1983CLC 1317 (PLP)

Moulvi Ali Akbar v. Khatoon Ni.vsa alias Khatoon Bibi 1974 S C M R 331 rel. Afzal Begum and others v. Y. M. C. A. P L D 1979 S C 18 and Rehman Weaving Industries v. I. D. B. P. P L D 1981 S C 21 ref. Ibrahim Pishuri for Plaintiff. Khalid M. Ishaque for Defendants. Date of bearing : 3rd February, 1983. These are three separate applications filed under Order IX, rule 13, C. P. C. for setting aside ex parte decree dated 15th November, 1977 passed in the above suit, (i) C. M. A. No. 437/78 has been moved by defendants Nos‑ 2 and 3, (ii) C. M. A. No. 997/78 has been moved by defendants Nos. 4 and 5 and (iii) C. M. A. No. 436/78 has been filed by defendant No.

6. Various grounds have been raised in support of these applications, which however I do not find it necessary to deal with, as I am satisfied otherwise that no due service of the summons was made upon defendants Nos. 2 to

6. The admitted fact on record is that the defendants Nos. 2 to 6 are directors of the defendant No. 1 (Company) for the winding up of which a petition was presented in the Court on 17th September, 1974. The defen dants Nos. 2 to 6 admittedly were not doing any business at the addresses given in the plaint. The residential addresses of these defendants Nos. 2 to 6 were known or could have been ascertained by the plaintiffs by exercising due diligence which fact is also supported by the fact that notice of demand after the passing of decree was sent by the plaintiffs on 2nd January, 1978to Khan Bahadur Habibur Rehman, the defendant No. 2, at his residential address. This notice was received at the said address on 19th December, 1977. According to the learned Advocate for the plaintiff this address was ascertained by the plaintiffs after making inquiries in the office of the Registrar of the Joint Stock Companies wherein 'the defendant No. 1 Com pany was registered under the Companies Act and in Form No. XII the residential addresses of the directors were given. It appears that in spite of the fact that the addresses given, in the plaint were not the places of business of the defendants Nos. 2 to 6 futile attempts were made to serve them at the said addresses. It is also borne out from the record and the fact has remained unrebutted, that Khan Bahadur Habibur Rehman left for U. S. A. and was out of the country between 13th January, 1975 to 17th April, 1975 and from 19th November, 1975 to 16th February, 1976. Some of the other defendants were also out of station when the summons were issued. In the circumstances stated above I am of opinion that principles laid down in the case of Moulvi Ali Akbar v. Khatoon Nissa alias Khatoon Bibi (1974.5 C M R 331) would be applicable and ex parte decree is liable to be set aside on the ground that the same was obtained by suppressing correct addresses and by device of giving false addresses of the defendants Nos. 2 to

6. Lastly it may be observed that the learned counsel for the plaintiff referred to the case reported as Afzal Begum and others v. Y. M. C. A. (P L D 1979 S C 18) in support of his submission‑ that substitute service by publication in the newspaper cannot always be deemed to be due service within the meaning of ' Articles 164 and 169 of the Limitation Act, and rule 13 of Order IX, C. P. C. Reference was also made to the case of Rehman Weaving Industries v. I. D. B. P. (P L D 1981 S C 21) in support of the submission that the period prescribed by Article 164 would not be applicable to the present case as the decree was passed on a day other than that fixed in the summons. For the reasons discussed above I am satisfied that the defendants were not duly served, that the decree was obtained by giving false addresses of business of the defendants No. 2 to 6 and that sufficient cause has been made out for setting aside the ex parte decree. Accordingly I set aside the ex parte decree passed against defendants Nos. 2 to 6 and direct them to file their written statement within a period of six weeks. The defendants are further ordered to pay Rs. 1,000 as costs to the plaintiffs. M. Y. H. Decree set aside.