What does ex parte decree means? Limitation to set a side ex parte decree ? Petition to set aside exparte decree ? decree kab setaside hu sakti hai or kab nahi
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| Exparte decree |
What does ex parte decree means ?
An "ex parte decree" refers to a legal order or decision that is made by a court at the request of one party without the presence or notification of the other party involved in the case. This is typically done in urgent situations where immediate action is required and it may not be feasible to wait for a formal hearing with both parties present. However, it's important to note that ex parte decrees are usually temporary, and the affected party may have the opportunity to contest or respond to the decision in a later, more comprehensive hearing.
Limitation to set a side ex parte decree
In Pakistan, under the Civil Procedure Code (CPC), there are limitations and procedures for setting aside an ex parte decree. Here are some key points:
1. **Time Limit:** There is a specified time limit within which a party must apply to set aside an ex parte decree. Generally, the application should be made within 30 days of the decree. Time Will start from the knowledge of the parties against exparte decree.
2. **Sufficient Cause:** The party seeking to set aside the decree must provide sufficient cause for their absence during the original proceedings. This could include reasons such as non-receipt of summons, inability to attend court due to unforeseen circumstances, etc.
3. **Diligence:** The court may consider whether the party applying to set aside the decree acted diligently in pursuing their case and attending court proceedings. If it is found that the party was negligent, it might impact the decision.
4. **Merits of the Case:** The court may also consider the merits of the case and whether there is a strong case to be made by the party seeking to set aside the decree.
5. **Discretion of the Court:** Ultimately, the decision to set aside an ex parte decree is at the discretion of the court. The court will weigh the facts and circumstances of the case and decide whether to grant the application.
It's important for parties to consult with our legal professionals to understand the specific requirements and procedures involved in setting aside an ex parte decree under the CPC in Pakistan.
Application to setaside ex parte decree?
To set aside an ex parte decree, you typically need to follow these general steps:
1. **Prepare an Application:** Draft an application to set aside the ex parte decree. Include details such as the case number, names of the parties, date of the decree, and the grounds on which you are seeking to set it aside.
2. **Specify Grounds:** Clearly state the reasons or grounds for your absence during the original proceedings leading to the ex parte decree. Common grounds include non-receipt of summons, unavoidable circumstances preventing attendance, or lack of proper notice.
3. **Attach Supporting Documents:** If there are any documents supporting your grounds, such as proof of non-receipt of summons or evidence of the circumstances preventing your attendance, attach them to your application.
4. **File the Application:** Submit the application along with the supporting documents to the court that issued the ex parte decree. Ensure that you file within the specified time limit, which is usually 30 days from the date of the decree.
5. **Serve Notice:** Serve a copy of the application to the opposite party or their legal representative. This is often a requirement to ensure that all parties are aware of the application.
6. **Attend the Hearing:** After filing the application, attend the scheduled hearing. Be prepared to present your case and provide any additional information or clarification if required by the court.
7. **Court's Decision:** The court will consider your application, the grounds presented, and any responses from the opposite party. The decision to set aside the ex parte decree is at the discretion of the court.
It's crucial to consult withour legal professionals to ensure that you adhere to the specific procedural requirements and rules applicable to your case. Legal advice tailored to your situation can significantly improve your chances of success.
Petition to set aside exparte decree ?
- Petitioner ki janab se civil revision file ki Exparte decree ko setaside karwane ke liye.
- Jiss se pehle Trial court or Additional district Judge ne Application kharaj kar di thi
- Yeh ke petitioner ke khalaf dawa hoa tha declaration, possession through taqseem e jaidadd
- Petitioner us dawa main pesh hoi through her husband ju ke us ka Special attorney tha.
- Jiss ke baad Court ne preliminary decree jari kar di.
- Jiss ko petitioner ne challenge na kia
- Jiss ke baad exparte karwai Amal main laai or case ko decree kar dia gia.
- Court ne Ijrah main karwai shroo ki tu decree setaside karne ki application de di gai.
- Trial Court ,Appeal Court ke baad High Court ne revision main kharaj kar di .
- High court ne qarar dia ke agarpreliminary decree ko challenge na kia jai tu aap final decree ko challenge nahi kar sakte
Judgment Sheet
IN THE PESHAWAR HIGH COURT, PESHAWAR
(Judicial Department)
Civil Revision No.382-P/2020
“Mst. Reshma versus Mst. Shabana”
Date of hearing.
17.11.2020
Malik Muhammad Ajmal Khan, Advocate for the
petitioner.
M/S Fida Gul, Muhammad Rustam Khan & Asghar Khan,
Advocates for respondent.
*****
JUDGMENT
MUHAMMAD NAEEM ANWAR, J. This civil revision
is directed against the judgment and order dated
22.02.2020 of the learned Additional District JudgeXIII, Peshawar, by which, the appeal filed by the
petitioner against the judgment and order of the
learned Civil Judge-XIII, Peshawar dated
22.02.2019, was dismissed.
02. Facts leading to the institution of the instant
petition are that the respondent has filed a suit
seeking declaration that she is the owner in
possession of ½ share in the house bearing No.3770
measuring 2 ½ Marlas, situated at Mohallah
Naukocha No.2 Tehsil and District Peshawar on the
basis of deed No.4093, Bahi No.1 Volume 1789/252
dated 19.10.2001 with which petitioner has got no
right whatsoever, to the extent of her share. Decree
2
for recovery of possession through partition to the
extent of her own share was also sought within an
added prayer of perpetual injunction that the
petitioner be restrained from interfering in her
possession and from altering the nature of suit house
by any mean. In response to the notice issued by the
learned trial Court the petitioner / defendant
appeared and contested the suit through her written
statement on various legal and factual objections.
The parties were directed to adduce their evidence.
During the course of evidence, the petitioner /
defendant disappeared from the proceedings which
resulted into ex-parte proceedings initiated against
her. After competition of ex-parte evidence, ex-parte
preliminary decree was passed against her on
20.06.2017. Plaintiff / respondent has filed an
application for final decree on 18.07.2017, the notice
of which was issued to the petitioner, however, after
observing the legal and codal formalities of
petitioner’s service through all means i.e. service of
notice on petitioner’s husband / attorney, service
through affixation and lastly substituted service
through publication of a notice in daily Pakistan
followed by her non-appearance, she was proceeded
against ex-parte on 05.12.2017 and thereafter, ex-
3
parte proceedings were culminated into ex-parte final
decree on 20.06.2018, followed by execution
application when the petitioner has submitted an
application under Order IX Rule 13 of C.P.C, 1908
for setting aside of ex-parte decree dated
20.06.2018. The application was contested through
proper reply by the respondent / decree holder. The
petitioner’s application was dismissed by the learned
trial Court on 22.02.2019, being dissatisfied from the
findings of the learned trial Court, the petitioner filed
an appeal which too met the same fate, hence the
instant petition.
03. Learned counsel for the petitioner
contended that neither the petitioner was served
personally nor she got the knowledge of ex-parte
decree during execution proceedings, pending
against her before the executing Court then she filed
the application for setting aside of ex-parte decree
within an application for condonation of delay under
Section 5 of the Limitation Act, 1908. Next, he added
that the petitioner has got valuable rights with the
disputed house and that on the basis of principle of
natural justice audi alterim partem the petitioner
deserves to be given right of hearing. It was also
contended that application for setting aside of ex-
4
parte decree shall be dealt with under the provisions
of Article 181 of the Limitation Act, 1908, which
provides three years’ limitation for setting aside exparte decree, in the circumstances in which the
defendant joined the proceedings and later-on
disappeared. He continued that under Article 10-A of
the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has got fundamental rights of
being heard but both the learned Courts below have
not adverted to this legal aspect of the case, which
resulted into grave miscarriage of justice. In order to
fortify his submissions, he relied on 1973 SCMR 403,
PLD 1971 SC 161, 2018 YLR 779, 2006 CLC 92,
1986 CLC 1241, PLD 1974 Lahore 434, PLD 1970
Lahore 6, 1992 CLC 1362, 2004 YLR 1535, 2000
CLC 1352, 2005 YLR 2817 and 2006 YLR 108.
04. Conversely, learned counsel for decree
holder strenuously opposed the arguments advanced
by the petitioner by contending that the petitioner has
not challenged the preliminary decree therefore, final
decree could not be assailed under Section 97 of the
Code of Civil Procedure, 1908. He went on to say
that not only the petitioner was in knowledge of exparte preliminary decree but after filing of application
for final decree, the petitioner was served through
5
her attorney / husband namely Jasim Khan who has
exchanged nasty words when the clerk of local
commission informed him about commission’s
proceedings. He referred the notices issued to the
petitioner during the proceedings for final decree.
Furthermore, when the local commission proceeded
to the spot and conducted the commission
proceedings the petitioner did not opt to join the
Court proceedings, in such circumstances, the
application filed for setting aside of ex-parte decree
would be treated under Article 164 of the Limitation
Act, 1908 which provides thirty days’ limitation for
setting aside ex-parte decree, from the date of
decree. To substantiate his contentions, he relied on
2008 YLR 33, 2019 MLD 1082, 2005 SCMR 609,
2017 YLR 900, 2006 SCMR 631, 2008 SCMR 227,
2015 CLC 1290 and 2005 MLD 157.
05. Arguments heard and record perused.
06. Admittedly, undisputedly and undeniably, the
petitioner joined the proceedings and submitted her
written statement through her attorney namely Jasim
Khan who happened to be her husband. It is
significant to mention that the instant petition too was
filed by the petitioner’s special attorney and her
husband Jasim Khan. The petitioner has never
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disputed rather admitted that she was represented
through Jasim Khan before the trial Court where her
attorney has submitted written statement. Perusal of
record reveals that after joining the proceedings,
witnesses of respondent / plaintiff were cross
examined by the petitioner and he remained in
picture till 10.04.2017 when the learned trial Court
directed issuance of a notice under Order IX Rule 2
C.P.C to the petitioner as well as her counsel and the
proceedings were posted for 22.04.2017. The notice
was served upon Mr. Afroz Ahmad, Advocate, who
personally received the same whereas the notice
issued to the petitioner returned with the report of
Process Server (Waqas Ahmad) dated 13.04.2017,
on the overleaf of the notice that the petitioner denied
from the service by contending that without the
permission of her husband she could not sign any
notice and her husband / attorney has also refused
from the service. When no one turned up on behalf of
the petitioner on the date fixed, the learned trial Court
has left with no option but to continue with ex-parte
proceedings which ultimately resulted into
preliminary decree dated 20.06.2017.
07. It would not be out of context that since
20.06.2017 till today, the preliminary decree was not
7
challenged by the petitioner. When the learned
counsel for petitioner was confronted with this legal
aspect, firstly he contended that preliminary decree
was challenged through the application filed under
order IX Rule 13, however, the date of decree was
inadvertently mentioned as 20.06.2018 instead of
20.06.2017. Scanning of record reveals that in
happening of events the preliminary decree was
passed on 20.06.2017 and final decree was granted
on 20.06.2018, the application for setting aside of exparte decree was turned down by the lower court on
22.02.2019 against which the appeal was dismissed
on 22.02.2020. Moreso, the contents of application
manifested that the petitioner never intended in
seeking the set aside of preliminary ex-parte decree.
Not even an iota in this regard was ever mentioned in
the application. In such circumstances, when
preliminary decree was not challenged, provisions of
Section 97 of the Code of Civil Procedure, 1908
would come into play, which precludes the
challenging of final decree, which reads as: -
“97. Appeal from final decree where no
appeal from preliminary decree. – Where
any party aggrieved by a preliminary
decree passed after the commencement of
this Code does not appeal from such
decree, he shall be precluded from
disputing its correctness in any appeal
8
which may be preferred from the final
decree”.
08. In Conforce Limited vs. Rafique Industries
Limited (PLD 1989 SC 136), it was held by the
Hon’ble Supreme Court that “Section 97 of CPC
debars a party from questioning the correctness of
preliminary decree in an appeal preferred from final
decree. Therefore, if a party fails to challenge
preliminary decree within the prescribed period of
limitation, the party would be precluded from
challenging the same in an appeal against final
decree”. The Privy council in Ahmed Musaji Saleji vs.
Hashim Ebrahim Saleji (AIR 1915 OC 116) has held
that failure to appeal against preliminary decree
would operate as a bar to raise any objection to it in
an appeal filed against final decree. Likewise, it was
held in AIR 1963 Supreme Court 992 that a
preliminary decree passed, whether it is in a
mortgage suit or partition suit, is not a tentative
decree but must, insofar as the matters dealt with by
it are concerned, be regarded as embodying in the
final decision of the Court passing that decree.
09. As the petitioner has not challenged the
preliminary decree either through appeal or by filing
an application for setting aside it, especially when on .
9
her disappearance she was served with a notice
through her husband / special attorney under Order
IX Rule 2 C.P.C, would be precluded from raising the
objection / challenging the final decree.
10. Even otherwise, the petitioner was in
knowledge of not only of preliminary decree but also
the proceedings being conducted by the learned trial
court in the application submitted by respondent for
final decree, when the learned local commission
through his clerk has sent notice and intended that
the special attorney of petitioner be served, who
instead of receiving the notice and participating the
proceedings exchanged some nasty words and
threatened him of dire consequences, whereupon the
learned local commission informed the Court
regarding the aforesaid circumstances with the
request that some other local commission be
appointed as he would not be able to proceed with
the matter. Apart from the above, when the local
commission visited the spot, in order to determine as
to whether the decreed property is partitionable or
not and in case if it is partitionable what would be the
mode of partition. The commission proceedings were
conducted on 08.05.2018 and the learned local
commission has submitted its report on 11.05.2018,
10
where-after final decree was passed on 20.06.2018.
The petitioner opted to submit the application on
16.11.2018. The question before this Court would be
as to whether the application would be treated under
Article 164 or 181 of the Code of Civil Procedure,
1908. It is undisputed that the petitioner earlier
participated in the proceedings and thereafter
absented herself. The Hon’ble Supreme Court in
case titled “Shahid Parvez alias Shahid Hameed vs.
Muhammad Ahmad Ameen” (2006 SCMR 631) has
observed that “when the defendant joined
proceedings before the trail Court and afterwards on
his absence an exparte decree was passed.
Defendant after 4 months filed application for setting
aside exparte decree which application was
dismissed being time barred. Article 164 of Limitation
Act provides 30 days to file application for setting
aside exparte decree because petitioner / defendant
had participated in the proceedings before the trial
Court”. The said principle was followed by the
Hon’ble Supreme Court in case titled “Secretary
Education Department, Government of NWFP
Peshawar and others vs. Asfandiar Khan” as
reported in (2008 SCMR 287). When the petitioner
was fully aware regarding the pending proceedings
11
before the trial Court and neither he opted to join the
proceedings nor submitted the application within the
period of 30 days as provided for setting aside
exparte decree then filing of application after 5
months of exparte decree would be hit by limitation,
which was rightly dismissed by the learned Courts
below. It is significant to mention that with the
application for setting aside exparte decree petitioner
has submitted an application under Section 5 of the
Limitation Act by mentioning therein that she being
pardanasheen lady had got no knowledge of exparte
judgment dated 20.06.2018 thus the delay in filing of
application was not intentional but due to
unavoidable reason, the aforesaid contentions of
petitioner is without any plausible explanation
because on each and every occasion not only the
petitioner herself but her husband too was informed
by the learned Trial Court but neither she nor her
husband appeared before the Court and deliberately
avoided participating in proceedings. As such, the
said application was also rightly discarded by the
learned lower Courts.
11. Apart from the above, Malik Muhammad
Ajmal Khan, Advocate, learned counsel representing
the petitioner also contended that there seems a
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collusion between special attorney for petitioner
namely Jasim Khan and the husband of decree
holder, if it is true then the learned counsel himself
has got no locus-standi being engaged as a counsel
by the Jasim Khan / husband of petitioner. Had there
been any collusion between Jasim Khan and
husband of decree holder, the said factum of
connivance or conspiracy would also be attributed to
the learned counsel for the petitioner.
12. For the reasons stated above, the instant
petition stands dismissed being without substance.
Announced:
17.11.2020.
J U D G E
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