2014 PLP 425 (YLR)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioner has called in question the judgment and decree dated 26-11-2011 of learned Additional District Judge-II, D.I.Khan whereby the appeal filed by the petitioner against the order dated 17-2-2011 of learned Civil Judge-VI, D.I.Khan was dismissed.

2. Brief facts giving rise to the instant revision petition are that Mst. Ashu Mai plaintiff (now dead and represented by her legal heirs i.e. the respondents) had filed a suit against the petitioner/defendant for declaration, perpetual injunction and possession which was ex parte decreed in her favour vide judgment and decree dated 16-6-2008 of learned Civil Judge-VI, D.I. Khan. The petitioner/defendant filed an application on 11-12-2010 for setting aside ex parte decree which was contested. After hearing the arguments, the learned Civil Judge-VI, D.I.Khan rejected the application vide order dated 17-2-2011.

3. Aggrieved of the order dated 17-2-2011, the petitioner/defendant filed an appeal which was also dismissed by learned Additional District Judge-II, D.I.Khan on 26-11-2011, hence the instant revision petition.

4. Learned counsel for the petitioner contended that the Courts below have wrongly passed ex parte decree against the petitioner, as the petitioner was not served. He contended that the ex parte proceedings were initiated without observing the legal requirements provided for passing ex parte decree. He argued that the limitation has to be reckoned from the knowledge of the petitioner and not from the date of ex parte decree, as the petitioner has not been served personally. He contended that even on merits, the judgments/orders passed by the Courts below are not passed in accordance with law.

5. As against that, the learned counsel for the respondents argued that summons were issued by the trial Court on the same address which is admittedly the address of the petitioner and he has mentioned the same in his petition also. He contended that under Article 164 of the Limitation Act, a period of one month is prescribed for filing petition whereas the petitioner has filed the application for setting aside ex parte decree after about 2-1/2 years which is hopelessly time barred. He further argued that the trial Court has complied with the legal provisions prescribed for service of summons but the petitioner has deliberately avoided to appear before the Court, therefore, his application was rightly rejected by the Courts below.

6. I have considered the arguments of learned counsel for the parties and perused the record with their valuable assistance.

7. Perusal of the record shows that the suit was filed on 22-11-2006. On first date of hearing i.e. 23-11-2006, the case was posted for 21-12-2006 which reveals that the summon was not returned either served or unserved, but instead of issuing fresh notice for personal service or service through male member of petitioner's family, service through affixation of summon on conspicuous place with boundaries given in the order sheet was ordered. The service by affixation was ordered at pre-mature stage, as the legal requirement prior to that was not complied with and even the service by affixation was not proved on the record, as the process server who had affixed the notice on conspicuous place has not been examined in the Court and as such on the first date of hearing, the petitioner was placed ex parte which culminated into ex parte decree.

8. The application for setting aside ex parte decree was moved on 11-12-2010 by the petitioner, on acquiring knowledge of the ex parte decree passed against him, which was dismissed by the trial Court on 17-2-2011, but no opportunity of pro and contra evidence, especially the statement of process service who effected service by affixation was given to the petitioner. Appeal filed by the petitioner met the same fate on 26-11-2011.

9. Article 164 of the Limitation Act provides limitation of thirty days for filing application seeking setting aside of the ex parte decree. Limitation has to be reckoned from the date of decree but where summon was not duly served, from the knowledge of the defendant. The service of petitioner/ defendant in the instant case was admittedly not effected and service through affixation at conspicuous place was also effected at a premature stage and as such the petitioner was not duly served. The limitation commenced only from the knowledge of the petitioner and not from the decree, where not personally served. The Courts below have not adhered to this legal aspect of the case and opted to pass the orders in routine manner which are not warranted by law.

10. Even otherwise, the Courts are under obligation to consider and evaluate the record available on file including the evidence adduced by the plaintiff in support of his claim. Mere absence of the petitioner, who has been proceeded ex parte, would not relax the Court to probe into the matter and decide the same on merits in accordance with law. Operative part of the findings of the learned Civil Judge is reproduced below:-- "Through this order I intend to dispose of an application for setting aside ex parte decree dated 16-6-2008. Perusal of the file reveals that an ex parte decree was passed against petitioner on 16-6-2008 wherein he was served through affixation service while he submitted the instant application on 11-12-2010, after two years and five months which is hopelessly time barred under section 164 of Limitation Act. Moreover, on the record, there is no application filed by the petitioner viz condonation of delay nor petitioner explained any plausible reason qua his absence. Thus, while considering to this view of picture, the application is hereby rejected being devoid of merits with no order as to cost."

11. The learned Civil Judge has not assessed and scanned the evidence produced by the respondents in the light of pleadings. Nothing has been discussed nor probed in as required under Order XX, C.P.C., to pass a decree in a civil suit and as such has passed the decree totally in disregard to Order XX, C.P.C. which is not maintainable under the law.

12. So far as the application for setting aside ex parte decree is concerned, both the Courts below have dismissed the same on the score of limitation and that too without affording an opportunity with special reference to the service of summon and the procedure adopted by the learned trial Court during the course of service of summons.

13. Before parting with the judgment, it is observed that in cases where the defendant is placed ex parte, the Courts shall, after hearing the case, pronounce the judgment in accordance with law with regard to the issue involved in the case with all the clarity in findings, supported by reasons upon any one or more issues, sufficient for the decision of case but in no eventuality, shall pass an order in an omnibus manner by holding that as there is nothing in rebuttal due to the reason that the defendant has been placed ex parte and as such decree is granted, which is alien to law and shall be discouraged.

14. For the reasons mentioned above, the instant revision petition is accepted on payment of cost of Rs.10,000, the impugned judgments/orders are set aside and on acceptance of application of the petitioner for setting aside the ex parte decree, the ex parte decree is set aside and the case is remanded to the trial Court for decision afresh after affording opportunity to the parties. The case be treated as target case and be decided within shortest possible time, but not latter than two months positively. The parties are directed to appear before learned Civil Judge-VI, D.I. Khan on 4-9-2013. JJK/884/P Case remanded.