2006 PLP 963 (MLD)

SARDAR MUHAMMAD ASLAM, J.

Through this single judgment, I intend to dispose of Writ Petitions Nos.2755 of 1997, 3530 of 2001 and 2138 of 1998 as common question of law and facts is involved in all these matters.

2. Brief facts of these petitions are that the respondents/plaintiffs along with Mst. Qasim Bibi widow of Walayat Khan filed a suit for declaration against numerous defendants including the, petitioner/defendants to the effect that they are eligible for allotment of the land in dispute and its allotment in favour of defendants Nos.1 to 45 including the petitioners was illegal, void and ineffective qua them. The suit was contested by some defendants and filed their written statement. During the pendency of suit the contesting defendants absented themselves and were proceeded ex parte vide order dated 7-4-1982. After recording the ex parte evidence the then Civil Judge decreed the suit vide ex parte judgment and decree dated 31-1-1989. The petitioners/defendants made an application under Order IX, rule 13, C.P.C. read with section 151, C.P.C. for setting said the aside ex parte decree. The said application was allowed vide order dated 15-7-1996. Feeling aggrieved the respondents/ plaintiffs filed' a revision petition before the learned Additional District Judge, who accepted the same vide the impugned order dated 3-10-1997.

3. Learned counsel for the petitioner submits that an order of substituted service through publication was bad in law, hence ex parte proceedings against the petitioner culminated into ex parte proceedings against the petitioner culminated into ex parte decree are null and void ab initio. He further contends that the petition was well within time from the date of knowledge. He placed reliance on Syed Muhammad Anwar, Advocate v. Sheikh Abdul Hay (1985 SCMR 1228); Muhammad Zaman v. Muhammad Jameel and 4 others (1992 CLC 873) and Mst. Hussain Jan and 8 others v. Muhammad Suleman through legal heirs and 16 others (PLD 1994 Peshawar 95).

4. Conversely, the learned counsel for the respondents states that the petition was barred by time. The revisional Court has taken into consideration the material before it and passed the order which is not amenable to constitutional jurisdiction.

5. Heard. Record perused.

6. Application of the petitioners/defendants under Order IX, rule 13, C.P.C. was submitted on 10-7-1993. It was pleaded that they were neither served nor obtained knowledge of pendency of the suit. They also claimed to be bona fide purchaser for consideration through sale-deeds. It was averred that a week's time before the date of presentation of the application, they acquired the knowledge of ex parte decree against them. Reply was filed.

7. At the very outset, it is observed that the learned trial Court directed the plaintiff/decree holder to file correct addresses of the defendants on 27-5-1981. It was not complied with. Compliance was required by order dated 24-6-1981, 25-7-1981, 27-9-1981 and 28-10-1981, but to no avail. The plaintiff contumaciously failed in-compliance. In absence of correct addresses of the defendants issuance of summons/notices on correct addresses in the first instance was not possible. The trial Court of its own directed substitution of service by way of proclamation in the newspaper vide its order dated 15-12-1981 and on receipt of publication of proclamation, ex parte proceedings were taken.

8. Order V, rule 20, C.P.C. provides for substituted service. Such a service in disregard to the provision of Order V, rule 20, C.P.C. has been considered to be nullity in the eyes of law. Reference can be had to Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq (1985 SCMR 1228); Muhammad Zaman v. Muhammad Jameel and 4 others (1992 CLC 873) and Mst. Hussain Jan and 8 others v. Muhammad Suleman through legal heirs and 16 others (PLD 1994 Peshawar 95).

9. The Revisional Court had observed that one of the petitioners Muhammad Younis while appearing as A.W.2 admitted acquisition of knowledge through Lal Din, a tenant on the suit-land, in the month of July, 1993. The petition is 'within time from the date of knowledge. However, decision on issue of limitation was rendered against the petitioners for non-production of Lal Din, tenant in the witness-box. Muhammad Ijaz, one of the plaintiffs examined himself as D.W.1. He stated that the petitioners had acquired the knowledge of pendency of the suit and decree as they were served through summons and proclamation and that the petition is barred by time. In cross-examination, he stated that the petitioners are not personally known to him. Jhelum is big city spread over several Mohallahs.

10. Learned Revisional Court took the view that the publication in the press was substitute of personal service and effectual. It was in accordance with law on ground of initial presumption in favour of the plaintiff. This finding is not sustainable in law as the learned revisional Court escaped to take notice of different orders passed by the trial Court for supply of correct addresses. Non-compliance of various directions of the Court should have resulted in dismissal of the suit rather directing substituted service. In absence of issuance of summons, in the first instance, at correct address, order of substituted service was not lawful. The constitutional petition is therefore, maintainable in law. Contention of the learned counsel on this count is rejected.

11. For what has been discussed above, the writ petition is allowed. The order dated 3-10-1997 of the learned Additional District Judge is set aside and that of learned trial Court is restored. H.B.T./M-1159/L Petition allowed.