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Rent Appeal No. 91 of 1985, decided on 10th June, 1987.

---O.IX, R.13--Limitation Act (IX of 1908), Art. 164--Application for setting aside ex carte decree--Limitation--When due service of summons proved on defendant, time would run from date of decree, otherwise it would run from date when defendant had knowledge about decree- Where defendant made appearance in response to a summons issued by Court but subsequently failed to appear, application for setting aside ex parte decree would be filed within thirty days from date of decree and not from date of knowledge of such decree--Knowledge, held, would not merely mean that a decree had been passed by some Court against defendant in some suit but meant that a particular decree had been passed against him by a particular Court in a particular suit and in favour of a particular party.

---O.IX, R.13--Limitation Act (IX of 1908), Art. 164--Ex parte decree, application for setting aside--Limitation--Documentary evidence produced by petitioner plaintiff failing to establish that respondent -defendant had sufficient knowledge in respect of decree prior to 12-4-1982 i.e. date on which he claimed to have acquired knowledge about passing of an ex parte decree against him--Application for setting aside ex parte decree filed by defendant on 20-4-1982, held, would not be time-barred--Order of appellate Court below to the effect that defendant's application was not time-barred was, therefore, not open to any exception.

Zahid Marghoob for Applicant.

Abdul Lateef Channa for Respondent.

Dates of hearing: 3rd and 4th May, 1987.

Applicant Sultan Aziz had filed a suit for declaration and permanent injunction in respect of property bearing No. K-139, Haji Fareed Goth, Golimar No. 2, Karachi in the Court of the learned XIXth Civil Judge, Karachi. The respondent failed to appear on 30-3-1981 which was a date fixed by the Court for hearing of the case after the learned Civil Judge had ordered that summons be served on the respondent by substituted service and by publication of the same in the Newspaper. Consequently, the learned Civil Judge proceeded ex parte and passed judgment after taking ex parte proof on 23-12-1981 and a decree was framed accordingly on 2-2-1982.

On 20-4-1982, respondent Murad Ali filed application under Order IX, Rule 13, C.P.C. seeking to get the ex parte decree set aside on the ground that no summons hind ever been served on him either at his' residence or at his Ration shop and the ex parte decree passed against him had been managed by the applicant with ulterior motive and it was on 12-4-1982 that the respondent for the first time came to know about the ex parte decree after a certified copy of the decree had been filed by the applicant in the Court of A.C.M. Gulbahar, Karachi where some other litigation had been pending between the parties. This application was rejected by the learned Civil Judge.

The respondent then filed appeal before the learned Vth Additional District Judge, Karachi which was allowed and the order of the learned Civil Judge was set aside and the case remanded to the learned Civil Judge for fresh disposal. It is this judgment which has now been impugned in the revision application.

I have heard Mr. Zahid Marghoob, learned counsel for the applicant and Mr. Abdul Latif Channa learned counsel for the respondent.

The only contention raised by Mr. Zahid Marghoob before this Court has been that the application filed by the respondent under Order IX, Rule 13, C.P.C. was time-barred and therefore, the learned appellate Court could not have decided the appeal in favour of the respondent.

I find this argument to be completely without force. It is clearly evident from the appellate judgment that the learned Civil Judge first issued summons to the respondent for 27-5-1981 which could not be served on him and was returned unserved by the Bailiff of the Court. Another summons issued for 20-7-1981 was also admittedly, nor served on the respondent. Thereafter, it appears, the applicant filed an application under Order V, Rule 20, C. P. C. for service of summons through publication which was forthwith allowed on 5-11-1981 by the learned Civil Judge as is evident from the following order passed by her:

"Defendant be served by way of Publication as well as pasting on the premises of the outer door of defendant and Regd. A.D. also."

This Order which evidently appears to have been mechanically passed by the learned Civil Judge clearly appears to be erroneous since no proper attempt had been made to serve summons on the respondent in the manner as provided by Order V, Rule 10 C.P.C. Even compliance with Rule 10-A of Order V, C.P.C. simultaneously requiring sending of summons by registered post admittedly, was not made by the learned Civil Judge. Under such circumstances, when the respondent appeared and pleaded before the Court that the summons had not been served on him and he had no previous knowledge of the decree passed by the learned Civil Court, all that was required to be done was to set aside the ex parte decree and dispose of the suit on merits. However, Mr. Zahid Marghoob, learned counsel for the applicant has argued that the applicant had succeeded in establishing before the learned trial Court and the appellate Court that the respondent had knowledge in respect of the ex parte decree much prior to 12-4-1982 as claimed by him and therefore, his application under Order IX, Rule 13, C.P.C. before the learned trial Court was barred by time and consequently the learned appellate Court was in error while setting aside the ex parte decree and allowing the respondent to defend the suit on merits.

It may be pointed out that Article 164 of the Limitation Act provides for a period of thirty days for a defendant to make an application for an order to set aside an ex parte decree and such period is to be reckoned from the date of the decree or where the summons was not duly served, when the applicant had knowledge of the decree. It is not disputed that an application under Order IX. Rule 13, C.P.C. is to be governed by Article 164 of the Limitation Act. The correct interpretation of Article 164 would be, that when there has been due service of summons on the defendant, time would run from the date of the decree otherwise it would run from the date when the defendant first had knowledge about the decree. Consequently in a case where the defendant makes appearance in response to a summons issued by the Court, but subsequently fails to appear the application for setting aside ex parte decree has to be filed within thirty days from the date of the decree and not from the date of the knowledge of such decree. However, where the summons was not duly served on the defendant, an application for setting aside an ex parte decree would then be governed by the second part of Article 164 of the Limitation Act and the period of limitation would run from the date of knowledge in respect of the ex parte decree. It has not been denied by Mr. Zahid Marghoob that this case is covered by the second part of Article 164 but what the learned counsel has disputed is, that the date of knowledge acquired by the respondent in respect of the decree in the suit was not 12-4-1982 as claimed by him but the same was much prior to that as the applicant had himself informed the respondent about the decree in the suit. However, I do not find much force in this argument because when the learned counsel was asked to point out a single instance to support his contention he only referred to the counter-affidavit of the respondent, dated 25-5-1982 which fails to support his contention. Knowledge does no merely mean that a decree has been passed by some Court against the defendant in some suit but the same means that a particular decree has been passed against him by a particular Court in a parti cular suit and in favour of a particular party. Such knowledge according to the respondent was acquired by him for the first time on 12-4-1982. The affidavit relied upon by Mr. Zahid Marghoob for the purpose of rebuttal or the other documents referred to therein, copies of which have been filed by the applicant along with this revision, however, fail to establish that the respondent had sufficient knowledge in respect of the decree prior to 12-4-1982. Consequently, the learned appellate Court had to accept the plea taken by the respondent in his application under Order IX, Rule 13, C.P.C. I that is accepted then the application filed by the respondent on 20-4-1982 was not time-barred and the appeal filed by the respondent was rightly accepted by the learned appellate Court. Since Mr. Zahid Marghoob has failed to convince me with his argument I do not find that the Judgment of the learned appellate Court is open to exception.

For the aforesaid reasons, I did not find force in this revision) and the same was therefore dismissed by a short order, dated 4-5-1987. The parties are left to bear their own costs.

M. Y. H./S-130/K Petition dismissed.

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