1986 PLP 366 (CLC)

(b) Civil Procedure Code (V of 1908)‑ ‑"S. 115 and

0. IX, rr. 6 & 13‑‑Service of summons‑‑Conduct of applicants‑‑Ex parte decree‑‑Setting aside of‑‑Record showed that transferee Court had made several attempts to serve applicants and their counsel‑‑Applicants deliberately avoided such service and even refused to accept notice‑‑Applicants did not bother to find out any progress of their case for about 4 years‑‑Conduct of applicants showed their lack of vigilence in proceeding with suit‑‑High Court found no justification to interfere with ex parte orders of Courts below in its revisional jurisdiction in circumstances. A I R 1923 Lah. 444 ; 1970 S C M R 466 and P L D 1968 Lah. 792 ref. Abdul Khalil for Applicants. This revision application is directed against‑the order of the First Appellate Court whereby the order passed by the trial Court dismissing applicant's application under Order IX, rule 13, C.P.C. was upheld. The respondent had filed a suit on 20‑2‑1976 for possession alleging that by a registered lease deed K . D . A . had leased out the disputed property to him. The applicants have unauthorisedly occupied the said property and has refused to vacate it. After the written statement was filed in July, 1976 issues were framed on 5‑10‑1976. Thereafter, on 31‑2‑1977 by an administrative order of the District Judge the suit was transferred to the Court of XXIst Civil Judge. Thereafter it seems that the applicants did not appear before the trial Court and on 2‑12‑1980 the learned trial Court holding that notice of hearing was properly served by pasting it at the outer door of the applicants, passed an ex parte decree against them. The execution application was filed and when the notice was served the applicants appeared in August, 1981 and filed an application under Order 1X, rule 13, C.P.C. The learned trial Court held that the service of notice intimating them the date for hearing fixed on 2‑12‑1980 was proper and that the application was barred by time. The applicants filed appeal against that order which was dismissed by the impugned order in which the learned First Appellate Court held that in view of section 24‑A, C.P.C. it was the duty of the applicants to have attended the transferee Court and that the notice had also been served on them. Mr. Abdul Khalil, the learned counsel for the applicants has assailed the order on the ground that the applicants were not required to attend the transferee Court without any notice and secondly that no service of notice was effected by the transferee Court and, therefore, the application under Order IX, rule 13, C.P.C. was within time from the date of knowledge of the applicants. So far first contention of the learned counsel is concerned seems to be correct that on 31‑1‑1977 when the suit transferred administratively no date for hearing before the transferee Court was given. Therefore, it was not expected of the applicants to appear before the transferee Court on any date of hearing because it has not been fixed by the previous Court. In these circumstances section 24‑A , C .P . C . will not be applicable but that is not the end of the matter. Coming to the second contention of the learned counsel it seems that the transferee Court had made several attempts to serve the applicants although there had been delay in issuing the notices as is obvious from the order sheet. From the record it is clear that one notice was issued on 2‑7‑1977 for appearance on 8‑7‑1977 addressed to the Advocate for the applicants on the address mentioned in the Vakalatnama. The bailiff has stated that on enquiry it was found that the Advocate was not available there and his office did not exist in that premises. The learned counsel confirms this fact and has stated during the course of argument that he had left this office and shifted to other office. In this state of affair the learned counsel should have taken step to see that all communications issued through the Court on the address in the Vakalatnama filed by him are properly received by him. After this report the Court issued notice directly to the applicants. This notice was issued for 20‑9‑1979. This notice was returned unserved and the bailiff reported that he was not able to locate the house of the applicants. The learned trial Court then issued a second notice for appearance on 6‑11‑1980. The bailiff reported that when he went to serve the notice on the address which is not disputed to be incorrect, the applicant No. 1 was not present in the house as he had gone for work but Mst. Mumtazun Nisa the applicant No. 2 refused to accept stating that she would not accept without the permission of her husband, the applicant No.

1. About applicant No. 2 the report is that he was present in the house but refused to come out and accept the notice. After this report the learned trial Court again sent a notice for appearance on 2‑12‑1980 and directed the bailiff to paste a copy of the notice at the outer door of the applicants. The bailiff complied with the order and after pasting the notice obtained the signature of a witness also. On 2‑12‑1979 the applicants and their Advocate did not appear and consequently ex parte decree was passed. From these facts it is clear that several attempts were made by the learned trial Court to serve the applicants. According to the learned counsel for the applicants no such service by pasting was made by the bailiff. I am not inclined to accept mere words of the applicants. After the case was transferred in January, 1977 the applicants did not bother to find out about its progress upto August, 1981 which shows their conduct in the matter. Although this cannot be a ground for rejecting the application, this shows that the applicants were not vigilent in proceeding with the suit and in fact it gives the impression that they were delaying and avoiding the service. Mr. Khalil the learned counsel for the applicants contended that no notice by registered post was issued. It was not necessary to issue notice by registered post and the notice had properly and duly been served through the bailiff. Even otherwise any irregularity in effecting the service, which in fact the learned counsel means to say, in view of priviso 2 to Order IX, rule 13, C.P.C., cannot be pressed as a ground for setting aside an ex parte decree. The learned counsel for the applicants has referred to A I R 1923 Lah. 444 in which it was held that after the suit is transferred notice of hearing should be effected on the parties. In the present case it has been done. The learned counsel also referred to 1970 S C M R

466. This authority is not applicable to the present case as in that case in the summons which was published wrong address was given. In P L D 1968 Lah. 792 the substituted service was ordered without any material on record that the defendant was avoiding the service. On facts it is completely distinguishable. In the present case the notice has been served by the pasting and not by publication and secondly there is sufficient material on record to show that the applicants were avoiding service and had refused to accept the notice. For these reasons I find no justification to interfere with the impugned order. The Revision Application is dismissed in limine. H.B.T Revision dismissed