2006 PLP 526 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/orders passed by the learned Civil Judge and the learned Additional District Judge, Pindi Bhattian, whereby the petitioners' application under Order IX, rule 13, C.P.C. and appeal, were dismissed, respectively.

2. Succinctly relevant facts are that the respondent filed a suit for declaration with possession as consequential relief regarding suit-land, which was decreed ex parte against the petitioners vide judgment/ decree dated 14-10-1999. Petitioners filed an application under Order IX, rule 13 C.P.C. for setting aside ex parte decree on the ground that neither their service was effected nor they were aware about pendency of the suit but they were proceeded against ex parte on the basis of fake reports by the Process Serving Agency. This application was contested by the respondent, which was dismissed after putting the parties to issues and recording of evidence, vide order dated 27-5-2004.

3. Petitioner aggrieved of the order? dated 27-5-2004, disallowing their application for recall of ex parte decree filed an appeal before the learned District Judge, but remained unsuccessful as the same was dismissed on 1-11-2004. They thereafter filed instant civil revision for adjudgment of concurrent orders of the two Courts below. Respondent in response to notice by this Court has appeared and was represented through her counsel.

4. The learned counsel for the petitioners submitted that the petitioners were not served through any of the modes adopted by the trial Court for their service and that in absence of any proof to the effect that the petitioners deliberately avoided service of the summons, resort to their service through substituted means of publication in newspaper was not only illegal but also did not furnish a lawful basis to grant the respondent ex parte decree. It was also emphasized that citation in a newspaper with a restricted circulation, was not lawful, besides the fact that the newspaper carrying citation was not dispatched at the given addresses. It was further argued that law regarding decision of dispute on merit is settled whereunder it has been held that the parties should not be knocked out on mere technicalities. Reference to the judgments in the cases of Shaikh Muhammad Hussain versus Additional District Judge, Lahore and others. (1993 CLC 795), and Ashiq Hussain Shah versus Province of Punjab through Collector, District Attock and 6 others (2003 SCMR 1840) was made by the learned counsel for the petitioner in support of his submissions.

5. The learned counsel for the respondent refuted the arguments of the petitioners and supporting the concurrent orders of the two Courts below, urged that the petitioners were aware of the pendency of the suit but they deliberately avoided appearance before the trial Court, which necessitated their service through substituted means. It was further argued that citation in the newspaper carrying notice requiring appearance of the petitioners on 6-5-1999 had published in a daily newspaper and in spite of absence of the learned Presiding Officer on account of casual leave, ex parte proceedings on the next date of hearing, could have been taken on the basis thereof, as per judgment in the case of Mst. Aniz Maryam versus Mst. Zaibun Nisa and 2 others (PLD 1998 Lahore 342). It was further emphasized that according to petitioner's own showing they appeared in response to publication in newspaper before the Court on 6-5-1999 when the Presiding Officer was on leave. It was further submitted that concurrent findings of facts returned by the two Courts below were not open to interference in the revisional jurisdiction of this Court, as there has been no misreading of record.

6. I have heard the learned counsel for the parties and have examined the record, appended herewith. Proceedings by the trial Court conducted on suit of the respondent revealed that summons for service of the petitioners were ordered to be issued on four occasions but each time none of them could be served. On 12-11-1998, Reader of the trial Court had directed notice through ordinary process, registered cover acknowledgment due for 17-12-1998, for which date as well their service was not effected. The learned trial Judge who was cognizant of the suit, on 17-12-1998 passed the following orders. "Service of the defendants has not been effected. Defendants be got served through publication in daily newspaper "Saadat" for 1-2-1999. Expenses of citation be deposited within 3 days."

7. On the adjourned date, citation in newspaper did not appear and consequently the case was adjourned to 6-5-1999 and on this date of hearing, Presiding Officer was on leave. The petitioners were preceded against ex parte on 27-5-1999 on the basis of notice in the newspaper requiring their appearance on 6-5-1999.

8. Order V, rule 20, C.P.C. empowered the trial Court to effect the service of the "defendants/petitioners through substituted means subject to the condition that Court should have satisfied itself that defendants were keeping out of way to avoid service or that their service C could not be effected in an ordinary way. Order dated 17-12-1998, the above referred, did not demonstrate that the trial Court made its satisfaction that defendants had been avoiding their service. This provision of law also equipped the trial Court to adopt other substituted modes of service including affixation of a copy of the summons at some conspicuous part of the house of the defendants or at the beat of drum in the locality where they resided but he overthrowing these powers jumped to publication in newspaper with the name of "Saadat". No doubt it is daily newspaper but it has a little circulation as compared to other newspapers like "Jang" or Nawa-e-Waqt. The case in hand related to village Gad Gor Tehsil Pindi Bhattian District Hafizabad, and nobody knows whether newspaper "Saadat" is being read or has any circulation there. File is absolutely thirsty of the proof as to whether newspaper carrying citation for appearance of the petitioners before the trial Court on 6-5-1999 "was dispatched through post to them.

9. Another point which hinges for determination is, as to whether the petitioner could be proceeded against ex parte on the basis of citation in newspaper carrying notice for appearance on 6-5-1999, on any subsequent date as the Presiding Officer was on casual leave on 6-5-1999. The Order V Rule 6 made it mandatory for the Court, to mention time, date and place in the summons for appearance of the defendants, with sufficient cussion period, enabling the nominee to appear and answer on such date. Language of this provision of law is unambiguous whereby the defendant has to be called upon on a prefixed time, date and place for the appearance. In the case in hand citation in newspaper required the petitioners to appear before the trial Court on 6-5-1999, on which date Presiding Officer was not available and consequently, no action against them could have been or was taken. Trial Court did not issue any fresh citation for the next date of hearing and instead on the basis of citation for 6-5-1999, petitioners were proceeded ex parte. To my mind, the course adopted by the trial Court was not justified being contrary to law. Likewise, respondent could not prove that petitioners were aware of pendency of her suit. No explanation could be furnished to the query as to what the petitioners would have gained knowledge by remaining away from the trial Court in spite of knowledge of the pendency of the suit.

10. As regards limitation for filing of an application under Order IX, rule 13, C.P.C. , this controversy is settled by this time to the effect that where service of the defendants have been effected in accordance with law, an application under this provision of law must be filed within limitation provided by Article 164 of the Limitation Act 1908, which is 30 days from the date of the decree but where the defendants were not personally served or their service was not effected according to law, limitation would be governed by Article 181 of the Act (ibid) as per judgment by the Honourable Supreme Court in the case of and by this Court in the case of Lithocraft Corporation versus A. Habib through his legal heirs (1987 CLC 1730). Now the petitioner have not been personally served and their alleged service through citation in the newspaper being defective, for the reasons noted above, limitation for filing application under Order IX, rule 13, C.P.C. will be governed by residuary Article 181 of Act 1908 that too, from the date of knowledge of the decree. Respondent's suit was decreed ex parte on 14-10-1999 and application under discussion having been filed on 22-11-1999, i.e. within one month, could not be said to be barred by limitation. Clipping aside all the technicalities, I have no ambiguity that service of the respondent was not effected in accordance with law and they had no knowledge of pendency of the suit by the respondents. Suit involved a huge valuable immovable property, requiring determination of intricate question of law and of public importance, thus, the same should have not been decided in the manner adopted by the trial Court.

11. For the reasons noted above, judgments/orders of both the Courts below being tainted with material irregularity/ illegalities are not sustainable at law, therefore, this petition is consequently allowed and by accepting the petitioners' application under Order IX, rule 13, C.P.C., ex parte judgment/decree dated 14-10-1999 passed by the learned Civil Judge and the appellate judgment dated 1-11-2004 are set aside with the result that suit of the respondent shall be deemed to be pending which shall be decided afresh in accordance with law, after allowing the petitioner to file written statement. Parties are directed to appear before the trial Court on 16-1-2006. There will be no order as to costs. S.A.K./S-6/L?????????????????????????????????????????????????????????????????????????????????????? Revision accepted.