and the, ex parte decree was passed against the defendants because the counsel representing them stated at the last date of hearing that he had no instruction application for setting aside exparte decree passed against them filed long after the expiry of 30 days was held barred by time. Again it was held in a case reported in PLD 1995 SC (AJ&K) 74 that period of limitation, for setting aside the ex parts decree, would be governed by Article 164 and not by Article 181 of the Limitation Act. It was held that Article 164 of Limitation Act, 1908 applied to all cases of ex parte decree whether passed in pursuance of ex parte proceedings taken directly under Rule 6(1) of Order 9, C.P.C. or due to non‑appearance of a defendant on an adjourned date of hearing Rule 2 of Order 17, C.P.C.

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 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.

45. As discussed in para. 37 above, it may be mentioned that as and when the law provides a particular thing to be done in a particular manner/mode, then in that case, the action must be taken according to the prescribed mode and in no other way. In this respect we are fortified by the following cases:‑‑

(i) PLD 1964 Supreme Court 536 E.A. Evans v. Muhammad Ashraf.

(B) -------------------Maxim: Expressum facit cessare tacitum: (If doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful).

(ii) PLD 1971 Supreme Court 61 Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others:

(C) "Interpretation of statutes‑‑‑Neglect of plain requirement of an absolute statutory enactment prescribing: how something is to be ‑‑‑Held, would invalidate thing being done in some other manner."

(iii) PLD 1976 Peshawar 66 (D.B.I Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman, Central Secretariat, Islamabad and 3 others.

(K) Para 2 proviso 3 as amended by Land Reforms (Amendment) Act (XXXIX of 19751 S.2 read with Land Reforms (Amendment) Act. 1973‑‑‑Limitation‑------------ Commission could not exercise suo motu powers in this regard to help petitioners whose remedy stood barred by Limitation‑‑‑Law providing a particular mode action must be taken according to such mode and in no other way."

46. In the circumstances, we are of the considered view that there was no justification for the learned Senior Civil Judge to have set aside the impugned ex parte decree. We also do not find any reason or ground to interfere with the E impugned order dated 28‑7‑1993 of the learned Senior Civil Judge, Abbottabad. Accordingly we are of the opinion that this appeal does not merit consideration and is accordingly rejected with costs.

47. Before parting with the case we would like to observe that the Secretary to the Government of N.‑W.F.P., Education Department, Peshawar should hold a proper inquiry in this matter, fix responsibility and take appropriate disciplinary action against the official/officials who is/are guilty of negligence, wilful or otherwise. The Deputy Registrar is directed to send a copy of this judgment to the Secretary concerned for further necessary action.

AA./1712/P Appeal dismissed.