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First Appeal from Original Order No. 2 of 1983, decided on 10th February, 1986.

‑ O. IX, r. 6 & O. XVII, r. 2‑Limitation Act (IX of 1908), Arts. 164 & 181‑Ex parte decree ‑Setting aside of ‑‑Limitation for‑Ex parte decrees other than those passed under O. 1X, r. 6 (1) (a) Civil Procedure Code, 1908, held, would be governed by Art. 181, Limitation Act, 1908‑Ex parse decrees passed under O. IX, r. 6 (1) (a), Civil Procedure Code, 1908, however, would be governed under Art. 164, Limitation Act, 1908 for purposes of limitation.

PLD1981 SC21fol.

P L D 1961 Kar. 656 ; Syed Razi Haidar and another v. Wasi Ali P L D 1985 Kar. 300 ; P L D 1962 Dacca 60 ; P L D 1980 Lah. 181 and P L D 1981 S C 21 ref.

‑ Ss. 96 & 115‑Appeal/revision‑ Filing of‑Effect on pending suit‑Filing of revision/appeal in which proceedings' in subordinate Courts were not stayed but only record was summoned, trial Court, held, would not be obliged to stop proceedings even if same was informed of institution of appeal/revision, and of summoning of record.

‑‑ O. 1X, r. 13‑Ex parte decree‑Setting aside of‑Inadequacy of sufficient cause, held, would not stand in way of justice on merits- Objective of Courts would be to do full and substantial justice in matter before it after allowing due opportunity of hearing to par ties‑Person obtaining ex parse decree, having faced rigours and hardship of fruitless litigation could be compensated by award of adequate costs.‑[Costs].

‑‑ O. IX, r. 6 & O. XVII, r. 2‑Ex parte decree‑Granting of Although Court would be empowered to grant ex parte decree with‑out recording evidence, such power, held, being discretionary has to be used judicially‑Where plaintiff had closed evidence and partial evidence of defendant was also on record, trial Court would be required to give findings on issues in light of evidence on record and not to pass ex parte decree without discussing evidence.

--------O. XLIII, r.1‑Appellate jurisdiction, exercise of‑Where trial Court failed to give findings on evidence on record while passing ex parte decree, High Court, held, would, in exercise of appellate jurisdiction, set aside such order of subordinate Court‑To meet ends of justice, however, High Court imposed heavy costs on defen dants and remanded case to trial Court for further proceedings.

Malik Bashir Ahmad for Appellant.

Syed Abdus Salam Sarwar for Respondents.

Dates of hearing : 14th and 21st January, 1986.

.‑Suit No. 2971 was instituted by Muhammad Hayat Khan, etc. as against WAPDA for the award of damages in the sum of Rs. 2,42,000 along 11 % interest on account of having been washed away their embankments, boundary walls, trees and valuable 'Chahi' land due to culpable negligence on the part of WAPDA in the discharge of flood water from Tarbela Dam. In response to the service of summons, the defendant participated in the proceedings by filing a written statement which gave rise to both legal and factual issues with regard to plaintiffs closed their evidence while defendant has also produced some evidence when an adjournment has occasioned due to the filing of an application by the defendant to produce supplementary documentary evidence which appli cation was, however, disallowed vide order of the Court dated 8‑10‑1979 and the case was fixed for the defendant's evidence on 28‑10‑1979 which date was subsequently struck and substituted by 8‑11‑1979. On the said date parties' attendance in person was recorded and it was found that defendant's complete evidence was not in attendance, hence the case was adjourned for defendant's complete evidence to 6‑1‑1980. On the said date plaintiff was present while the defendant did not turn up till '0‑45 a. m. and was awaited till 2‑15 p. m. but still he did not turn up nor his evidence was in attendance, hence, the Court closed the defendant's evidence under Order XVII, rule 3, C. P. C. and proceeded against him ex parte in accord ance with Order XVII, rule 2 read with Order IX of the Code of Civil Procedure and passed an ex parte decree as prayed for with costs in favour of the plaintiffs against the defendant.

2. Against the earlier order of the trial Court dated 8‑10‑1979 vide the defendant's application for permission to file supplementary documentary evidence was disallowed, a revision petition was filed by the defendant in the Court of Additional District Judge, Haripur which was admitted for haring on 2‑1‑1980 and the Court ordered the issue of notice to plaintiff‑respondents and record to be summoned for 19‑1‑1980. In their reply of the revision petition filed on 28‑10‑1980 the plaintiffs intimated the Court that their suit has since been decreed ex parte and contended that the revision petition against the interim order has as such become infructuous. The learned Additional District Judge has, however, returned the petition for presen tation to the proper Court on account of the valuation of the subject matter in excess of his pecuniary jurisdiction.

3. Having learnt of the ex parte decree passed in the case through the reply of the plaintiffs filed on 28‑10‑1980 the defendant filed an applica tion under section 12(2), C.P.C. on 5‑1‑1981 challenging the validity of the impugned ex parte decree for want of jurisdiction, misrepresentation of facts and fraud. Pending the said application the defendants also applied for setting aside of the ex parte decree on 18‑12‑1982. The application under section 1,2 (2) and the second one under Order IX, rule 13, C. P. C. were dismissed by the trial Court on 23‑5‑1983 by separate orders. Defendant did not pursue a further remedy vas‑a‑vas his application under section 12 (2), C. P. C. by way of appeal or revision. He, however, filed the instant F. A. O. as against the orders of dismissal of his application tiled for the setting aside of the ex parte decree.

4. The defendant's application was dismissed by the learned trial Court under observations that he (defendant) had appeared before the Court on 8‑10‑1979 and 8‑11‑1979 in the suit but he did not bring it to the notice of the Court that the file was requisitioned by the Court of learned Addi tional District Judge, Haripur and as such he failed to show sufficient cause to the satisfaction of the Court for his absence on the date of hearing Besides, the defendant's application was also found hopelessly time‑barred as he had appeared in the proceedings on a preceding date of the date of ex parse decree before the Kurt and had thus the knowledge of the date of hearing but had still absented in the proceedings. The law laid down in P L D 1981 S C 21 providing for a period of limitation under Article 181 of the Limitation Act in alike cases was not followed due to the difference of facts involved in the case.

5. One may agree with the trial Court that the facts of the case before the Supreme Court were different from the case before him as that was a suit for damages which was duly contested when plaintiff bad applied for amendment of the plaint but the same having been refused a revision petition was filed there against in the High Court where the record was summoned and on dismissal of the revision petition the record was remitted to the trial Court which recommenced its trial and issued notices to the defendants who were not properly served and were still proceeded against ex parse and an ex parte decree was subsequently passed against them on 27‑5‑1912 where against an application for setting aside of the ex parse decree was filed on 31‑7‑1972 i. e. after the expiry of 30 days of the ex parte decree. We had, however, a thorough reading of the judgment of‑the Supreme Court, word by word, line by line and we have noticed that there was laid down a ratio that Article 164 of the Limi.ation Act was applicable when ex parte decree is passed under Order IX, rule 6 (1)(a), C. P. C. that‑on the first date of hearing the plaintiff appears and the defendant does not appear at the call of the Court and it is proved that the summons was duly served on him. Here I may advantageously refer to P L D 1961 Kar. 656 to highlight the difference between Order IX, rule 6 and Order XVII, rule 2, C. P. C. The authority lays down a rule that the' provisions of rule 6 apply in proceeding against the defendant in case of his absence, only to the date fixed in the summons for hearing of the suit and no to an adjourned date of hearing to which Order XVII, rule 2 is applicable. Coming back to the Supreme Court authority, it has stated that it would be logical to assume that Article 164 relates to the ex parte decree passed under Order IX, rule 6 (1) (a) on the first hearing and not to an ex parte decree passed on, the adjourned hearing under Order XVII, rule 2, C. P. C.

It was held that the word summons' was not only the key to the interpre tation of third column but was to govern the entire Article 164 and whenever it could be a case of non‑appearance of the defendants at the first bearing and he has to apply for setting aside of the ex parte decree due to non‑service of summons or any other sufficient cause, Article 164 of the Limitation Act would apply and the limitation would commence in case of non‑service of summons from the date of the knowledge of the decree or otherwise from the date of the decree. The Supreme Court authority clearly lays down that cases other than those of first hearing would not be governed by Article 164 and necessarily such applications would be governed by residuary Article 18 Whereunder the period of limitation is three years from the accrual of the right to apply. It was also observed that this period of limitation would be, no doubt, more than necessary in some cases but it is for the legislature to do the exercise of its rationalization and that the Courts would go by the law enacted in the statute. The Supreme Court authority has thus unequivocally laid down a rule that Article 164 of the Limitation Act would only govern the application for setting. aside of the ex parte decree when the defendant had absented at the first hearing of the suit in response to the summons and his case is that summons was not duly served on him or he was prevented by any sufficient cause from appearing when the suit was called on for hearing and that in all other cases residuary Article 181"‑kill apply like when an ex parte decree has been passed against the defendant on an adjourned date of hearing, as for example that the deft, ."Ant fails to appear on an adjourned date of bearing and the Court proceeds to dispose of the suit in one of the modes provided under Order IX and passes an ex parte decree against him. A Division Bench of the Sind High Court has also followed the law laid down in P L D 1981. S C 21 in the above view in case of Syed Razi Haider and another v. Wasi Ali (P L D 1985 Kar. 300). It was held that an ex parse decree having been passed under the provisions of rule 2 of Order XVII, C. P. C. would be governed by Article 181 of the Limitation Act in case of an application for setting aside of the said decree and that Article 164 of the Limitation Act shall have only application to ex parte decrees passed under the provisions of Order IX, rule 6 (1) (a), C. P. C.

6. On the other hand reliance was placed on rulings preceding the above Supreme Court authority. In P L D 1962 Dacca 60 it was held that in a suit when the defendant puts in appearance in response to the summons and subsequently absents from the proceedings and an ex parte decree is passed against him he will have to file his application within 30 days from the date of ex parte decree and that Article 164 of the Limitation Act shall apply. In P L D 1980 Lah. 181 it was held that Article 164 of the Limita tion Act, 1908 applied 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. and that residuary provisions of Article 181 cannot be made use of in regard to application for setting aside the ex parte decree. We understand that P L D 1981 S C 21 is the latest authority in time laying down a law in unequivocal terms and language which is binding on all other Courts in the country as provided under Article 189 of the Constitution and as such we will respectfully follow it. We accordingly hold that in cases of applications for setting aside of the ex parte decrees other than those passed under Order IX, rule 6(1) (a), C. P. C. the law of limitation shall be Article 181 and not Article 164. In the present case the ex parte; decree was passed under Order XVII, rule 2 read with Order IX, C. P. C. on 6‑1‑1980 at the time when the plaintiffs had since closed their evidence in the case and it was necessarily not a stage of first hearing. Application for setting aside of the ex parse decree was filed on 18‑12‑1982 within a period of 3 years from the date of the ex parte decree and ‑the application shall be therefore, accepted within time.

7. In the matter of sufficient cause the learned trial Court has blamed the defendant‑appellant for having not brought it into his notice on 8‑10‑1979 and 8‑11‑1979 respectively that be had filed a civil revision in which the record of his suit has been summoned. He has, however, been found wrong in his above observations. The defendant has filed his revision petition on 2‑1‑1980 and the learned Additional District Judge has passed orders of summoning the record on 2‑1‑1580, as such in. the circumstances the defendant was not supposed to bring it into the notice of the trial Court on 8‑10‑1979 and 8‑11‑1979 that his file has been requisitioned by the Court of learned Additional District Judge, Haripur. For non‑attendance of the defendant in the suit on b‑1‑1980 we would refer to the filing of the revision petition by him in the Court of Additional District Judge against an interim order in which the learned Additional District Judge ordered on 2‑1‑1980 for the summoning of the trial Court's file. There is an affidavit of the counsel for the defendants that he did not attend the proceedings in the trial Court on 6‑1‑1980 under a bona fide belief that the trial Court shall not have the file before him to proceed in the case as the same has since been requisitioned by the Court of Revision. We must point out here that by filing a revision or appeal in which the proceedings in the subordinate Court are not stayed and only the record is summoned the same would not oblige the subordinate Court to lay his hands off the file even if it is informed of the institution of appeal/revision and orders of the summoning of the file. The circumstance might have, however, furnished a cause to the defendant's counsel to absent from the proceedings on the date of hearing in the trial Court. The inadequacy of sufficient cause should not stand in the way of justice on merits. It should not culminate into the end loss to allow the dismissal of suit in default or ex parte decree intact for the end objective of the Courts is to do full and substantial justice ink the cause after allowing due opportunity of bearing to the parties. The adversary who has obtained an ex parte decree must have faced the rigour and hardship of fruitless litigation but for that he can be compensated by award of adequate costs.

8. It is also pointed out that although the legislature has vested power in the Court to grant an ex parte decree without recording evidence but the power is discretionary to be used judicially and there are cases which cannot at all be adjudicated upon without recording of evidence and the case in hand for the award of damages for the loss caused to the plaintiffs on account of the culpable negligence on the part of the defendant shall necessitate cogent evidence to ascertain the actual loss suffered by the plaintiffs and the culpability of the negligence, if any, of the defendant. In the case plaintiffs had since closed their evidence and a partial evidence of the defendant was also recorded, the Court should have given its finding on the issues in the light of the evidence on record and should have no opted for an easier course, without discussing the evidence, to pass an ex parte decree as prayed for with costs.

9. In view of the aforegoing discussion, We shall accept the F.A.O. set aside the judgment and order of the Court dated 23-5-1983 and the ex parte decree dated 6-1-1980 and remand the case to the trial court for Rs. 20,000 on the defendant/appellant to be deposited within two month in the Court of Senior Civil Judge, Abbottabad and for default on his part the appeal shall stand dismissed with costs and the impugned ex pare decree shall be then duly operative.

A. A. Appeal allowed.

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