P L D 1993 Lahore 469 (PLP)

This Constitutional petition is directed against the order of the trial Judge dated 9-1-1990 setting aside the ex parte decree passed against respondent No. 1 and the order of the Additional District Judge dated 28-10-1991 dismissing the petitioner's revision petition.

2. Facts giving rise to this petition, briefly stated, are that the petitioner filed a suit for possession against respondent No.1 on 26-1-1989. Summonses issued to respondent No. 1 were received back with the report of his refusal to accept the same. He was then sought to be served through proclamation in the 'Weekly Kehkashan' and on his failure to appear in Court was proceeded against ex parte on 5-3-1989. The trial Court recorded ex parte evidence of the petitioner on 14-3-1989 and on the same day passed ex parte decree against respondent No.

1. In execution of the decree, warrants of possession were issued on 17-4-1989 which were allegedly resisted by respondent No.l. On the Bailiff's report of resistance, the Court issued fresh warrants of possession with a direction to execute the same with the help of the police. The petitioner accordingly obtained possession of the suit premises on 20-4-1989.

3. On 22-4-1989, respondent No.1 moved an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree dated 14-3-1989 alleging therein that he was never served with any ,summonses. "No. Process-server reached at site ... ... ... No affixation of the summonses was effected" and the Process-server made an incorrect report. It was thus contended that there was no basis for effecting substituted service. It was also pointed out that the Weekly in which the citation was made had no circulation in the market. The respondent claimed that he had no knowledge whatsoever about the pendency of the suit and that he came to know of the ex parte decree only on 20-4-1989 when the Bailiff came on the spot and dispossessed him forcibly. Application was resisted by the petitioner on a number of grounds which gave rise to the following issues:-- (1) Whether the petition is barred by time? OPR (2) Whether the petitioner should have filed a petition under section 5 of the Limitation Act? If so, what would be the effect of non-filing? OPP (3) Whether the petitioner has validly executed deed for General Power of Attorney in favour of Bashir Ahmad? If so, its effect? OPR (4) Whether there exists sufficient cause for the setting aside of ex parte judgment and decree? OPA (5) Relief.

4. Both the parties led evidence in support of their respective contentions. Respondent No.1 produced three witnesses including his Special Attorney Bashir Ahmad Butt who appearing as A.W.3 stated that respondent No.1 was residing in Karachi and he was looking after his business at Lahore. He further stated that no summons, registered letter or proclamation in the newspaper was received nor had any Process-server come on the spot. He also ,deposed that a stay order had been issued in favour Of. respondent No.1 by the Civil Court in a suit filed against the present petitioner and his brothers with respect to the property in dispute. Documents Exhs. A/I to A/5 were brought on the record to prove the institution of a suit for permanent injunction by respondent No.1 against Haji Riaz etc., and issuance of the stay order regarding possession in favour of respondent No. 1 on 5-10-1988 Petitioner, on the other hand, examined as many as seven witnesses Out of them evidence of only three witnesses is really relevant to the issues .They are Ghulam Jilani Niazi, Managing Editor, "Weekly Kehkashan," R.W.3 Muhammad lqbal, Process-server R.W.4 and Muhammad Riaz Special Attorney of the petitioner R.W.7. Muhammad Iqbal, Process-server, appearing as R.W.4 stated that he took the summoness to respondent No.1 who was identified by the petitioner. The respondent refused to accept the summonses. He prepared the report of refusal Exh.R.W.4/1 which was attested by the petitioner. R.W.3 stated that a proclamation was published in "Weekly Kehkashan" on 1-3-1989. He further stated that a copy thereof was sent under postal certificate (Exh.RW3/2) to respondent No.1 at his address. The witness, however, could not vouch that it was received by respondent No.l. Petitioner's Special Attorney Muhammad Riaz appearing as R.W.7 deposed that he and his brother i.e. the petitioner accompanied the Process Server to the spot. His brother identified respondent No.l. He further stated that the Process Server showed the summonses to respondent No. I who after reading the same refused to accept it and his brother-signed the report of the Process-server.

5. Learned trial Court after considering the evidence on record was not satisfied that respondent No. 1 was duly and properly served. It was observed by the learned trial Court that the Process-server did not personally know respondent No.1 who was identified by the petitioner/decree-holder who alone accompanied the Process-server and also testified his report. The trial Court noted that the report of the Process-server was not signed by any independent person. The trial Court also observed that the Process-server did not affix copy of the summons on the outer door or some other conspicuous part of the house of the respondent and as such the provisions of Order V, Rule 17, C.P.C. not having been complied with "there was no occasion to order the substituted service of the defendant". Note was also taken of the statement of R.W.3 that he did not know whether respondent No. 1 had received the copy of the proclamation published in the "Weekly Kehkashan". The learned trial Court thus held that "the summons were not duly served upon the defendant and as such, the period of limitation for. setting aside the ex parte decree would start from the date of knowledge and not from the date of passing of the decree. Resultantly, the present application for setting aside the ex parte decree is not covered by the Article 164 of the Limitation Act. The petitioner came to know about the ex parte decree on 20-4-1989 and this fact is fully proved from the evidence of the petitioner. The present application under Order IX, Rule 13, C.P.C. was moved on 22-4-1989 which is within the prescribed period of limitation and there 'was no need to file an application under section 5 of the Limitation Act alongwith the main application." Issues No. I and 2 were accordingly decided against the petitioner. The trial Court also decided issue No.3 against the petitioner holding that "Bashir Ahmad Butt had a validly executed general power of attorney in. his favour from Muhammad Asif Butt and he was competent to move the present application". Issue No.4, too, was found against the petitioner and in favour of respondent No.l. While discussing issue No.4, the learned trial Court apart from considering other evidence on which it based its afore noted findings on issues Nos. 1 and 2 also took note of the fact that respondent No.1 had earlier filed a suit for permanent injunction against the petitioner regarding the property in dispute in which a temporary injunction was issued in his favour on 5-10-1988 which injunction was operative not only on 14-3-1989 (the date on which the ex parte decree was passed) but also on 20-4-1989 (when the petitioner/decree-holder took possession of the property in dispute in execution of the ex parte decree). In the circumstances, it was observed by the trial Court that "it is not believable .that Muhammad Asif Butt, present petitioner, would not have come to the Court to safeguard his possession over the property in dispute". Yet another circumstance which the learned trial Court took into consideration when discussing issue No. 4 was that when ex parte proceedings were ordered on 5-3-1989, the case was adjourned to 27-4-1989 for recording evidence but subsequently on an application moved by the petitioner/decree-holder date of hearing was accelerated and evidence was recorded on 14-3-1989. For all these reasons, the learned trial Court held that there were sufficient grounds for setting aside the order of ex parte proceedings dated 5-3-1989 and the ex parte judgment and decree dated 14-3-1989. Respondent's application for setting aside the ex parte decree was accordingly allowed by the trial Court vide judgment dated 9-1-1990.

6. Petitioner preferred an appeal but with no better result as the same was dismissed by the Additional District Judge vide his judgment dated 28-10-1991 upholding the findings of the trial Court on all the issues. The learned Judge observed that admittedly, no independent witness was present when the defendant/respondent had allegedly refused to accept the service of the process and since the respondent was residing in Karachi, "no useful purpose could be served by publication of a proclamation in a Weekly Magazine of Lahore. The possibility that the applicant bad not seen the proclamation and of his remaining unaware of the same cannot be ruled out. Thus there was sufficient reason . for setting aside the ex parte proceedings/judgment 'and decree". 7. 1 have heard the learned counsel for the petitioner. As noted hereinabove, the two learned Courts have not accepted and for good reasons that respondent No.1 was personally served and he refused to accept the summons. It is not denied that the Process-server did not know respondent No.1 personally and it was the petitioner who identified him. No independent person was present at the time of the alleged refusal by respondent No. 1 to accept service of summons. It was also not denied that the Process-server did not affix the summons on the outer doo ' r or any other conspicuous part of the residence of respondent No.l. In the circumstances, it has been rightly held by the learned trial Court that there was no justification for resorting to substituted service of respondent No.

1. The learned Courts below appear have accepted the stance of respondent No.1 that he was residing in Karachi. That being so, the publication of a proclamation in a Weekly magazine of I Lahore was hardly of any use particularly, when the Managing Editor of the magazine appearing as R.W.3 could not specifically state that the proclamation was received by respondent No.1 and more so for the reason that the magazine has a limited circulation of which judicial notice can be taken. That being so, C despite substituted service resorted to in the instant case, the learned Courts below have come to the conclusion that respondent No.1 was not duly served ,1 and that he came to know of the ex parte decree on 20-4-1989 when he was dispossessed from the premises in dispute in execution of the impugned decree. Thus the application filed by respondent No. 1 for setting aside the ex parte decree dated 22-4-1989 was held to be within time. It may pertinently be observed that the finding of want of due and proper service is by itself a sufficient ground for setting aside the ex parte proceedings/decree. No exception can, therefore, be taken to the findings recorded and the orders JA passed by the learned Courts below. Needless to observe that the findings of the Courts below that respondent No.1 was not duly served and there existed sufficient reasons for setting aside the ex parte decree are based on proper appreciation of the evidence/material on the record. Learned counsel for the petitioner was unable to point out any misreading or non-reading of any material evidence on the record. It may also be noted that the matter rested in the discretion of the Courts below which discretion is not shown to have been exercised arbitrarily or capriciously so as to warrant interference by this Court in writ jurisdiction. It is also an accepted principle that law favours adjudication B of cause on merits. The impugned orders of the Courts below are in accord with this principle and for this reason also, no interference with the impugned orders is called for in discretionary and equitable jurisdiction in writ.

8. Upshot of the above discussion is that I find no merit in the writ petition which is dismissed in limine. AA./M-980/L Petition dismissed