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Civil Appeal No. 153 of 1977, decided on 27th June, 1984.

(On appeal from the Order of Lahore High Court, dated 2-3-1977 in C. R. No. 191 of 1977).

--- Art. 185(3)-Limitation Act (IX of 1908), S. 5-Time to start running from date of knowledge of decree-Leave to appeal granted to examine correctness of approach of first appellate Court and High Court in so far as question of limitation was concerned.-[Limitation].

-- O. IX, r. 13-Limitation Act (IX of 1908), S. 5 & Art. 164- Application for setting aside ex parte decree-Knowledge of ex parte decree-Limitation-Application made before Revenue Officer by or on behalf of party against whom such decree was passed and in which a counter-application was made by decree-holder wherein decree-holder made a mention about such ex parte decree No certainty that on date of filing of such application, person against whom ex parte decree was passed was also present before such Revenue Officer-Reliance on note underneath signatures of decree -holder to the effect that person against whom such decree was passed was present at time of filing of such application by his counsel was of no use to decree-holder-Such entry could not at all be relied upon-Record having been misread by first appellate Court and High Court, Supreme Court accepted appeal against decree-holder and remanded case to trial Judge for fresh trial of suit with direction that due opportunity of hearing be given to both parties.-[Limitation].

Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan P L D 1981 S C 21 ref.

Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Ch. M. Abdus Saleem, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate-on-Record (absent) for Respondent,

Date of hearing : 27th June, 1984.

.-This appeal through leave of this Court is directed against judgment dated 2-3-1977 of the Lahore High Court ; whereby a Civil Revision against refusal to set aside an ex parte decree for specific performance of a sale, was dismissed.

The respondent a lawyer through a suit wanted to enforce an alleged agreement for sale of over 58 Kanals of land against the appellant who is stated to be a very old lady. He filed a civil suit on 18-3-1974. The summons for appearance of the defendant/appellant were issued on 21st of March, 1974 for 17-4-1974. The process-server reported refusal by the old lady. But the Court, it is stated by the respondent's counsel by way of abundant caution ordered re-issuance of summons on 17-4-1974 for 13-5-1974. The process-server again reported refusal but this time, added that he had effected the service through chaspandani.

On 13-5-1974 the appellant being absent ex parte proceedings were ordered as a result of which an ex parte decree was passed against her on 25-5-1974. It may be noted that 13-5-1974 was not the first date of appearance in the suit. It was the adjourned date. The original date was 17-4-1974 when the Court had ordered re-issuance of the summons despite an earlier so-called service by refusal to accept the summons.

The appellant filed an application on 3-12-1974 for setting aside the ex parte decree stating that she gained knowledge on 5-11-1974, therefore, it was within limitation. She however also filed an application for. condonation of delay under section 5 of the Limitation Act by way of abundant caution. Two issues were framed one on limitation and the other on merits. The learned trial Court dismissed the application on 4-6-1975 with the observation that the applicant had failed to show sufficient cause. The District Judge while dismissing her appeal however examined at length the question of limitation and held that if the time is to start running from the date of the knowledge of the decree then the appellant having obtained the knowledge on 30th of October, 1974, her application for setting aside the ex parte decree was barred by a couple of days. The High Court on appellant's revision did not examine any of the issues in detail and made a simple observation that the application of the appellant was rightly dismissed as time-barred. Leave to appeal was granted to examine the correctness of the approach of the learned District, Judge and the High Court in so far as the question of limitation is concerned Although the case would be covered by the rule laid down in Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (P L D 1981 S C 21), yet it is necessary to examine the argument which prevailed with the District Judge and has also been reiterated from the respondent's counsel before us.

An application had been made before Naib-Tehsildar by or on behalf of the appellant in which a counter application was made by the respondent on 30th October 1974. It is this application submitted by the respondent which the District Judge thought was made in presence of the appellant, therefore, she would have certainly gained knowledge of the decree, d mention of which was made in this application by the respondent.

Although on face the matter appeared simple but on proper scrutiny it has been found that there is no certainty that on 30th of October 1974 the appellant was present before the Naib-Tehsildar. Reliance on not underneath the signatures of the respondent to the effect that the appellant was present at the time of the filing of the application by his learned counsel is of no use to the respondent. The record reads as follows :

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It should have been mentioned whether or not Muhammad Younus who filed the application was present and not the sails. Somebody while trying to be clever made an odd entry that Mst. Batool Begum was present and accordingly the document should be filed with the record as if it had been filed by Mst. Batool Begum. It was forgotten that in fact it had been filed by Muhammad Younus who was not the saila. Such an entry cannot at all be relied upon. The learned District Judge and the High Court failed to notice this obvious defect in the material relied upon by the respondent side. The record having accordingly been mis read, we allow this appeal, set aside the impugned judgments and decrees and remand the case to the learned trial Judge for fresh trial of the suit with due opportunity of hearing to both the parties. There shall be no order as to costs.

M. Z. M Appeal allowed.

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