P L D 1965 (W (PLP)

SHAKIRULLAH JAN, J.-Briefly the facts giving rise to this second appeal are these: Abdul Ghani and three others, residents of village Majhuan, illaqa Nara, Tehsil Abbottabad District Hazara, brought a suit against Akbar for the possession of land measuring 3 kanals and 15 marlas, comprised in Khasra No. 297, situate in the area of the aforesaid village and for the recovery of Rs. 1,000 as damages in respect of income of a water mill belonging to the plaintiffs comprised in Khasra No. 296, which had fallen down due to the forcible possession of the defendant and thus the plaintiffs were deprived of their income. The case was registered in the Court of Civil Judge, Abbottabad, on the 30th of June 1960, who issued summons to the defendant for the 30th of July 1960. The service was, however, not effected on the defendant due to his refusal to accept the same, and a fresh summons was issued for the 16th of September 1960, with a note that if personal service was not possible, then substituted service was to be effected. The report of the process-server dated the 2nd of September 1960, on the reverse of the summons issued on the 30th of July 1960, shows that the appellant refused to accept service and so substituted service was ejected. On receipt of the above-mentioned report, the trial Judge took ex parte proceed ings against the appellant and after recording evidence, passed ex parte decree for the possession of the land in suit and for the recovery of Rs. 200 with costs, by his order dated the 24th of November 1960. On the 6th of January 1961, the appellant applied under Order IX, rule 13, C. P. C., for the setting aside of the ex parte decree alleging that his proper address was not given by the respondents. This application was resisted by the respondents and after recording evidence produced by the parties, the Civil Judge, 1st Class, Abbottabad came to the conclusion that the appellant failed to prove that he had no knowledge about the case and on the other hand, the respondents succeeded in proving that the appellant had the knowledge about the case before the 16th of September 1960. The decree was passed against the appellant on the 24th of November 1960, and the application dated the 6th of January 1961, was barred by time as the appellant had the knowledge about the case prior to the 16th of September 1960. He therefore, held that the application for setting aside the ex parte decree was barred by time and rejected it, by his order dated the 15th of May 1960. An appeal preferred by the appellant was dismissed in limine by the District Judge, Hazara, by his order dated the 3rd of July 1961.

2. It was contended that the appellant had shifted from village Bodla since about 15 years before the institution of the suit to Rawalpindi, where he was selling milk and the respondents had wrongly given his address in the suit as a resident of village Bodla and, therefore; service on the appellants was not proper. In support of this contention, apart from the statement of the appellant, there is no evidence on the record. The statement of the appellant shows that he had a house in village Bodla and often comes to his village. He admitted that in 1959, a complaint was brought against him by the respondents regarding the suit property. He was convicted and sentenced to a term of imprison ment in 1960, but was acquitted on appeal.

3. The material on the record shows that the appellant has a house in village Bodla and therefore, his statement is not sufficient to prove that he has shifted from that village to Rawalpindi, where he was permanently settled. His statement does not show as to where his house and shop in Rawalpindi are situate, and so, taking these facts into consideration, we have come to the conclusion, that the appellant failed to prove that he was no longer a resident of village Bodla and had shifted from there to Rawalpindi.

4. Learned counsel for the-appellant contended that under Article 164 of the Limitation Act, limitation for bringing application for setting aside ex parte decree was 30 days from the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. He urged that it was on the 4th of January 1961, that the applicant got knowledge of the ex parte decree and, therefore, the application brought by him on the 6th of January 1961 was well within time.

5. A careful perusal of the evidence on the record would show that the appellant 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. As stated earlier, on the 30th of June 1960, summons was issued to the appellant for the 30th of July 1960. The report of the process-server dated the 10th of July 1960, which is on the back of summons, shows that the appellant refused to accept service. This report is signed by Abdus Sattar Lambardar as marginal witness. On the 30th of July 1960, a fresh summons was issued for the 16th of September 1960 and again, the appellant refused to accept service. In support of this report, the respondent, the process-server and Abdus Sattar Lambardar were examined from whose testimony, it is abundantly clear that on both the occasions; namely, 10th July 1960 and 2nd September 1960, the appellant had refused to accept service and, therefore, on the last mentioned date, a copy of the summons was affixed on his door and substituted service was effected.

6. Learned counsel for the respondent made a reference to sub-rule (2) of Rule 20 of Order V, Civil P. C., which lays down:- "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 appellant, as pointed out above, there is no evidence to show that his address was wrongly given and, therefore, according to sub-rule (2), A mentioned above, substituted service is as effectual as personal service is and so limitation can be reckoned from the date of decree.

7. Learned counsel for the respondents relied upon S. R. Nawaz and another v. Mirza Nasir Ali (P L D 1962 Lah.185). In para. 6 at page 187, 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."

8. It was for the defendant-appellant 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, we are of the opinion that the sworn testimony of the process-server and the statement of Abdus Sattar Lambardar marginal witness to the report clearly show that the appellant had the knowledge of the suit having been brought against him and this evidence has not been contradicted by the solitary statement of the appellant. Apart from the statement of the process-server, his report and affidavit on the back of the summons have also not been contradicted. 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."

9. In the present case the report of the process-server along with his affdavit and statement shows that the appellant refused to accept service and the evidence adduced by him is not sufficient to contradict this allegation. The material on the record clearly shows that the appellant had the knowledge of the suit and the decree passed against him on the 24th of November 1960, and the application brought by him on the 6th of January 1961, was therefore barred by time. We therefore maintain the findings fro the two Courts below and dismiss this appeal with costs. K. S. A. Appeal dismissed.