2007 PLP 1956 (YLR)

TALAAT QAYUM QURESHI, J.

The predecessor of respondents, namely, Tilla Muhammad filed a suit against petitioner and three others for recovery of Rs.2,90,000 with profit. The petitioner was proceeded against ex parte vide order dated 18-1-2001, where after evidence was recorded and an ex parte decree was passed on 24-5-2004.

2. The petitioner filed an application for setting aside ex parte decree on 26-5-2005. The same was dismissed vide order dated 6-1-2006. Appeal there against was also dismissed vide judgment and decree dated 18-10-2006. Being not contended with the judgment and decrees of the Courts below the petitioner has filed revision petition in hand.

3. Mr. laved Ali, Advocate, learned counsel representing the petitioner argued that summons were not issued by the learned Court below in accordance with provisions of Order V, C.P.C. and directly the learned trial Court directed that the defendants of the suit be served through registered AD. But they could not be served through the said mode, hence the predecessor of respondents/plaintiffs filed an application for service of the petitioner and his co-defendant through publication in the newspaper. Ultimately after the publication, an ex parte decree, as mentioned above was made. He relied upon 1985 SCMR 1228 and 1989 CLC 2183.

4. It was also argued that no evidence was recorded on the application for setting aside ex parte decree and the petitioner was unheard.

5. It was also argued -that no copy of the newspaper containing the publication of the notice was sent to the defendant, hence illegality was committed by the Courts below.

6. I have heard the learned counsel for the petitioner at length and perused the available record.

7. The suit in this case was filed by the predecessor of respondents, namely, Tilla Muhammad on 28-6-2000. The learned trial Court on receipt of the suit directed that the defendants of the suit be served through registered AD covers but the said defendants could not be served through the said mode, therefore, the plaintiff of the suit filed an application that the defendants were avoiding service, therefore, they be served through publication in the newspaper. The Courts below directed for publication in daily "Aaj" and after receipt of the said proclamation passed ex parte decree against the petitioner and his co-defendants on 24-5-2004.

8. The petitioner filed an application for setting aside the said decree after one year and 2 days on 26-5-2005 stating therein that he gained the knowledge of the decree on 20-5-2005 when he came back from Karachi but no source of his knowledge was mentioned therein. The said application was also not supported by any application for condonation of delay. The learned trial Court, after hearing the learned counsel for the parties dismissed the said application being barred by time. The learned appellate Court also dismissed the appeal on the ground that the application filed by the petitioner was hopelessly barred by time.

9. The learned trial Court while resorting to service through registered AD directly had committed no illegality because according to the amendment brought in sub-rule 2 of rule 20, Order V, C.P.C. vide Ordinance XXXIII of 1993 the Court on its satisfaction that the reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any of the reasons the summons cannot be served in the ordinary way, the Court shall order that the service of summons by:-- (a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or (b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or (c) urgent mail service or public courier services; or (b) beat of drum in the locality where the defendant resides; or (c) (c) (e) publication in press; or (f) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously."

10. Under this provision of law the Court could use all or any of the manners and modes prescribed for service simultaneously. If the Court had in its wisdom directed for the service of the defendants through registered ADs cover, it could do so under the above mentioned provision of law. The judgments produced by the learned counsel for the petitioner are not applicable to the case in. hand because both judgments were pronounced much before the amendment in sub-rule 2 of rule 20, Order V, C.P.C. was brought in 1993. After the said amendment, it was not obligatory upon either the Court or the publisher of newspaper of the notice to send copy of the proclamation/advertisement to the defendants.

11. In a very recent judgment of august Supreme Court of Pakistan in Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609 it was held:-- "In view of above discussion, we are inclined to hold that as in the instant case, the respondents were duly served, they had fully knowledge about hearing of the case in view of the legal provision noted hereinabove, as such for setting aside the order, dated 13th March, 2000, whereby their suit was dismissed in default as well as for setting aside ex parte decree dated 20th June, 2000, they ought to have approached the Court within 30 days in view of the provisions of Articles 163 and 164 of the Limitation Act and if there was delay in filing applications', they should have invoked the provisions of section 5 of the Limitation Act. Because, respondents had not approached to the Court for setting aside orders adversely operating against them, within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, learned trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside ex parte decree. Thus, the orders being proper and legal were not revisable by the learned High Court in its appellate jurisdiction." The Courts below have properly dealt with the matter and I have not been able to find out any illegality or material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Courts of competent jurisdiction. Resultantly the revision petition in hand is dismissed in limine along with the C.M. H.B.T./78/P Revision dismissed.