1991 PLP 2602 (MLD)

Learned counsel for the defendants Mr. Malik Muhammad Saeed took me through the record of the case from which it appears that summons were issued thrice to the defendants through the bailiff. The bailiffi's report dated 18-4-1988 indicates that house bearing No.1202/19, Al-Noor Society, Federal B' Area, Karachi where the defendants were said to have been living was locked and the defendants had gone somewhere. Again on 22-5-1988, the same bailiff, Nazir Ahmed Baloch, reported that the house was locked and the defendants had gone out to celebrate Eid and would not come back. Third time, another bailiff Akhtar Hussian reported that on 7-8-1988 the father of one Abdul Qadir who was living there told him that the defendants, had left the house after locking a portion of the house. Summons by registered post A.D. were also sent to the defendants at the said address and the report of the postman was to the effect that `the house remained closed throughout'. It is pertinent to note that on 17-8-1988, the Additional Registrar of the Court directed the plaintiff to supply fresh address of the defendants within two weeks but the plaintiff failed to do so. Instead on 30-10-1988, the plaintiff moved an application under Order 5, Rule 20, C.P.C. alleging that the defendants had been wilfully and deliberately avoiding and/or evading to receive the summons of the Court and they may be served by substituted service by publication. The office put up the following note on this application: "Three attempts have been made. Registered summons have also been issued, returned undelivered with postal remarks that house is remained closed. Since the bailiff in his report has stated that they are not residing on the given address now." It was contended by Mr. Malik Muhammad Saeed Advocate, that the learned Additional Registrar without applying his mind `granted' the application on the basis of the said office note and without reference to the material on record and in consequence thereof service was effected on the defendants by publication. According to him what Order 5, Rule 20, C.P.C. in clear terms contemplates is that the Court must be satisfied that the defendant is keeping out of the way for the purpose of avoiding service which is not so in the present case. Here it will be useful to reproduce Order 5, Rule 20, C.P.C. as under:-- "

20. Substituted service.

(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. (2) Effect of substituted service.

Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted time for appearance to be fixed.

Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require." In support of his contention, he placed reliance on Muhammad Nazir v. Abdur Rahim reported in P L D 1968 Lah. 792 in which too there was no material before the Court on the basis of which an order for substituted service could be made by the Court. Relevant portion is as under:-- "As is evident, the processes issued by the Court to the defendants and their learned counsel for the two successive dates for 4-5-1964 and 30-5-1964 were never received back by the Court. Therefore, the real cause for the failure of the service of the notices issued to the defendants and their learned counsel for the two dates, could not be ascertained. There is nothing whatever to show that the defendants had refused or avoided to accept service of the notices issued to them. In these circumstances, there was no material before the Court on 30-5-1964, to have ordered the service to be effected on the defendants by the substituted process by advertisement in the newspaper. Order V, Rule 20 of the Code of Civil Procedure provides that where the Court is "satisfied" that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the same cannot be served in the ordinary way, the Court shall order the summons to be served in such other manner as it may deem fit. The laconic order dated 30-5-1964, passed by the Court is altogether silent and in the absence of any material on the record, it cannot be said that the Court had "satisfied" itself about it before ordering the substituted service by proclamation in the newspaper against the defendant:' In order to further support his said contention and to further justify condonation of delay learned counsel placed reliance upon Hidayatullah v. Noor Muhammad P L D 1986 Quetta 107 in which a Division Bench of the Court held:- "It will suffice to observe that if a party is not served with the notice properly, he can urge that the limitation is to start from the date of his knowledge. In the instant case, it has been pointed out by Mr. Aslam Chisti, Advocate that the petitioners/defendants against whom ex parte order was passed, had the knowledge of the proceedings, inasmuch as, they had voluntarily appeared through the Attornies and filed written statement on 15th December, 1981, which was not accepted by the Assistant Commissioner and, therefore, it cannot be contended by the petitioners/defendants that they had no knowledge of the ex parte order. In this regard, it may be observed that there is a distinction between the knowledge of the proceedings and the knowledge of the date of the order. A party may have the knowledge of the proceedings against him, but he is not obliged to put in appearance unless he is served with a process-of Court in accordance with law. The respondents/plaintiffs have not brought any material on record to indicate that factually the petitioners/defendants had the knowledge of the date of ex parte order when it was passed." It was maintained by Malik Muhammad Saeed, learned counsel for the defendants that once the Court comes to the conclusion that the ex parte decree was passed against the defendants without due service on them, the Court is bound to set it aside. Here again reference was made to the case of Malik Muhammad Nazir v. Mian Abdur Rahim and another P L D 1968 Lah. 792 as under:-- "Moreover on a parity of reasoning set out in P L D 1964 SC 97 even if it were to be held that the application by respondent to set aside the ex parte decree passed against him, was barred by time, the High Court was bound, under the circumstances of this case, to set aside the order by the learned trial Court for the ex parte proceedings in the suit and the ex-parte decree, as these were procured without due service, of the notices on the defendant." ' Learned counsel for the plaintiff, Mr. Mahmood Ahmed, on the other hand, argued that the defendants were fully aware of the institution of this suit as in the other Suit No.140 of 1987 filed by the defendants, the plaintiff had made reference to this suit in his written statement. The concealment of this very fact by the defendants would establish beyond any doubt their bad 'faith disentitling them to indulgence of the Court. From the perusal of record, it is evident that the defendants were no more living at the address given in the plaint. At the same time neither the bailiff's reports nor the postman's report state anywhere that the defendants were keeping out of the way for purpose of avoiding service on them. The plaintiff never cared to accompany the bailiff and his assertion that the defendants were avoiding service of summons was not supported by anything on record. It is not his case that for some other reason as contemplated under Order 5, Rule 20, C.P.C. summons could not be served on the defendants. The learned Additional Registrar while ordering service on the defendant by publication was unmindful of his earlier order dated 17-8-1988 in which direction was given to the plaintiff to supply fresh address of the defendants which was never supplied by him. No explanation was given by the plaintiff as to why he did not supply fresh address of the defendants. The plaintiff could have inquired from the said Abdul Qadir living in the house where the defendants were once living as to their new address but no effort was made by him in that direction. There was nothing either in the application under Order 5, Rule 20, C.P.C. or in the accompanying affidavit that the plaintiff does not know any other address of the said defendants. No order for affixation of copy of summons was made at some conspicuous place in the Court house and/or upon some conspicuous part of the house in which the defendant last resided as required under Order 5, Rule 20, C.P.C. Service by publication is an extraordinary mode of effecting service on a defendant and can only be resorted to when conditions warranting it exist and strict compliance is made of the provisions of Order 5, Rule 20, C.P.C. This is not so here. Mere knowledge of the defendants that the plaintiff had instituted a suit against them will not by itself constitute as service on them unless they themselves waive notice of summons which fact must be borne out from the record of the case. In the present case they had filed their application for setting aside ex parte decree within the statutory period of 30 days from the date of their knowledge and hence it is within time, within the meaning of Article 164 of Limitation Act. Even otherwise as no due service was effected on the defendants, the parity of' reasoning as set out in P L D 1964 SC 97 and discussed in P L D 1968 Lah. 792 is applicable with full force to the facts and circumstances of the case. In the result, the ex parte judgment and decree dated 21-2-1989 are set aside and defendants are directed to file their written statement within four weeks thereof. AA./J-127/K Ex parte decree set aside.