2013 PLP 909 (YLR)

RAUF AHMAD SHEIKH, J.

The appellant has assailed the vires of order dated 28-1-2012 passed by the learned ADJ, whereby an application moved by him to set aside the ex parte decree dated 30-9-2010 for recovery of Rs.14,00,000 passed against him in a suit under Order XXVII Rules 1 & 2, C.P.C. was dismissed.

2. The facts in brief as emerge on perusal of the record are that the plaintiff/ respondent filed the suit for recovery of Rs.14,00,000 against the appellant on the basis of Cheque No.152286 dated 17-5-2009 drawn on MCB Dhoke Mangtal, Rawalpindi. It was contended by him that the appellant and another entered into an agreement to sell a plot measuring 10-marlas situated at Dhoke Hassu, Rawalpindi but it subsequently transpired that they had played a fraud and received the disputed amount from him although the plot was not owned by them. The plaintiff/respondent made a request for return of the consideration and on this a cheque was issued, which was dishonoured on its presentation. Case F.I.R. No.318 Police Station Ganjmandi was registered and he also filed a suit for recovery of the amount. During the proceedings a compromise was effected and the appellant/defendant No.1 issued the Cheque No. 152286 dated 17-5-2009 drawn on MCB, Dhoke Mangtal, Rawalpindi and the suit was withdrawn. However, on presentation in the Bank, the cheque was again dishonoured. The appellant/defendant No.1 was served through his real brother but he did not appear so was proceeded against ex parte. After recording the evidence, the learned trial court proceeded on to decree the suit on 30-9-2010.

3. On 21-5-2011, the appellant filed an application to set aside the ex parte decree with the contention that he was never served and at the time of institution of the suit he was behind the bars and this fact was in knowledge of the decree holder but he concealed it; that he learnt about the passing of the decree two days back; that his address was wrongly mentioned; that the ex parte decree is based on malice; that absence was not willful and the decree is against the principles of natural justice.

4. The learned ADJ held that the service was effected through real brother; that the petitioner is resident of Mohallah Alamabad, Dhoke Hassu Road, Rawalpindi and the same address was given in the plaint; that he was served through real brother and prior to it the notice was sent through Superintendent Jail but he had been released from the Jail. It was also observed that in the execution petition, the property of the petitioner was attached on 25-2-2011 and show-cause notice was issued to him and as such the petition was not within time.

5. The learned counsel for the appellant has reiterated the above contentions.

6. It is not denied that the notice was served through real brother of the petitioner. Under Order V, Rule 15, C.P.C., in absence of the defendant, the service through adult male member of the family is complete. It is not contended that he has strained relations with his brother or he did not inform the petitioner. Moreover, his property was attached during the execution proceedings and notice was issued to him on 25-2-2011. On attachment of his property, he must have attained the knowledge of the ex parte judgment and decree. An application to set aside the ex parte decree can be filed within 30 days of the decree or where the summons was not duly served when the applicant attains the knowledge of the decree. In this case, the summons was duly served through adult male member of the family and thereafter, the appellant must have attained the knowledge on attachment of the property and as such the petition to set aside the ex parte judgment was barred by time by all standards. There is another important aspect of the matter. The learned counsel for the appellant has admitted at the bar that no application for leave to appear and to defend the suit under Order XXXVII, Rule 3, C.P.C. was moved along with the application to set aside the ex parte judgment and decree. He was required to move the application under the said provisions of law within ten days of the service. He was duly served through his real brother. The learned counsel for the appellant has contended that even after service through adult male member of the family a proclamation in the newspaper should have been issued. This contention is without force as substituted service under Order V, Rule 20, C.P.C. can be resorted to only if it is proved that the defendant is avoiding the service or for any other reason the ordinary service is not possible but in the instant case the service was effected in accordance with Order V, Rule 15, C.P.C. In view of the amendment of this Court in Rule 15 a defendant can be served through adult male member of the family, if he is absent from his residence. The address of the appellant was correct so the service through his brother in his absence was complete and no proclamation under Order V, Rule 20, C.P.C. was required. There was no reason available to set aside the ex parte decree and even otherwise, the petition was barred by time. The order of the learned trial court does not suffer from any illegality or infirmity. The appeal is without merits and the same is hereby dismissed in limine. KMZ/A-58/L Appeal dismissed.