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Revision Application No. 158 of 1986, decided on 24th November, 1986.

‑‑‑O. III, R. 5 & O.IX, R. 13‑‑Limitation Act (IX of 1908), Art. 164‑‑Ex parte decree, setting aside of‑‑Limitation‑‑Starting point of‑ Where defendant was represented by counsel, notice, held, could be issued to his counsel in case defendant could not be served himself‑ Defendant having not been duly served and notice to his counsel also not having been issued by Court, limitation for setting aside ex parte decree would run against defendant from his knowledge of decree.

‑‑‑S. 115, O.IX, R. 13‑‑Revisional jurisdiction, exercise of‑‑Period of limitation for setting aside ex parte decree, computation of‑‑Both Courts below failed to consider that where defendant was not duly served and ex parte decree was passed against him, time against such defendant would run from date of knowledge of decree‑‑Concurrent orders of Courts below dismissing application of defendant for setting aside ex parte decree as timebarred were set aside by High Court in exercise of revisional jurisdiction.

M. Abdul Majeed Khan for Applicant.

Syed Shakri and Sh. A. Majeed for Respondent.

Date of hearing: 24th November, 1986.

The respondent filed a civil suit against the applicant for permanent injunction from operating the electric washing machine in front of respondent's house. Written statement was filed by the applicant and he denied the allegations. The plaint was rejected but the appeal of the respondent was allowed and case was remanded to the Civil Judge. On 22‑4‑1984 both the parties and their Advocates appeared in the Court and it was adjourned to 9‑7‑1984. The Nary, dated 9‑7‑1984 shows that the case was transferred by the order of the District Judge but when the case was taken up by the transferee Judge the plaintiff and his counsel were not present on 27‑9‑1984 but they appeared on 18‑10‑1984 and the notice sent to the applicant returned un-served. Notice was repeated for the next date of hear' " and it remained un-served. The diary, dated 10‑11‑1984 shows that the Court notice issued for the service upon defendant was returned with unsatisfactory report, therefore, the fresh notice was ordered but on the same day an application under Order V, rule 20, C.P. C. was filed which was allowed. The diary, dated 18‑12‑1984 shows that the service was held good as the notice had been pasted and the publication had been made. According to the applicant on 8‑5‑1985 the applicant received a registered notice sent by the Court of Civil Judge that he should appear in Court on 9‑5‑1985. The applicant found that ex parte decree and judgment had been passed on 17‑2‑1985 whereafter the applicant moved an application for setting aside the ex parte order which was dismissed on the ground that it was filed after the expiry of period of limitation. The applicant preferred an appeal which was dismissed.

2. The learned counsel for the applicant has contended that the respondent lives in House No. G/15 next door to the applicant in the same building and that both carry on Dhobi work in the Dhobi Ghat. There were no cogent reasons whatsoever for not getting notices served on applicant in the ordinary way and for the first time on 9‑5‑1985 the applicant came to know that ex parte decree had been obtained by the respondent.

The two Courts below came to the conclusion that the application was barred by time but they have failed to consider that the time will run from the date of knowledge and the applicant came to know about the ex parte judgment and decree on 9‑5‑1986. The notices issued were not duly served. The contention of the applicant that he lives next door to the house of the respondent has not been disputed. The learned Civil Judge on 10‑11‑1984 in the diary has written that the notice has been received with unsatisfactory report. It, therefore, cannot be said that the applicant was avoiding service. Additionally the applicant was represented by the counsel but the Court did not issue any notice to the counsel for the applicant. If the applicant could not be served notice could be issued to the counsel for the applicant. This has not been done in the instant case. I am, therefore, of the view that the application for setting aside the ex parte decree made by the applicant was within time as the time would run against him from the date of knowledge. The Revision Application is accepted. The judgments of the two Courts below are set aside and the case is remanded to the trial Court for deciding the case on merits. As the respondent has not contested the revision application, there would be no order as to costs.

H. B. T. /R‑2/ K Revision accepted.

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