1986 PLP 360 (MLD)

2. Another attempt for service of summons was made and this time summons were issued through Bailliff. Substituted service through publication was also attempted. The Bailliff's report is to the following: The notice was published in the "Morning News" dated 16‑12‑1983. By an order of the Registrar dated 24‑1‑1984 this service was held good by the Registrar and after noting the non‑appearance of the defendant after the service, the case was put up in Court for disposal. On 16‑2‑1984 the ex parte decree was passed by my learned brother Fakhruddin, J. It is this decree against which this application under Order IX, Rule 13, C .P.C . has been moved for setting aside this decree and for hearing the suit on merits.

3. Another development in the case may also be mentioned here. Admittedly the defendant resides in Jeddah, where he is residing since 1980 or 1981. On 17‑10‑1984 the plaintiff Bank addressed a letter to the defendant at the Jeddah address calling upon him to pay the dues and clear the liabilities of the bank against him. It is significant to note that in this letter no mention of the filing of the suit or of the passing of the decree was made by the plaintiff. The defendant replied to this letter by his letter doted 17‑11‑1984 in which he denied the liability and specifically enquired from the plaintiff whether any legal proceedings by way of suit had been taken by the plaintiffs for the recovery of this disputed and exaggerated claim. To this letter the plaintiffs sent a reply dated 3‑12‑1984 and this reply was received by the defendant on 15th December, 1984. It is Annexure 'D' to the present application. For the first time in this letter the plaintiffs informed the defendant about the suit stating as follows: "We are writing you this letter without prejudice to our rights under the decree or any admission that we had filed a civil Suit bearing No. 422 of 1983 against you in the High Court of Sind at Karachi, which has been decreed in bank's favour for the sum of Its. 10, 86, 601 with cost and interest as per orders of the Court on 16th February, 1984 against you. We have also filed execution application against you in. the High Court of Sind at Karachi."

4. The contention raised before me and also raised in the supporting affidavit which has been filed by Mrs. Khursheed Begum wife of the defendant, is that for the first time service of notice dated 3‑12‑1984 delivered on 15‑12‑1984, the plaintiff came to know about the suit and the decree which was passed ex parte on 16‑2‑1984. On 9‑1‑1985 the application under Order IX, Rule 13, C.P.C. read with section 151, C.P.C. has been filed praying for setting aside this ex parte decree.

5. Mr. Iqbal Kazi, learned counsel for the plaintiffs has vehemently argued that so many efforts were made to serve the defendant through the Bailiff and also through publication and it is presumed that the servants who were occupying the house of the plaintiff ought to have informed the defendant of the suit and the visit of the Bailiff to the house. The assumption is good so far as it goes, but in the circumstances of the case and specially in view of the fact that the plaintiffs themselves did not mention anything about the suit or the decree in their first letter dated 17‑10‑1984, it cannot be assumed with certainty that the Plaintiff had acquired knowledge of the filing of the suit. This conduct (If the plaintiff has been described as deliberate suppression of fact with ulterior motive. With attributing a questionable motive to the Plaintiff I cannot help feeling that in the circumstances of the case when the defendant remains absent from Pakistan since, 1980 or thereabout, he had knowledge of the proceedings going on against him and deliberately ignored to enter appearance and contest the suit. The learned counsel for the plaintiff has relied on the newly‑added proviso to Order IX, Rule 13 which runs as under:‑

"Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."

6. I am afraid the burden is on the plaintiff to satisfactorily show that the defendant had knowledge because a negative cannot be proved. No circumstances has been shown that such a knowledge should be attributed to the defendant except the contention that the said servant have informed the defendant of the visits of the Bailiff to his house. On such vague and flimsy ground the knowledge cannot be established against the defendant and a decree in such a situation cannot be passed against him. I, therefore, allow this application and set aside the ex part order dated 16‑2‑1984, but only on payment of costs in the sum of Rs.1,000 which the plaintiff should pay to the defendant within two weeks. M.Y.H Petition allowed.