1986 PLP 1660 (MLD)

(c) Civil Procedure Code (V of 1908) ‑‑‑S. 96 &

0. XXXVII, R. 3‑‑Appellate jurisdiction, exereisp of‑‑Ex parte decree against defendant having been obtained on basis of substituted service which was effected without valid basis therefor, High Court in exercise of appellate jurisdiction set aside such decree‑ Case was remanded to Trial Court with option to defendant to move application for defending suit, if he so wished, within prescribed time. Mushtaq Ali for Appellant. Sultan A. Allana for Respondent. Dates of hearing: 21st and 26th May, 1986. In a suit for recovery of Rs.18,137.22, filed by the respondent under Order XXXVII, C.P.C., a decree ex parte was passed against the appellant on 4‑3‑1977. The summons have been Served upon the appellant in the ordinary manner and bailiff had reported all along that the address was incomplete. The address of the appellant was shown in the suit as Gulzar Ellahi Monga, resident of Judia Bazar, Karachi. There was hardly any address upon which any person could be served. The respondent's counsel has informed me that the summons upon the appellant were served through publication in newspaper. However, the basis of substituted service has to be first fully established before person could be saddled with the responsibility of the notice of a suit by publication.

2. The appellant had moved an application under Order IX, rule 13, C.P.C. on 2‑12‑1979 supported by affidavit to the effect that he was never served with the summon and that his full address was fraudulently suppressed and that he came to know on 12‑11‑1979 through a letter of the respondent that a decree had been passed against him. This letter is a surprise because the complete address of the appellant had been addressed as Shop No.2. Mehran Market, Zakria Land, Judia Bazar, Karachi. It is, therefore apparent to me that the respondent had this full address of the appellant and yet they never disclosed the same to the trial Court so that a proper summons could be addressed to the appellant.

3. An application under Order V, rule 20, C.P.C. can be justified only if there is an allegation that the defendant is avoiding to receive the service of summons or notices. In the present case there is n substance for the allegation that the appellant had deliberately avoided to receive the summons. On the other hand the allegation of the appellant that his full address was suppressed appears to be justified in the circumstances.

4. The learned VIIIth A.D.J. dismissed the application under Order IX, rule 13, C . P. C . on 3‑4‑198(1 on the ground that the order of 4‑3‑1977 was not an ex parte order and that no clarification had been given by defendant to justify the long delay of 2 years in making the application. I am quite clear that the learned Judge had not proceede to decide the application under Order IX, rule 13, C.P.C. in. the correct manner. The decree passed on 4‑3‑1977 was evidently as e parte decree as the appellant had no notice of the suit and, therefore, he could not have made an application for seeking permission to defend the suit. Moreover the delay of one year and nine months in making an application was evidently justified as the appellant had clearly state that he had come to know for the first time on 12‑11 1979 that a decree had been passed against him and before that time he never ha such knowledge. Under Article 164 of the Limitation Act there is 30 days time prescribed for filing this application. In case where summon have been served, then it will run from the date of service of notice: But where the summons have not been served then from the date o knowledge. The learned A.D.J had failed to apply correct law in this case and, therefore, the order, dated 5‑4‑1980 is hereby set aside and as consequence thereof the judgment and decree, dated 4th March, 1977 is also set aside. The appellant is now deemed to have‑had notice of the pendency of the suit in the Court of VIIIth A.D.J., and therefore, if the appellant wants to move an application under Order XXXVII, rule 3, C. P.C. then he should do so within the time prescribed by law. The R & P should be sent back to the same Court immediately. This appeal is, therefore, allowed in the above terms. A.A. Appeal accepted.