1989 PLP 943 (MLD)

‑‑‑O.IX, R.13‑‑Ex parte decree‑‑Setting aside of‑‑Address of defendant admittedly was wrongly shown in plaint and summons had not been taken by bailiff to house where defendant presently was residing‑‑Service of summons on defendant being not satisfactory and defendant having not come to know about publication in newspaper, ex parte decree against defendant was set aside holding that period of limitation would start when defendant would get knowledge of filing of suit. Muhammad Anwar Tariq and Karar Hussain for Applicant. Niazi A. Khaliq for Defendant No.1. Jaman Muhammad Dawood for Applicant (in J.M. No. 47 of 1986). C.MA.No. 284/1987 is an application under Order 9, Rule 13, C.P.C. filed by defendant No.1 while CMA No.283/1987 is an application under section 5 of the Limitation Act filed by defendant No.1. J.M.47/1986 is an application under section 12(2) filed by Mst. Abida Suit No.474/1983 was filed by the plaintiff Afroz Ali for declaration and possession. Summons were issued to defendant No.1 Mst. Rabia Bai and defendants Nos.2 and 3 Din Muhammad and Haji Manzoor but they could not be served by the bailiff. The report of bailiff repeatedly showed that the defendant No.1 was the residing in the bungalow No.32/8, Block VII‑8, Dawoodi Bohra Cooperative Housing Society, Karachi. An application under Order 5, Rule 20, C.P.C. was made alleging that the defendants were deliberately avoiding to receive the summons. Hence they were served by substituted service by publication in Daily Mashriq dated 30‑10‑1983. It is mainly contended by the defendant No.1 that her old address was wrongly shown in the plaint of her new and correct addresss and, therefore, she could not become aware of the filing of the suit. She has also contended that she did not come to know of the publication made in Daily Mashriq. Hence she could not attend the Court. The plaintiff has filed his affidavit. He has supported it with certain documents including affidavit of defendant No.1 showing that she was residing in the house referred to above. On the perusal of these documents it appears that all of them are of dates prior to filing of the suit and also prior to date of selling the house of Mst. Abida. In J.M. 47/1986 it is claimed that defendant No.1 had sold this house to the applicant Mst. Abida on 23‑2‑1984 and had delivered the possession to her. Hence it is quite clear that the service on defendant No.1 was not satisfactory. The summons had not been taken by the A bailiff to the house wherein she was residing. It also cannot be ruled out that she would not have come to know of the publication in Daily Mashriq. Under the circumstances I allow CMA No.284/1987 and set aside the ex parte decree passed by this Court on 18‑11‑1985. CMA No.283/1987 is not necessary because the period of limitation starts from the day when the defendant No.1 gets knowledge of the filing of the suit. In this view of the matter J.M. No.47/1986 also stands disposed of and in the particular circumstances of this case it is ordered that Mst. Abida be also joined as a defendant. The office is directed to make such amendment in the title of the plaint with red ink. The defendants should file their written statements within three weeks. H.B.T./A‑479/K Order accordingly.