DURDANA AKBAR Versus GOVERNMENT OF SINDH

ORDER

1. Civil Miscellaneous Applications bearing Nos.4574 of 1996, 4575 of 1996, 4576 of 1996, 4577 of 1996, 4578 of 1996, 4579 of 1996; 4580 of 1996 and 4581 of 1996 are being disposed of by this common order as the parties, facts, circumstances and case-law are same and common.

2. The plaintiffs filed the suits for declaration and permanent injunction against defendants Nos.l and 2. After filing of the suits the summons and notices of application under Order 39, Rules 1 and 2, C.P.C., were issued to the defendants which were returned served as per the endorsement of the bailiff. The service was held good by the Additional Registrar (O.S.) on 23-8-1995. Another diary of the Additional Registrar (O.S.), dated 4-10-1995 which reads as follows:-

3. "Defendants 1 and 2 already served on 5-6-1995. None present on behalf of defendants Nos.l and 2. For final disposal date in due course. "

4. On 4-6-1995 while hearing C.M.As. Nos.3045 of 1995, 3046 of 1995, 3047 of 1995, 3048 of 1995, 3049 of 1995, 3155 of 1995, 3157 of 1995 and 3159 of 1995 the Court granted injunction with the following observation:--

5. "A notice of this application was served on both the defendants on 1-6-1995 but none .has appeared to contest the same. In the circumstances, interim stay is granted, as prayed, till further orders, Defendants would be at liberty to file any counter-affidavit and documents in support of their case, if so desired."

6. On 16-11-1995 the matter was placed before the Court for final disposal and at the request of the learned counsel for the plaintiff the suit was adjourned to a date in office: On 23-1-1996 the matter was again placed before the Court for _ final disposal. Affidavit-in-evidence on behalf of the plaintiff was filed. Even on that date none was present on behalf of the defendants. Keeping in view the affidavit-in-evidence furnished by the plaintiff, the suit was decreed as prayed with no order as to costs. On 18-6-1996 learned A.A.-G. Sindh for defendants Nos. l and 2 filed applications bearing C.M.As. Nos.3831 of 1996, 3832 of 1996, 3833 of 1996, 3834 of 1996, 3835 of 1996, 3836 of 1996 3837 of 1996 and 3838 of 1996 under Rule 159 of SCCR (O.S.) each, reads as follows:--

7. "It is prayed, on behalf of defendants No. in the above suit that for the reasons disclosed in the accompanying affidavit, this Honourable Court may be pleased to recall its order, dated debarring them from filing the written statement and may further be pleased to grant two weeks' time from the grant of this application to fife written statement on behalf of the said defendants.

8. The prayer is made in the interest of justice. "

9. The office raised objections as to how this application is maintainable? When the . suit already was decreed on 28-1-1996. The date of order to be recalled, be mentioned in the application. Compliance in a week. Even then the above office objection was not complied with. Subsequently, on 3-9-1996 the present Applications bearing Nos.4574 of 1996, 4575 of 1996, 4576 of 1996, 4577 of 1 1996, 4578 of 1996, 4579 of 1996, 4580 of 1996 and 4581 of 1996 under Order 9, Rule 10, C.P.C. read with section 151, C.P.C. were filed with prayer to recall/set aside the ex parte decree, dated 28-1-1996 and permit the defendants to defend the suit on merits. These applications were supported by affidavits sworn by S. Ali Anwar Shah, defendant No.2. Counter-affidavits to these C.M.As. were filed by one Ahmad Sharif, Attorney of the plaintiff.

10. On the basis of the above background of the matter I have heard Mr. Muhammad Qasim Mirjat, learned A.A.-G., who contended that defendant No.2 came to know of ex parte decree on 13-8-1996, whereafter the inquiries were made' in the office of this Court to ascertain the fate of the application moved on behalf of the defendants under Rule 159, SCCR (O.S.) and further that the relevant case papers and office record were misplaced, with the result that proper instructions could not be communicated to the office of Advocate-General, Sindh for filing the written statements in the suits. That non-appearance of the defendants in the suit was beyond the control of defendants.

11. Learned A.A.-G. referred PLD 1981 SC 21 and 1994 SCMR 1555.

12. Mr. Ahmad Mian Soomro, learned counsel for the plaintiffs, contended that the defendants were served by the bailiff of the Court and the learned Additional Registrar (O.S.) in view of the service so effected, held the service good and placed the matter for final disposal before the Court. Admittedly even after service of summons and notice for injunction application none appeared on behalf of the defendants with the result that on 4-6-1995 injunction applications under Order XXXIX, Rules land 2, read with section 151, C.P.C., filed by the plaintiffs were granted and the defendants were directed to file counter-affidavit and documents, if any, in support of their case, if so desired, but none had been filed so far. On 16-11-1995 the matter was placed before the Court for final disposal, but non appeared on behalf of the defendants. Again on 23-1-1996 the matter was placed before the Court for final disposal, affidavit-in-evidence on behalf of the plaintiff was filed and orders were reserved. Subsequently, on. 28-1-1996 neither anyone appeared on behalf of the defendants nor written statements were filed on their behalf in rebuttal of the plaintiffs' pleadings. The affidavit-in-evidence furnished by the plaintiffs also were not cross-examined by any one on behalf of the defendants. The evidence and documents furnished by the plaintiffs were not even challenged in the cross-examination; finding no other option by the Court the suits were decreed. This is also matter of record that through A.A.-G. the defendant No.2 filed applications under Rule 159 SCCR (OS) bearing C.M.As. Nos.3831 of 1996, 3832 of 1996, 3833 of 1996, 3834 of 1996, 3835 of 1996, 3836 of 1996, 3837 of 1996 and 3838 of 1996 on which the office raised objections. The objections were not complied with by the defendants and thereafter, the present applications were filed with the request to recall and set aside the ex parte decree, dated 28-1-1996 without showing sufficient cause for inordinate delay in submitting the applications. According to the learned counsel for the plaintiff, the defendants have to submit application under Article 164 of the Limitation Act to set aside the ex parte decree passed by the Court. The record shows that the defendants were served but they did not appear and also they did not file written statements. The defendants neither filed any counter-affidavit nor they filed documents in rebuttal to the application filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C., with the result that those applications were granted as prayed. The suits were placed before the Court for final disposal from 16-11-1995 to 23-1-1996 but none appeared on behalf of the defendants to contest the suits. The suits were decreed ex parte on 28-1-1996.. Application under Rule 159 of SCCR (OS) was filed on 18L6-1996 on which the office raised objections which were not complied with. Thereafter, the present hopelessly time-barred applications have been filed for setting aside the ex parte decree, dated 28-1-1996. The defendants even have not submitted application under Order IX, Rule la, C.P.C., whereas the applications under Order 9, Rule 10 read with section 151, C.P.C. were filed. That no sufficient cause has been shown in filing these belated applications on behalf of the defendants. Learned counsel relied upon PLD 1995 SC 396 and 1996.SCMR 596.

13. I have gone through the material placed with the case. After filing of the suit the defendants were served by the bailiff. Copy of the plaint alongwith its enclosures and application alongwith its enclosures were served upon the defendants Nos.l and 2 by the bailiff on 1‑6‑1995. The endorsement of the bailiff reads as under:‑‑

14. The above report bears stamp of office of the Member, Board of Revenue Sindh Camp, Karachi and Deputy Commissioner, Karachi East alongwith the signatures of the concerned clerk. The service was held good by the Additional Registrar and the matter was placed before the Court for final disposal. The defendants Nos.l and 2 though served but neither they filed any written statement nor they appeared before the Additional Registrar to contest the suits and applications under Order 39, Rules 1 and 2, C.P.C. with the result the applications were granted. Even after grant of the application they were directed to file counter‑affidavit and documents in support of their case, if they so desired, but unfortunately they did not do so. On 4‑6‑1995 the applications were granted even then the defendants did not file counter affidavit or any document. The matters were placed before the Court for final disposal on 16‑11‑1995 and 23‑1‑1996, as referred to hereinabove, even then the defendants did not appear and did not contest the suits. After filing of the affidavit‑in‑evidence and ex parte proof, the matter was reserved for orders. 'Even then none appeared on behalf of the defendants with the result that the suits of the plaintiffs were not contested by the defendants and their evidence so furnished has gone unchallenged. The Court did not find any other option except to decree the suit.

15. Learned A.A.‑G. filed applications under Order 159, SCCR (O.S.), which was a blank application, as referred to herinabove. The above applications are still pending under objections raised by the office. Whereas subsequently, the present applications were filed, requesting to recall and set aside the ex parte decree, dated 28‑1‑1996. The ex parte decree was passed on 28‑1‑1996 whereas the present applications were filed on 3‑9‑1996. There is inordinate delay about more than 7 months in filing of these applications. Prior to this, applications under Rule 159, SCCR (O.S.) were filed in which neither the defendants have been mentioned nor date of the order has been shown. The office raised objections which have not yet been complied with. The contention of the learned A.A.‑G. that since the defendants came to know about the order for filing this application is not borne out from the record. Rather the record speaks against the contention of the learned A.A.‑G. In this background of the matter, it would be pertinent to refer Article 164 of the Limitation Act which provides as follows:‑‑

16. 164.By a defendant for an Thirty days. The date of the order to set aside a decree decree or where passed ex parte. the summons was not duly served, when the applicant has knowledge of the decree."

17. Learned A.A.‑G. has also contended that Article 181 of the Limitation Act will be applicable in this matter which provides as follows:‑‑

18. "Applications for which no Three years When the right to period of limitation is apply accrues. provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure,

19. 1908."

20. Now I would like to discuss the case‑law referred to hereinabove by the learned counsel for the parties as follows:‑‑

(1) Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21.

21. In this matter their Lordship of the Supreme Court have observed that:‑‑

22. Ex parte 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. "

23. On the face of it with due respect to the authority, in this matter litigation was not pending between the parties in lower Court but the suits were filed and summons were duly served which is manifest from the record mentioned and referred to hereinabove. Whereas in the case referred to by the learned A.A.‑G. the civil suits were filed before the Civil Judge and the appeals were filed before the Appellate Forum and the matter after decision from the learned Lahore High Court was agitated before the Honourable Supreme Court, wherein it was observed that after return of the record from the High Court the defendants were having no notice of the date of hearing. Under the circumstances it was held that Article 181 of the Limitation Act will be Applicable in the case.

24. Whereas in this case the defendants were already served, neither they filed written statement nor they filed counter‑affidavit or objections with the result that keeping in view their absence and negligence in pursuing their matter the applications under Order 39, Rules 1 and 2, C.P.C., were granted and the affidavit‑in‑ex parte proof filed by the plaintiff were also not challenged by the defendants with the result that the evidence furnished by the plaintiffs have gone unchallenged, same was accepted and the suits were decreed ex pa 'rte. In my humble opinion in view of the above facts and circumstances this authority is not applicable to this matter.

(2) Jane Margret William v. Abdul Hamid Mian 1994 SCMR 155.

25. In this matter their Lordship of Supreme Court held that mention of a wrong provision of law cannot be considered fatal to the grant of relief if it is otherwise available under the law to an aggrieved party. This authority was referred to by the learned A.A.‑G. when it was pointed out to him that application to set aside the ex parte order is to be filed under Order 9, Rule 13, C.P.C. whereas the present applications have been filed under Order 9, Rule 10, C. P. C.

26. Be that as it may, if the material which has been discussed and referred. to hereinabove is considered, it is apparently crystal clear that the defendants were served with the notices/summons and they on their own accord did not appear and also did not file written statement or counter‑affidavits/objections to the applications with the result that the injunction applications were granted in favour of the plaintiffs and the suits were decreed as prayed. The applications for condonation of delay, if any, have not been filed and no sufficient cause for filing these hopelessly time barred applications has been made out. On the face of it though wrong section has been mentioned but even then the defendants under the circumstances are not entitled to be granted any relief. In my humble opinion this authority is also not relevant to the facts of the present case.

27. Mr. Ahmad Mian Soomro has relied upon Government of the Punjab through Secretary (Services) Services General Administration ant Information Department, Lahore and another PLD 1995 SC 396. In this authority their Lordship of Supreme Court, held that delay of each day. is to be explained. Government could not be treated differently than private litigant on question of limitation under section 5. Limitation Act, 1908.

(2) Muhammad Saleem and others v Ninkhtar Ahmad 1996 SCMR S96.

28. In this authority the case of the petitioners before the Supreme Court was that the ex parte decree was passed on 21‑6‑1977 and they were not served in the suit and that the ex parte decree was granted at their back. The petitioners came to know of the ex parte decree on 25‑8‑1980. On 29‑9‑1980 they made application for setting aside the ex parte decree, This means that they filed application for setting aside the ex parte decree after 34 days of acquiring knowledge thereof. In view' of Article 164 of the First Schedule to the Limitation Act, 1908, the `application should have been made within thirty days of the knowledge of the ex parte decree but the petitioners were late by four days in so doing. View taken by the learned Single Judge of the High Court was that this four days' delay had not been adequately explained and the revision petition was dismissed. Against this order the petitioners approached the Supreme Court where their leave to appeal was refused and the petitions were dismissed, with the following observation:‑‑ ,

29. "Provisions relating ' to the setting aside of an ex pane decree find mention in Rule 13 of Order IX of the Code of Civil Procedure. These provisions do not oblige a person making application for setting aside the ex parte decree to file certified copy of such decree alongwith his application. Learned counsel for the petitioners could not point out any other provision of law or rule whereunder the said application could not be made without appending thereto certified copy of the ex parte decree. Thus, even if it is assumed that the petitioners acquired knowledge of the ex parte decree on 25‑8‑1980, there is no good explanation for their failure to file application for setting the ex pane decree after four days of the running out of the period of limitation, namely, 30 days following acquisition of knowledge of the ex parte decree."

30. The case‑law referred to by Mr. Ahmad Mian Soomro, learned counsel for the plaintiff, in my humble opinion is relevant and applicable to the facts of the present suit.

31. Since the defendants were served through the summons/notices which service was held good by the Additional Registrar, the defendants admittedly did not file written statement in support of their case, they also did not file objections to the application under Order 39, Rules 1 and 2, C.P.C. The matter was placed in Court for final disposal. Even then the defendants did not appear and contest the suits. The evidence furnished bi the plaintiff have gone unchallenged with the result that the suits were decrec; ex parte. Learned A.A.‑G. filed applications under Rule 159 SCCR (O.S.~ without mentioning particulars of the defendants and also without the date of order and the office rightly raised the objections which were not even complied with. Thereafter; the learned A.A.‑G. filed applications, dated 3‑9‑1996 to recall and set aside the ex parte decree which is after about more than 7 months delay. The petitioners have not shown the plausible explanation for filing these applications so late. According to Article 164 of the Limitation act,the applications for setting aside the ex parte orders are to be filed within 30 days from the date of the order. Whereas the present applications have been filed after delay of about more than

32. 7 months. Even the delay of single day is to be explained by the parties concerned to the satisfaction of the Court.

33. For the aforesaid facts, circumstances, reasons and case‑law I find no substance in these applications which are hopelessly time barred which must fail and the same are accordingly dismissed with no order as to costs.

34. On 3‑6‑1998 after hearing learned counsel for the parties . the applications were dismissed. Above are the reasons for the same.

35. A.A./D‑17/K Applications dismissed.