1998 PLP 147 (MLD)

Taki Ahmad Khan for Petitioner. Malik Abdul Wahid for Respondents. Date of hearing: 12th February, 1997. On/about 10-1-1979, the petitioner filed a suit for specific performance of an agreement to sell allegedly executed in petitioner's favour by Muhammad Shaft, the predecessor of respondents herein, for a sum of Rs.14,000, which is claimed to have been paid at the time of agreement. The land is not described in the agreement. However, it is stated that total land of Muhammad Shafi situated in Village Nonar, Tehsil Narowal is the subject-matter of agreement. It transpires that after institution of the suit, prescribed summons were issued to the original defendant. According to the learned counsel for the petitioner, since the original defendant did not appear in spite of service, ex parte orders were passed against him on 8-2-1979. This order was, however, reviewed on 31-3-1979 and fresh summons were issued for service. It is claimed that he was again served on 2-5-1979 and on his failure to enter appearance, substituted service through drum beating was directed. It is, claimed that drum beating did take place on 5-5-1979 for his appearance on 5-6-1979. The defendant again failed to appear. Finally on a fresh drum beating, the defendant was proceeded ex parte on 22-7-1979. Ex parte evidence was thereafter, recorded and suit decreed in favour of the petitioner on 12-9-1979. Defendant on 17-5-1980, filed an application for setting aside the ex parte decree on the ground that neither the defendant was served at any stage nor any drum beating took place in the village and that all the proceedings showing the defendant to have been served were false and fictitious. He asserted that it was on 15-5-1980 that he learnt in the Katchery on Narowal that the petitioner was trying to sell this land, as 16th of May was holiday, the application was filed on 17-5-1980 without any delay. This application was contested which led to framing of issues and recording of evidence. It seems that in the meanwhile original defendant Muhammad Shafi died and thereafter the present respondents (his children) took up the fight. On 18-1-1988 the Trial Court dismissed the application. On appeal, however, this order was set aside on 4-12-1995. The Appellate Court came to the conclusion that it was not proved beyond doubt that the original defendant has ever been served. It, therefore, allowed the application, set aside the ex parte decree and directed the Trial Court to proceed with the suit in accordance with law. The plaintiff/decree-holder, aggrieved against the appellate order, has filed this revision.

2. In support, learned counsel for the petitioner has contended that the Appellate Court has not at all adverted to the reasons recorded by the Trial Court in support of its order and as, such the Appellate Court has violated the principles of law laid down in Madan Gopal and others v. Maran Bepari arid others (PLD 1969 SC 617) as reaffirmed in Mir Haji Khan and others v. Mir Ejaz Ali and others (PLD 1981 SC 302). Learned counsel has reiterated the view taken by the Trial Court and has further asserted that in fact the original defendant was shown to have been twice personally served and it was thereafter, that substituted service was directed on his failure to enter appearance. On the other hand, learned counsel appearing for the pres9t respondents has supported the appellate order and has inter alia cited Syed Muhammad Anwar v. Sh. Abdul Haq (1985 SCMR 1228) for the proposition that it must be shown beyond doubt that the elements warranting application of Order V, rules 17 and 20, C.P.C. exist.

3. With the assistance of the learned counsel, I have reviewed the evidence placed on record. The service original as well as substituted is claimed to have been witnessed in this case by Ashraf Ali and Muhammad Younas, private persons, who were admitted by Muhammad Bashir, Process Server (R.W.1), to be related to the petitioner. Petitioner himself at the time of agreement was Head Master of a school while at the time of recording of evidence, was an Assistant Education Officer. The drum/peepa beating is claimed to have been conducted by Abdul Ghafoor (R.W. 4), who was a Chaukidar in one of the schools under the petitioner. Muhammad Ibrahim and Umar Din, both lumberdars of Village Looter appeared as AW. 1 and AW.2 and claimed that in this case no drum beating took place. According to these witnesses normally process in the village either direct or substituted is executed after associating lumberdars. It is interesting to note that in the cross-examination of these two witnesses the factum of their being lumberdars and as such being generally associated with service etc. has not been questioned.

4. In reversing the order of the Trial Court the Appellate Court has refused to accept the statement of Abdul Ghafoor (R.W. 4) on the ground that he was a Chaukidar of another village and that the school in which he worked was under the control of the petitioner. No valid exception can be taken to this reasoning. In fact by ignoring this aspect of the case, the Trial Court committed a serious error. The Trial Court further disregarded the fact that the agreement sought to be enforced did not describe the land and further showed that all the consideration price had been paid. This aspect, had it been attended, would have compelled the Trial Court to lean in favour of adjudication on merits. The submission of the learned counsel that earlier at two times the original defendant was personally served and, therefore, the substituted service was correctly ordered, has no relevance in the circumstances of this case. The direct service itself was not acted upon by the Trial Court and in its wisdom it directed substituted service. The ex parte decree is based on the ex parte order, dated 22-7-1979 and the validity of the decree will depend upon the validity of this order and not on the earlier alleged direct service. Since I am in agreement with the view of the Appellate Court that the alleged Drum/peepa beating conducted by Abdul Ghafoor (R.W. 4) cannot be believed, I am not persuaded to hold that the petitioner has been able to make out a case for interference in exercise of revisional jurisdiction of this Court.

5. The claim of the defendant that he learnt of the ex parte decree on 15-5-1980 and immediately thereafter, on 17-5-1950 filed the application has not been controverted by the petitioner. The application for setting aside the ex parte a decree having been filed within 30 days from the date of knowledge, is well within time.

6. For the reasons recorded above, this revision has no merit and is dismissed with costs. A.A./M.465/L Revision dismissed.