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Revision Application No. 178 of 1986, decided on 7th September, 1986.
--S. 151, O. VIII, R. 10 & O. IX, R. 13--Ex parte decree, setting aside of--Where due to failure of defendant to file written statement suit was proceeded ex parte and ex parte decree was passed in favour of plaintiff such ex parte decree being appealable, held, could not be set aside by Trial Court either under O. IX, R. 13. C.P.C. or under section 151 thereof.
1973 S C. M It 103 and P L D 1975 SC 678ref.
Rasheedi for Petitioner.
The respondent filed this suit against the appellant. After service of summons the appellant appeared in the Court but failed to file his written statement with result that the case was ordered to proceed ex parte. Thereafter, the respondent filed an application under Order VIII, Rule 10, C.P.C. praying for decree in the suit straightaway. This application was not allowed by the learned Civil Judge, however, the suit was decreed ex parte on 21-7-1983. Thereafter, on 5-12-1985 the applicant filed an application under Order IX, Rule 13, read with section 151, C.P.C. for setting aside the ex parte decree alongwith application under section 5 of the Limitation Act but the delay was not condoned and the application for setting aside the ex parte decree was dismissed; as time-barred. It may be pointed out that Article 164 of the limitation Act prescribed a period of 30 days for filing such application from the date of decree or knowledge in respect of the same, as the case may be. Thereafter, the applicant filed an appeal which was decided by the learned Third Additional District Judge (West) Karachi and vide order, dated 20-4-1984 the appeal was dismissed.
The only point urged by Mr. Rasheedi learned counsel for the applicant is that on the day when judgment was passed the case was not fixed for hearing of the suit, only for pronouncement of order on application filed by respondent under Order VIII., Rule 10, C.P.C. Reliance has been placed on 1973 5 C M R 103, P L D 1975 SC 678 and PLD 1978 SC 89. The contention of Mr. Rashidi is that Article 181 of the Limitation Act is applicable and not Article 164.
According to O. IX, R. 6, C.P.C. where the plaintiff appears and the defendant does not appear, when the suit is called on for hearing, then- if it is proved that the' summons was duly served, the Court may proceed ex parte. According to Rule 7, where the Court has adjourned the hearing ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit if he had appeared on the day fixed for his appearance. Rule 13 then says that where a decree is passed ex parte, the defendant may apply for its being set aside and if he satisfies the Court that the summons were duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree.
These appear to be the provisions according to which the Court can proceed ex parte in the case against the defendant. However, if the defendant fails to file written statement within the time fixed by the Court, then according to Order VIII, Rule 10, C.P.C. the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
Therefore, in the instant case although the learned Civil Judge ordered that the case would proceed ex parte, but the learned Judge, in fact, proceeded under Order VII. Rule 10. C.P.C. by decreeing the suit in favour of the plaintiff, although surprisingly the plaintiff's application under Order VIII, Rules 1 and 10, C.P.C. was rejected. Such decree is appealable and could not be set aside by the learned Civil Judge either under Order IX, Rule 13 or even under section 151, C.P.C. Therefore, the applicant, it appears, has been throughout pursuing wrong remedies in the case. In any case the argument that the suit was decreed on a day which was not fixed for hearing of the case, is misconceived, whatever may be the meaning of the term "hearing". This revision is, therefore, dismissed in limine.
H . B . T ./ M-26/K Revision dismissed.
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