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(a) Civil Procedure Code (V of 1908)--

---S. 151 & 0. XLV, R. 21--Limitation Act (IX of 1908), Art. 169- Application for re-hearing of appeal--Defendants applying on 23-6-1983 for setting aside ex pane proceeding taken against them by Trial Court in pursuance of remand order passed by High Court--Defendants, held, would have full knowledge on said date about order passed by High Court in their absence--Limitation period of thirty days would start running from date defendant made application for setting aside ex parte order in Trial Court in consequence of order of remand by High Court--Application for re-hearing of appeal on 21-9-1983 would be hopelessly barred by time.

(b) Limitation Act (IX of 1908)--

---S. 5--Civil Procedure Code (V of 1908), 0. XLI, R.21 Condonation of delay, application for--Where defendants had knowledge of order of Court which was sought to be challenged on 23-6-1969, making application beyond period of thirty days from such date and seeking condonation thereof, held, would amount to indolence and delay being inordinate, same, held, could not be condoned.

S.M. Anwar Shah for Appellant. Imtiaz Ahmad for Respondents. Date of hearing: 29th September, 1985 ,

RIAZ AHMAD. J.--This Civil Miscellaneous Application has been moved under Order XLI, Rule 21 read with section 151, C.P.C. by the Petitioners/ respondents in R.F.A. No.579/BWP, which was heard and decided ex parte by this Court on 5-4-1982. The petitioner/ respondents have prayed the re-hearing of the aforesaid appeal, because according to the Petitioners /respondents the notices were not served upon them, and the process-server had made bogus report showing, that the notices issued by this Court had been served upon the petitioners/ respondents.

2. The brief facts necessary for the determination of this applications are, that on 21-6-1978 Rasul Bakhsh respondent-plaintiff instituted a suit for possession through pre-emption of the suit land which was alienated by Allah Yar vendor through a registered sale-deed, dated 24-9-1977 in favour of the petitioners-defendants. The learned Civil Judge seized of the case declined to accept the application of the plaintiff-respondents for furnishing security for Zar-e-Panjum instead of cash through his order, dated 21-6-1978, and a direction was issued to the respondent-plaintiff to deposit Zar-e-Panjum amounting to Rs.31,000 before 14-10-1978. The respondents-plaintiff sought extension of time for the deposit of Zar-e-Panjum on the ground, that his cotton crop had been damaged, and thus he had not been able to raise necessary fund to make a deposit of Zar-e-Punjum. This application seeking extension in time was also dismissed by the learned Civil Judge on 30th of October, 1978. Ultimately, the suit brought by the respondent plaintiff was dismissed under section 22(4) of the Punjab Pre-emption Act.

3. The respondent-plaintiff assailed the rejection of the plaint and the dismissal of the aforesaid suit by way of filing R.F.A. No. 5 of 1979/BWP in this Court. The notices intimating 5th of April, 1981, as date of hearing of the said appeal were despatched to the petitioners defendants on 22-3-1981, which were handed over to Nazeer Ahmed, process-server at Liaquatpur. According to the report of the process-server, Rab Nawaz and Gharib Nawaz, petitioners were served in person. The report further reveals, that on behalf of Shah Nawaz, Rab Nawaz accepted the notice, and similarly on behalf of Ameer Nawaz, Gharib Nawaz accepted the service. The service was effected in presence of the witnesses, as is evident from the endorsement by the process-server on the notice.

4. On 5th of April, 1982, since the petitioners did not appear, therefore, the appeal was heard in their absence, and it was allowed, and the case was remanded to the learned Civil Judge, and this Court allowed the respondent-plaintiff to deposit Zar-e-Punjum within two months of the passing of the order by this Court.

5. In support of this application for re-hearing of the appeal, the learned counsel for the petitioners-defendants has attacked the mode of service. The learned counsel contended, that no Registered A.D. notice was sent to the petitioners-defendants, and the report of the process-server was bogus. It was also contended that, Rab Nawaz and Gharib Nawaz had no authority to accept service on behalf of Shah Nawaz and Ameer Nawaz. Personal service upon Rab Nawaz and Gharib Nawaz was vehemently denied. It was further ststed at the bar, that the petitioners-plaintiffs for the first time came to know of the ex parte order delivered by this Court in R.F.A. No.5 of 1979/BWP on 3rd of September, 1983. The learned counsel further contended, that he applied to obtain certified copies of the orders which were supplied to him on 16th of September, 1983, and he had filed the present application on 21-9-1983, and since, the limitation period prescribed under Article 169 of the Limitation Act is thirty days from the knowledge, therefore, the present application is in time.

6. On the other hand, Mr. Imtiaz Ahmed, Advocate, who appeared for the respondent-plaintiff controverted all the contentions raised on behalf of the petitioners-defendants. Mr. Imtiaz Ahmed contended, that after remand of the case by this Court the petitioners-defendants were again proceeded ex parte on 23-2-1983, and on 23rd of June, 1983, the petitioners-defendants moved an application before the trial Court for setting aside the ex parte proceedings taken against them.

7. We have carefully considered the contentions raised on behalf o the parties, and have also perused the record. Without going into further detail, we are of the view, that the present application under Order XL1, Rule 21 read with section 151, C.P.C, is hopelessly barred by time. The petitioners-defendants applied on 23-6-1983 for setting aside ex parte proceedings taken against them by the trial Court, ii pursuance of the remand order passed by this Court in R.F.A. No.5 of 1979/BWP., therefore, in our view, the petitioners-defendants ha( full knowledge on the said date, about the order passed by this Court in R.F.A. No. 5 of 1979/BWP, decided in their absence. Thus, in our view, the limitation period of thirty days prescribed under Article 169; started running forthwith from the said date, which ended on 23rd of July, 1983. In this view of the matter, we are of the view, that the contention of the petitioners that they for the first time came to know of the ex parte order passed by this Court on 3rd of September, 1983 is devoid of truth. This application is thus hopelessly barred by time, and there being no substance in it, we hereby dismiss the same.

8: Civil Miscellaneous No. 730-83/BWP, has been filed for the condonation, of delay. As already submitted above, the petitioners had come to know of the order of this Court on 23-6-1983, and thus being indolent and the delay being inordinate cannot be condoned and the Civil Miscellaneous is also herby dismissed.

A. A. Application dismissed.

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