GHULAM HASSAN M. PARYANI Versus KARACHI PORT TRUST

ORDER

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the judgment of the learned Additional District Judge, Sialkot, dated 19‑5‑1980 dismissing the petitioners' appeal against the order of the learned Civil Judge, dated 12‑6‑1985 whereby petitioners' application under section 12(2), C.P.C. was dismissed.

2. Facts giving rise to this petition, briefly stated, are that the suit filed by Umar Hayat, respondent No.1against the present petitioners for declaration and joint possession of the land in dispute was decreed ex parte by the Civil Court on 1‑11‑1972. Petitioners filed an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree on 18‑1‑1973 alleging therein that they were not duly served and that the plaintiff‑respondent obtained the ex parte decree on the basis of a false report of the process‑server about the service of summons. This application was dismissed by the learned trial Court vide order, dated 15‑2‑1979 on the ground of limitation as also on merits. Learned trial Court held that the petitioners were properly served under Order 5, Rule 20, C.P.C. and there was thus no sufficient and valid ground to set aside the ex parte decree. Appeal filed by the petitioners met no better fate and was dismissed .by the learned Additional District Judge vide judgment, dated 7‑11‑1983. Petitioners did not pursue the matter any further and instead moved an application under section 12(2), C.P.C. on 25‑2‑1984 alleging therein that an earlier suit brought by the plaintiff‑respondent was dismissed by the Civil Court on 29‑4‑1955 which operated as res judicata. Second suit of the plaintiff‑respondent was, therefore, barred and an ex parte decree passed therein was without jurisdiction. It was also alleged that the ex parte decree was obtained fraudulently by procuring a false report from the process‑server. It was pleaded by the petitioners that although the application was apparently time‑barred but since the impugned ex parte decree was without jurisdiction, bar of limitation was not attracted. The application after contest by the plaintiff‑respondent was dismissed by the Civil Judge vide order, dated 12‑6‑1985 holding that it was hopelessly time‑barred. Learned Civil Judge observed that the petitioners had come to know of the ex parte decree when they filed an application under Order 9, Rule 13, C.P.C. and that the limitation reckoned from the date of knowledge, the application under section 12(2), C.P.C. was barred by time. Petitioners preferred an appeal though admittedly no such appeal was competent. Be that as it may, learned Additional District Judge vide order, dated 19‑5‑1986 dismissed the appeal repelling the petitioners' contention that the second suit filed by the plaintiff‑respondent wherein ex parte decree was passed was hit by bar of res judicata. On perusal of the relevant record, learn‑,d Additional District Judge observed, inter alia, that it was not proved that the disputed properties in both the suits were the same. As regards the objection regarding non‑service of summons, learned Additional District Judge referred to the earlier adjudication on the petitioners' application for setting aside the ex parte decree and held that the petitioners having had the knowledge as far back as the year 1.973, there was no ground for condonation of delay in filing the application under section 12(2), C.P.C.

3. I have heard the learned counsel for the petitioners and have perused the record. It is not denied by the learned counsel and in fact, it is a matter of record that the petitioners had filed the application under Order 9, Rule 13, C.P.C. on 18‑1‑1973 for setting aside the ex parte decree which application, as noted above, was dismissed by the trial Court and the petitioners' appeal also. failed. Petitioners, therefore, undoubtedly had the knowledge of ex parte decree on 18‑1‑1973. They, however, filed the application under section 12(2) on 25‑2‑1984 i.e. almost four years after section 12(2), C.P.C. was brought on the Statute book. It may be noted that subsection (2) was added by Civil Procedure Code (Amendment) Ordinance (X of 1980) on 26‑3‑1980. Thus, viewed from whatever angle, learned Courts below have rightly dismissed the petitioners' application under section 12(2), C.P.C. on the ground of limitation holding that there was no valid ground for condonation of delay. Learned counsel has, however, contended that the suit filed by the plaintiff was hit by the bar of res judicata and, therefore, ex parte decree passed therein was without jurisdiction and a complete nullity and as such question of limitation did not arise. The contention has no force. Even if it be assumed, that the suit as contended by the learned counsel was barred by res judicata, the decree e passed therein would not be rendered a complete nullity. It would have effect unless set aside in appropriate proceedings. Court entertaining the suit cannot be said to have acted without jurisdiction. Reference with advantage may be made to the following statement of law appearing at page 413 of Woodroofe and Ameer Ali's Law of Evidence (8th Edition):‑‑‑

"It cannot be said that whenever a decision is wrong in law or violates a rule of procedure the Court must be held incompetent to deliver it. It has never been and could not be held that a Court, which erroneously decrees a suit which it should have dismissed as time-barred or as barred by the rule of res judicata, acts without jurisdiction and is not competent to deliver its decree."

4. In the aforesaid view of the matter, it is doubtful if section 12(2) was at all attracted to the instant case. Be that as it may, even if the ex parte decree, as alleged by the petitioners, was without jurisdiction, they had to assail it within the limitation period if they wanted to have it set aside. In the present case, whether the limitation is computed from the date of the knowledge of the ex parte decree or from the date when amended provision was incorporated in section 12, the application filed by the petitioners under section 12(2), C.P.C. on 25‑2‑1984 was limitation‑barred.

5. Apart from what has been held above, petitioners in view of their conduct are disentitled to any relief in discretionary writ jurisdiction. As noted above, it was found as a fact in the proceedings under Order 9, Rule 13, C.P.C. that the petitioners were duly served but they failed to appear to contest the suit. This finding holds the field. Petitioners having chosen not to contest the suit at the relevant time, they cannot be heard to contend at this late stage that the suit was hit by the bar of res judicata..

Upshot of the above discussion is that I find no merit in this petition which is dismissed in limine.

AA./F‑22/L Petition dismissed.