P L D 1973 Karachi 603 (PLP)

Date of hearing: 22nd December 1972. This revision petition has arisen in the following circum stances:‑

2. The petitioners Nos. 1 and 2 [the petitioner No. 1 died during the pendency of this petition, and is represented by his L. Rs. 1(a) to (d)] filed a suit against the respondents in the Court of the Small Causes at Karachi, for the recovery of Rs. 1,200.00. As the respondents could not be served in spite of repeated attempts, substituted service was ordered, and an ex parte decree was passed on 7‑12‑1965. The petitioners then filed an execution application and a notice was ordered on 15‑9‑1966. On 15‑12‑1966, the bailiffs went to attach the property of tie respondents, but without any success. It is alleged that this was to the knowledge of Abdul Habib Ahmed the brother of the Chairman of the respondent society. On 19‑1‑1967, the respon dents moved an application in the Court of the Small Causes, for the setting aside of the ex parts decree, on the ground that the same had been obtained by giving a false address of the respondents. The application was resisted by the petitioners. It was contended by them that the address in the suit was the same as in the previous suit which was contested by the respondents, and later on carne to be withdrawn with the permission of the Court because of a technical hitch. It went on to say that the respondents had neither challenged the correctness of the address in the said suit, nor filed any other address for service. The other grounds raised were, that the application was barred by time and the respondents had nowhere indicated as to when they came to learn about the ex parts decree. Further, the application would not lie, as the provisions of section 17 of the Provincial Small Causes Court Act had not been complied with.

3. The learned Judge, Small Causes Court, on 9‑2‑1967 set aside the ex parts decree, by a brief order which reads as follows:‑ "I find that the ex parte decree has been passed against the defendant, when service was effected on the wrong address. I therefore set aside the decree. Let the matter be disposed of on merit."

4. It is thus to be seen, that the only plea taken in the application was the giving of the false address in the plaint with the ulterior motive of an ex parts decree. The allegations were controverted in the counter‑affidavit. There was neither an affidavit‑in‑rejoinder, nor any evidence led to put any construction on the allegations made by the respondents. Any way, under Article 164 of the Limitation Act an application for setting aside an ex parte decree, on the allegation that the summons was not duly served, had to be made within 30 days of the knowledge of the decree. There is not a word in the entire application as to when the respondents came to hear about the ex parte decree. On the other hand, the counter‑affidavit explicitly mentions that A the bailiffs of the Court had gone to attach the property on 15‑12‑1966 which fact was to the knowledge of Abdul Habib Ahmed, referred to earlier. The burden for proving want of knowledge lay upon the respondents and nothing was done to discharge the same. The order for re‑opening the case after the limitation had expired was thus clearly in defiance of section 3 of the Limitation Act and constituted illegal assumption of jurisdiction. This would call for interference under the provi sions of section 115 of the Code of Civil Procedure. This was the view taken in Piroj Shah & Co. v. Habib Shah (A I R 1926 Lah. 379), Jagadam mah Pandit v. Naresh Paundey (A I R 1936 Rang. 305) and Gopala Swami Ayyar v. O. S. Ramchandra Ayyar (A I R 1923 Mad. 503).

5. It was contended by Mr. A. K. M. Idris, learned counsel for the respondents that the High Court is not bound to interfere In the exercise of its powers under section 115 of the Code if substantial justice was done. I am afraid, I d0 not agree with this contention. It was not only a wrong decision upon a point of law but something more. When the limitation had expired, the existence of sufficient cause for not proceeding in time had to be satisfied by the respondents. It was not even attempted. In the circumstances, there was a material irregularity involved. The petitioner had a vested right in his favour and could not be deprived of that advantage so lightly. That is enough to dispose of the matter.

6. Mr. M. G. Dastagir, learned counsel for the petitioners made no address on the contention in regard to the non -observance of the provisions of section 17 of the Provincial Small Causes Court Act, 1887, which provides that an applicant for an order to set aside a decree passed ex parse, at the time of the presenting the application, had either to deposit In the Court the amount due under that decree or furnish security to the satisfaction of the Court. It would not be necessary in the circumstances of the case to examine the same.

7. In the result, the petition is accepted and the impugned order is act aside. There will be no orders as to costs. S. A. H. Revision allowed.