2007 PLP 1900 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts leading to the filing of instant civil revision are that Akram Khan, plaintiff, instituted suit against Ghulam Farid, defendant, for recovery of Rs.2,75,

000. The defendant did not appear in Court and suit was decreed ex parte by learned Civil Judge, Peshawar by order dated 7-4-2005. On 29-9-2005, defendant submitted an application under Order IX, rule 13, C.P.C., for setting aside ex parte decree, alleging that he was not served and the plaintiff had furnished his wrong address. The application having been strongly resisted, was dismissed, vide order dated 26-1-2006, on the ground that petitioner was properly served, but he intentionally failed to appear in Court. The application was also found barred by time. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Peshawar, vide order dated 19-5-2006.

2. Mr. Hussain Ali, Advocate, appearing on behalf of the petitioner, attempted to argue that petitioner was not served in the aforesaid suit as respondent gave his wrong address and with the connivance of Process Server, procured wrong report in order to obtain favourable decision. The learned counsel contended that the Courts below have not adverted to the facts of the case with due application of mind and dismissed the application in an arbitrary manner without framing any issue or recording evidence. Re-enforcing the contentions, reliance was placed on Ahmad Khan v. Haji Muhammad Qasim and others (2005 SCMR 664) and Muhammad Khan v. Muhammad Jamil and others (2004 MLD 1301).

3. Mr. Mushtaq Ahmad, Advocate, for the respondent, on the other hand, maintained that the report of the Process Server along with his affidavit and statement shows that the petitioner refused to accept service and the evidence adduced by him is not sufficient to contradict this allegation. The learned counsel added that the material on the record clearly shows that the petitioner had the knowledge of the suit and the decree passed against him and the application filed by him was barred by time. Concluding the arguments, the learned counsel reiterated that the impugned order is unexceptionable and hardly calls for interference in its revisional jurisdiction.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties in the light of the material on the file and case-law cited at the bar.

5. A perusal of the record would reveal that suit was filed on 31-7-2004. The defendant did not appear in Court and an ex parte decree was passed in favour of the respondent, vide order dated 7-4-2005. The petitioner moved an application on 29-9-2005, for setting aside ex parte decree. The same was dismissed on 26-1-2006. The defendant was summoned by trial Court, but it was reported by Iftikhar Ahmad Durrani, Process Server of the Court that defendant refused to accept service, where after service through affixation was ordered and affixation was accordingly made on the house of defendant. After affixation on the house of the defendant, the defendant was also served through publication in daily 'Khabrain' Peshawar dated 8-2-2005, but even then the defendant did not appear before the trial Court and was placed ex parte.

6. The material on record would show that the petitioner had the knowledge of the proceedings taken against him and of the decree passed against him, which is evident from the report of the Process Server and other evidence, which he had not been able to shake. Sub-rule (2) of rule 20 of Order V, C.P.C. is reproduced below for facility sake:-- "Service substituted by order of the Court shall be as effectual as if it had been made on defendant personally." Apart from the application and the statement of the petitioner, there is no evidence to show that his address was wrongly given and, therefore, according to sub-rule (2), mentioned above, substituted service is as effectual as personal service is and no limitation can be reckoned from the date of decree. In this regard reference can be made on a case titled S.R. Nawaz and another v. Mirza Nasir (PLD 1962 (W.P.)Lahore 185), where it was observed:-- "It is the case of the appellants that they were residing in Karachi and thus they could not be served. In these circumstances, the learned Civil Judge was justified in ordering substituted service. Substituted service by order of the Court is as effective as if it had been made on the defendants personally." The onus was heavily placed on the shoulders of the petitioner to prove that a copy of the plaint along with summons was not affixed on his door and that his address was wrongly given. In the absence of these facts, the sworn testimony of the Process Server cannot be put at shelf and excluded out of consideration. In a case reported as (Kanhave Lal v. Kishore Chand (164 I C 790), it was held:-- "The affidavit or statement on solemn affirmation of the process server that he had been unable to find the party and had effected service by affixing the summons on his residence is legal evidence which at least shifts the onus to the party to prove that he was not properly served." In the result and for the foregoing '' reasons, finding no substance in this civil revision, I dismiss the same and allow the parties to bear their own costs. H.B.T./76/P Revision dismissed.