2007 PLP 1827 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Khan Khel, petitioner (since dead and represented by his legal heirs Mst. Sultana, widow and Khan Sidduque, son), had instituted suit on 17-1-1996 against Haji Nasir Khan, defendant, seeking possession through pre-emption of suit-land detailed in the plaint. The defendant did not appear in Court and suit was decreed ex parte by order dated 9-7-1996. In pursuance thereof Mutation No.6164 was attested on 7-10-1997 in favour of the petitioner. During the execution proceedings, Haji Nasir respondent on 4-2-2003 moved an application for setting aside ex parte decree. The application, having been contested was dismissed by order dated 16-9-2003 by learned Senior Civil Judge, Charsadda., An appeal was preferred thereagainst, before learned District Judge, Charsadda. The appeal was accepted by judgment dated 19-7-2004. Order of the trial Court was set aside and case was remanded back to the Court below with the observation:-- "Keeping in view the above facts and circumstances of the case, I hold that the trial Court had decided the application in a cursory manner and no opportunity was given to the petitioner to produce any evidence to substantiate his contention. Thus the present appeal is accepted and the impugned order is set aside and case is remanded back to the trial Court with the direction to record the evidence before giving any order on the application for setting aside ex parte decree."

2. The petitioner, feeling aggrieved thereby, has filed instant civil revision which is before me for consideration.

3. Appearing on behalf of the petitioner S.M. Attique Shah, Advocate, vehemently contended that impugned order of appellate Court has been recorded in a mechanical manner without application of independent judicial mind; that the material available on the record has not been appreciated in its true perspective; that time-barred application of respondent for setting aside ex parte decree has been given undue weight, and that respondent was fully aware of the suit pending against him and he deliberately avoided to appear in Court and answer claim of the plaintiff and thus learned appellate Court had no justifiable reason to accept appeal and unsettle the well reasoned order of the trial Court. To substantiate the contentions, reliance was placed on Mst. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99) and Metropolitan Steel Corporation v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others (1995 CLC 1346).

4. Mr. Abdul Sattar Khan, Advocate, representing the respondent, on the other hand, refuted the arguments advanced by learned counsel for the petitioner and supported the impugned judgment whole?heartedly.

5. A perusal of the record would reveal that suit-was filed on 17-1-1996. Summons was issued to defendant for 15-2-1996 which was returned un-served. Subsequently, summons were issued on 12-3-1996, 3-4-1996 and 6-5-1996 respectively which were either returned un?served or not returned. However, vide order dated 12-6-1996 respondent was served through substituted means by affixation of notices on his house and vide order-sheet dated 9-7-1996, ex parte proceedings, culminating in ex parte decree, were initiated. It has been contended with justification by learned counsel for the respondent that requirement of Order V, rule 20, C.P.C. had not been complied with and respondent has neither been served through ordinary manner, registered A.D. or through publication in newspaper and affixation of notice on his house. In order to appreciate the contention, of learned counsel, Order V, rule 20, C.P.C. is reproduced below:-- "

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 for service of summons by: (a) affixing a copy of the summons at 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 (b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or (c) urgent mail service or public courier services; or (d) beat of drum in the locality where the defendant reside; or (e) publication in press; or (f) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously: Effect of substituted service.

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

(3) 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, which shall not ordinarily exceed fifteen days." Where the defendant evades service or cannot be served in the ordinary way or refuses to accept service, or has not been heard of for a long time and the service cannot be effected in the ordinary manner, the Court if it is satisfied of the same can order substituted service under rule

20. It can only be ordered when conditions warranting it exist and the provisions of rule 20 are strictly complied with. Irregularities in this behalf will be of no consequence when the defendant waives proper notice. Unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to. Where the circumstances in which the substituted service was effected are demonstrably false, the service will be void. In the instant case, there is nothing on the file to suggest that respondent had knowledge of the suit but he deliberately avoided to appear in Court for reasons best known to him. The service of the respondent has not been proved satisfactorily. The impugned order is perfect and not open to legitimate exception. The case-law cited on behalf of the petitioner is distinguishable and speaks of the different situation. It does not promote the case of the petitioner in any manner. The civil revision is bereft of merits. The same is dismissed with no order as to costs. H.B.T./83/P???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.