1993 PLP 889 (MLD)

set aside a was not duly served decree passed when the applicant has ex parte knowledge of the decree Article 181: Application for Three years. When the right to apply which no accrues. period of Limi tation is provided else where in this Schedule or by section 48 of Code of Civil Procedure, 1908.

12. A perusal of the aforementioned provisions of the Code of Civil Procedure clearly shows that summon is ordinarily to be served on the defendant personally. It can also be served through a male member of the family, if the said member is residing with the defendant and the defendant cannot be found nor is there any agent empowered to accept service on his behalf. It is further established as per aforementioned rules that in case where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, an acknowledgment in writing is to be obtained on the original summons. While proceeding under rule 17, the Process-Server is bound to indicate in his report that he has affixed a copy of the summons on the conspicuous part of the house where the defendant resides, the circumstances under which he has done it and the name B and the address of the persons who identified the house in whose presence the copy was so affixed alongwith time. As per rule 19, when a summons is returned under rule 17, the Court is to examine the serving officer on oath touching his proceeding and after holding a further inquiry, if necessary, is to pass an order as to whether summons has been duly served or is to direct fresh service. While proceeding under rule 20 before passing of an order of substituted service, the Court is bound to record his satisfaction to the effect that there is a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service and thereafter the Court is to order the service of summons through affixture in terms of rule

20. As per Order 9, rule 6 in case the defendant does not appear on the date fixed in the suit, in spite of summons having been duly served upon him, he can be proceeded against ex parte and even an ex parte decree can be passed against him. But if it is proved that summons was not duly served, a direction is to be issued to issue a second summons for service of the defendant. As per provisions of Order 41, rule 33, C.P.C., the Appellate or Revisional Court has the jurisdiction to pass an order or a decree as the case may require in spite of the fact that any of the parties to the suit has not challenged the impugned order or the decree.

13. As per Article 164 of the Limitation Act, the period of limitation for filing of an application for setting aside of ex parte decree is thirty clays in cases where the summons is duly served w.e:f. the date of decree and in cases where the summons is not duly served w.e.f. the date from the acquisition of the knowledge of the decree. The word "summons" used in Article 164 of the Limitation Act is quite conspicuous. It means summons for first appearance in the suit and it has different connotation vis-a-vis, its form and object than the' notice issued to the defendant during the pendency of the suit for appearance, adjourned or postponed dates and period of limitation to challenge ex parte decrees passed in such like cases, therefore, is governed by the provisions of section 181 of the Limitation Act which is a residually Article and which provides three years limitation with effect from the date of accrual of cause of action which shall be the passing of the date of ex parte decree and not by Acticle 164 of the Act.

14. In the case in hand, after the suit was restored, learned trial Court directed the issuance of notices to the defendant for 12-5-1980. The process server made a report on the notice that the petitioner has refused to accept service. This report does not contain the names and signatures of the persons who identified the house wherein the petitioner resided and refused to accept service. It is rather mentioned in the report that nobody is ready to affix signature as a witness. The trial Court on the basis of this report which is verified on oath by the process server instead of directing the issuance of fresh summons to the defendant for effecting personal service upon him, without recording the statement of the process-server and without holding any inquiry, directed service of the petitioner through citation instead of affixture on the residential house of the petitioner. The citation has also been made in daily `Tohfa' which is seldom heard of and appears to be a local newspaper. Although in cases of verified reports of refusal of acceptance of service which are duly made strictly in accordance with provisions of Order 5, rule 17, the Court may not hold an inquiry and straightaway hold that either the service is sufficient or another mode of service should be adopted but in those cases where the report is not attested by the witnesses who allegedly identified the residential place of the defendant and the act of his refusal to accept service by the witnesses it is a must that the trial Court should have been more conscious and careful and should at least have recorded the statement of the Process Server on oath and after holding a proper inquiry should have decided as to in what manner the service of the defendant should be effected particularly when it was a contested suit and had been restored ex parte and the dispute related to the title of the property which was claimed to have been purchased by the petitioner for consideration. Under circumstances of this case, therefore, it was not a fit case where the trial Court could straightaway, on the basis of the report submitted by the Process-Server which has been referred to above could have directed the service of the defendant through citation in a newspaper which is not even a daily of a national repute. It stands established, therefore, that the trial Court exercised his jurisdiction illegally and with a material irregularity in directing the service of the defendant through citation. It is an established principle of law that law favours adjudication on merits and technical knock-outs are to be discouraged. In view of the circumstances of the case particularly when provisions of Order 5, rule 10-A were also not complied with, trial Court could not have resorted to substituted service on the basis of a sketchy, erroneous and illegal report submitted by the Process Server. In a similar circumstance, service of the defendant was not held to be sufficient in case of Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lahore 1138 wherein it has been held as under: "Coming to the merits of the case, the point to be seen is whether there was sufficient ground or sufficient cause for the tenant for non appearance on the 23rd of December 1965, when ex parte proceedings were ordered against him and as to whether he had been properly served for that date. In this respect the summons which was allegedly served by the process-server on the tenant contained the. following endorsement: - Below this endorsement is appended an affidavit of the process-server which is to be following effect: - The process-server in this case seems to have acted under Order V, rules 16, 17 and 18 of the Civil Procedure Code. The said rules read as follows: "(16) Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. (17) Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereof or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. (18) The serving officer shall, in all cases in which the summons have been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and address of the person (if any) identifying the person. served and witnessing the delivery or tender of the summons." A persual of the aforesaid provisions alongwith the endorsement of the process-server and his affidavit would reveal that the service effected by the Process Server suffered from the following defects. Firstly, according to Order V, rule 17, the process-server was supposed to affix a copy of the summons on the outer-door or some other conspicuous part of the house in which the tenant resided. The report/ endorsement of the process-server shows that he did not affix a copy of the summons, but according to his own showing merely a copy of the plaint (i.e. ejectment application). Secondly, the report endorsement also does not contain the names or attestation of the two witnesses (D.H.W. 2 and D.H.W/3), who later 'on turned up to support the process-server by saying that they were passing by that place when they saw the process-server offering the summons to the tenant and that the tenant refused to receive the same. Thirdly, the said witnesses have nowhere deposed that the process-server in their presence affixed the copy of the summons on any house, if so, which that house was and who identified the same. Fourthly, accordingly to rule 18; the process-server was required to state on the original summons the time when the summons was served. Strangely enough, the report of the process-server did not contain any such time and from that point of view also the alleged service did not company with the requisites laid down by the law on the subject. Fifthly, accordingly to rule 4 of the High Court Rules and Orders Volume IV, Chapter VII, Part B, read with rule 19 of the Order V of the C.P.C., the return of the summons was to be accompanied by an affidavit. The pro forma of that affidavit is prescribed in Appendix I attached to the said rule and is to the following effect: -- "The affidavit of

son of

I make oath and say as follows:-- affirm (1) I am proccess-server of this Court. (2) On the day of t9 , I received a summons /notice issued by the Court of in suit No. of 19 , in the said Court, dated day of 19 for service on - (3) The said was at the time personally known to me and I served the said summons/notice on him/her on the day of 19 at about o'clock on the noon at by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice. (a) (b) (a) Here state whether the person served signed or refused to sign the process and in whose presence. (b) Signature of the process-server, or (3) The 'said

not being personally known to me accompanied me to and pointed out to me a person whom he stated to be the said and I served the said summons/notice on him/her on the day of 19 at about . o'clock in the noon at by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice. (a) (b) (a) Here state whether the person served signed or refused to sign the process.and in whose presence. (b) Signature of process-server, (3) The said and his house in which he ordinarily resides being personally known to me/pointed out to me by -I went to said house in and there on the day of 19 ; at o'clock in the fore/after noon I did not find the said- I enquired from (a) neighbours. I was told that had gone to and would not be back till - Signature of the process-server or I substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service. Sworn/Affirmed by the said- before me this- day of 19 - - Empowered under section 139 of the C.P.C. to administer the oath to deponents. A perusal of the report return/endorsement and the affidavit filed by the process-server would, however, shows that it did not in the least correspond with the requisite pro forma nor it fulfilled the other requirements. Sixthly, apart from these legal defects in the service, allegedly, effected by the process-server, there is a further inherent improbability in the version of the process-server. It is the case of the landlady that the service was effected at about 6 or 6.30 p.m. in the month of December. This will be a pretty dark time. and I am not inclined to believe that the process-server during those winter days would have taken the trouble of going to Model Town for effecting the service at that awkward hour. Then there is nothing to indicate as to whether there was light at the place where the process-server alleged .to have delivered the summons to the tenant; and the tenant is alleged to have read the same. The case of the landlord is that the tenant came out of his house when the process was offered to him. The house is a double-storeyed building and the tenant is alleged to reside in the first floor. At what place the tenant came and where the process was offered to him and where he read the same is all a ystery. Seventhly, the tenant led evidence that on 20-12-1965 he was out of Lahore and the story of affecting any service on him was a concoction. On this point, one very important witness produced by him was P.W.3 Mian Sultan Ahmad who proved that on that day there was a marriage function of his daughter on which the tenant was also invited as per the invitation card ExhA/1. He stated that on that date, the tenant did not turn up and on his asking next day the tenant told him that on the day of marriage he was out of Lahore in Gujranwala. It is significant to point out that this witness was not cross-examined by the counsel for the land lady which means that the statement of this witness was not being taken exception to and was rather accepted. It is laid down in Karnidan Sarda and another v. Sailaja Kanta Mitra and another (1), per Wort, J. at page 685 that failure to cross-examine a witness means that his statement is being accepted. Eightly the tenant produced judicial proof from the record of the Court of the A.D.C. Gujranwala, by producing a copy of the proceedings, dated 20-12-1965 in a case in which the tenant appeared before him. These proceedings were proved by Mr. Muhammad Ibrahim (P.W.1) who brought the original file of the relevant case. The Rent Controller did not attach proper importance to this judicial record and at the same time did not take the inherent defect in the service report endorsement of the process server and nor did he attach full weight to the above aspect of the tenant's evidence and nor noticed the salient features of the statements of his witnesses. The Rent Controller appears to have dealt with the matter in a most cursoy and haphazard manner. He did not keep in view the past history of the case which had been given by the landlady herself in her ejectment application as to how many times she had sued the tenant and how the tenant always appeared and defended the litigation. The learned Rent Controller did not consider as to whether in that context and in view of the past history of the case, the tenant would have allowed the case to go ex parte against him or would have dared to refuse process of the Court or would have afforded to suffer an order of ejectment in default like the present one. The Rent Controller thought that since the tenant had stated that from Gujranwala he went to Wazirabad by Shaheen Express and since the train Shaheen Express did not operate between these two stations, therefore, the whole of his statement, version or case should be condemned. The Rent Controller did not give allowance for the fact that this might be a case of lack of exactness in knowing the names of various trains nor did he get it clarified from the tenant as to whether by Shaheen Express he really meant a train or a bus; because it is a common knowledge that these days buses also carry various popular names even after the name of the trains. Anyhow, against this slight lacuna there was other overwhelming proof by the tenant which was sufficient to convince that the service on him was never effected and he never refused the same and that he was not in Lahore on the relevant day. The witnesses produced by the landlady are just chance witnesses whose names do not appear in the report/endorsement of the process-server. The husband of the landlady, who is a resident of Model Town seems to have put up those witnesses. Though in the report of the process-server no time was given nor in the affidavit there was any indication to that effect in Court they all tried to show that it was 6 or 6.30 P.m. From this I get a clue that the story that the tenant was in Gujranwala on that day, appears to be true and correct and was impliedly admitted to be correct by the landlady and that is why that she introduced 6 or 6.30 p.m. time so that she may take up the plea of the possibility of the tenant having come back by that time. For the various reasons given above, I am inclined to accept the version and the evidence of the tenant and would reject the evidence of the landlady as being unreliable.

10. The outcome of the above discussion is that the order of the Rent Controller dated the 25th of April 1966, refusing to set aside the ex parte proceedings is set aside and he is directed to decide the main case on merit$ in accordance with law. The appellant will get the costs of his appeal."

15. In case of Siraj Din v. Mst. Iqbal Begum PLD 1968 Lahore 639 at page 648, it has been held as under: "We have examined the above-mentioned cases and though we have not been able to find any observation in them to the effect that the rule is penal in nature, still the opinion seems to be uniform that the provisions of this rule should be strictly complied with. We have ourselves studied the provision of Order V, rule 17, and we are prepared to opine that there is some penal element in them. As for example when it is stated that if the defendant refuses to sign the acknowledgment or where the defendant cannot be found after using all due and reasonable diligence their the process-server may effect service by affixture

this is a sort of civil punitive action. If the stage in any given case reaches the pitch of an intentional prevention of service, then that may bring the defendant within the ambit of section 173, P.P.C. as well. See Bhudhua v. Emperor (3). We, therefore, find considerable force in the submissions of the learned counsel and are prepared to hold that the provision of effecting service by affixture (as contained in Order V, rule 17, C.P.C.) is of a highly technical and penal in nature and should be very strictly construed and applied.".... At pages 661 to 662 it is further held as under ...0 "One of the meanings as given above is to discover the whereabouts of something. It is in that sense that this word is used in Order 5, rule 17, and not in the sense of "meeting" the defendant. Once the whereabouts of a person have been known and he is located and discovered to be present in a particular place, then he can be said to have been found out and in this context it cannot be said that the process-server cannot find him. The difficulty which the process-server may later on feel, might be in physically contacting him, which is a matter different from finding or not finding a person. In the instant case, the reports of the process-server suggest that he located both the places of residence as well as the place of business of the appellant. On the first occasion on the 16th of March 1965, when the process server went only to the place of business of the appellant he learnt from the Munshi that the appellant was temporarily absent and had gone to the bazar. He allegedly waited for about one hour and then came back. It is well-settled that a person cannot be said to -be "not found" merely be reason of his being temporarily absent to another place. Nihala and others v. Kazam Singh (1), Mathura Singh v. Sheo Mohan Parsad (2), Mathu v. Sarup Singh (3), Subramania Pillai v. Subramania Ayyar (4), Vellayappa Chetty v. Veerappa Chetty and another (5), Chintanman Pawar v. Pannalal and another (6), Gopiram Agarwalla v. Ist Additional Income Tax Officer and others (7), Tripura Modern Bank Ltd. v. Bansen & Co. (8), Kung Behari Lal v. Sarju Prasad and another (9), Pundit Ram Harachk v. Babu Sarju Prasad and others (10), Mohan Lal Kojriwal v. Sunder Lai Nand Lai Saraf and another (11) and Dina Nath Pati and others v. Upendra Nandan Das Mahapatra and others (12). From the first report of the process-server a finding of "cannot be found" could therefore, be recorded against the appellant. On the second occasion on the 23rd of March 1965, the process-server again went to the shop of the appellant where he learnt that the appellant had gone to his house. He then went to the house and allegedly learnt from the children that the appellant was in the upper storey. He alleges to have called the appellant but the later did not come out and rather concealed himself. Here again the appellant had been found out and no question of "cannot be found" arises in this context. Assuming, however, without conceding that at that time the appellant was still not found even then it was there where the stage arose to see as to whether "after using all due and reasonable diligence" the process-server could not have contacted or found the appellant later on. We are of the opinion that with little more reasonable diligence the process-server could have contacted the appellant. As for example the date in the case was the 25th of March 1965 and there was still a day to contact the appellant. He could have been contacted during the intervening period either at his shop or his house. From a solitary attempt of calling the appellant from his house, the sphere of "all due and reasonable diligence" was not exhausted and there was scope still to utilise a little more prudence as it was not a case of total impossibility in having access to the appellant. On the admitted facts of the case, therefore, no case under Order V, rule 17 was made out and the order of proceeding ex proceeding ex parte against the appellant was clearly unwarranted. It may here be pointed out that all the authorities below, have treated it as a case of evasion of service and not of the kind of "the defendant cannot be found". If this was a case of evasion of service then as analysed earlier, it more appropriately fell under rule 20 and rule 17 could not have been invoked."

16. Resultant, I hold that the petitioner was not served lawfully in this case and as such could not have been proceeded against ex parte nor an ex parte decree could have been passed against him. The decree passed against him, therefore, being nullity in the eyes of law could have been challenged by the petitioner on acquiring knowledge thereof. It stands established that on coming to know the passing of an ex parte decree against, the petitioner filed an application seeking setting aside the decree and also appended application seeking condonation of delay therewith. Consequently, the findings recorded by the two Courts below to the effect that the petitioner has failed to show a sufficient cause for his non-appearance on the data of hearing on which he was proceeded against ex parte and an ex parte decree was passed against him and that he was properly served are illegal and, hence, the same are set aside. Findings of the trial Court on the issue of limitation are also not maintainable. As mentioned earlier, this was not a case of service of the summons for first appearance in the suit. Trial had already commenced. The suit was being contested. It was dismissed for want of instructions/non prosecution. It was restored wit 1i the result that stage of the suit stood revived as being evidence stage. The notice issued to the defendant in this case, therefore, shall be deemed to be a notice of appearance during the suit and, hence, in case of passing of an "x par to decree against hint due to his failure to appear on the date fixed in the said notice the period of limitation shall not be governed by Article 164 of Limitation Act but is governed by Article 181 of the f Act, according to which the period of limitation is three years, hence, the application being within a period of three years is within time and the two Courts below have erroneously held that the application is barred by time. Even from another angle even if the provisions of Article 164 are applied to the case, the application is within time from the date of knowledge inasmuch as it is case of the petitioner and it has been held that summons were not duly served upon the defendant, therefore, the period of limitation in this case could not start from the date of passing of the ex parte decree but from the date of acquisition of the knowledge by the petitioner: In similar circumstances in case, of M/s. Rehman Weaving Factory (Regd.),. Bahawalnagar v. Industrial Development Bank of Pakistan and M/s. Rehman Weaving Factory (Regd.), Bahawalnagar v. Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 at pages 37, 38 and 39, it has been held as under:

"One way of interpreting Article 164 as analysed in the foregoing discussion, which does neither offend against the language used therein, nor against any rule of interpretation, is to correlate it with the language used in Order IX, Rules 6 and 13, C.P.C. This is what to an extent, has been done in some of the rulings. The word "summons" used in this Column in Article 164 is held to be the same `summons' as used in first part of Rule 13 as also in Rule

6. Similary, the phrases an application by a defendant "for an order to set aside a decree passed ex parte" against him used in the first Column of Article 164 and "was not only served," used in its, third column, have been borrowed from and have direct connection with rule

13. The said rule has three facets: one, when the ex parte decree is directly under clause (a) of rule 6(1) of Order IX, then first part of Rule 13 would apply because both the provisions relate to first hearing after the initial service of summons." The phrase " summons duly served" used in Article 164 has also direct connection with `summons duly served' used in rule 6 and "summons (not) duly served" used in rule

13. Two, rule 13 is applicable also to the situation arising independently of Rule 6 when, under Rule 2 of Order XVII, the defendant absents himself on an adjourned hearing. In that case, it will not at all .be on account of non-service of "summons" for the first hearing as interpreted above, but for "any other sufficient cause", visualised in the second part of Rule 13; which would include non-service of notice for a subsequent adjourned hearing. Three, as discussed earlier, a distinction is apparent between the first and second part of the main rule 13 r the first relates to "summons" dealing only with the first hearing and the second to the other "causes" including those relatable to the adjourned hearing also. The multi-facet rule of rule 13 is not being visualised for the first time. In Muhammad Swaleh's case also this was the approach preceding the decision that it was not necessary in that case to decide the controversy about Article

164. The following observation is most meaningful in this behalf: " a reference to Order IX, rules 6 and 8 and Order XVII, rule 2 will show that the parties to a suit are penalised for their absence only on the date fixed for hearing or the date to which the hearing is adjourned. Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearings. As rule 1 of Order IX will show, this Order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, rule 2 provides that if a party fails to appear on "the day to which the hearing of the suit is adjourned" the Court may proceed to pass orders in accordance with Order IX. Order IX, rule 6 and Order XVII, rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned." It has been emphasised that rule 13 has dual role: one when it is applied directing in connection with ex parte decree passed under rule 6 of Order IX and the other, by reference, when the ex parte decree is under Order XVII, rule

2. Similar view was expressed by the Supreme Court of India in Sangram Singh v. Election Tribunal (1). When dealing with the adjourned hearing dealt with in Order XVII, it was held that Rule 2 thereof applies to the non-appearance on the day fixed for the adjourned hearing. "In that event, the Court is thrown back to Order IX with the additional power to made `such order as it thinks fit', when it goes back to Order IX it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same way as it did, or cotrid have done if one or the other parties had not appeared at the first hearing, that is to say the right to proceed ex parte is a, right which accrued from day to day, because at each adjourned hearing the Court is thrown back to Order IX, rule

6. It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it." If Order IX, rule 13 applies to ex parte decree passed under clause (a) of rule 6(1) thereof and also by reference to similar decree passed under Order XVII, Rule 2, and if the language used in Article 164 is relatable to rule 6(1)(a) and first part of Order IX, rule 13, which caters for situation arising out of rule 6(1)(a), i.e. when summons, was not duly served; then it would be logical to assume that Article 164 relates to the ex parte decree passed under Rule 6(1) (a) on the first hearing and not to an ex parte decree passed on the adjourned hearing under Order XVII, rule

2. If a notice which was required by natural justice or by law to be served op a defendant to afford him an opportunity for appearance on an adjourned hearing and it was not duly served on him, then his case would not be governed by Article 164, because it would not be a case of first hearing for which "summons" was to be issued. This interpretation of Article would also permit a judicious interactions of first and third column thereof, in that, it would govern only those applications which seek the setting aside of that ex parte decree which has been passed after the service (or non-service) of the "summons" issued for the first hearing visualised under Order IX, rule 6(1)(a). The word "summons" is not only the key to the interpretation of third column, but it will also govern the entire Article. When any cause is shown for non appearance at the first hearing whether non-service of "summons" or any other sufficient cause, e.g. an accident on the way, an act of God or act of State beyond human control, only Article 164 would apply of a country."

17. Similarly in Case of Syed Muhammad Anwar, Advocate v. Sh. Abdul Haq 1985 SCMR 1228 at pages 1230, 1231 and 1232 of the report, it has been geld as under:

"The rule 20 of Order V of the Civil Procedure Code lays down that when the Court is satisfied that there is reason to believe that "the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served" in the ordinary way", the Court may order that the substituted service may be effected on him in the manner as the Court thinks fit. In this context, the ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in rules 9 to 17 of Order V of the Code. Under these provisions the service could be affected on the defendant personally by registered post, through his authorised agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in rule 17 that where the serving officer after using all due and reasonable diligence, cannot find the defendant and there is no person on whom service can be made, the serving office shall affix a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is clearly borne out from the record that no resort to this ordinary way of service of the summons on the defendant, his agent (if any) or the male members of his family was at all made in "this case". In these circumstances, the learned Senior Civil Judge on the 4th of February. 1974 was not justified in forming the opinion that no service on the defendant could be affected in the ordinary way. In his order, dated 9-4-1978-, the learned Senior Civil Judge while setting aside the ex parte decree though on somewhat different consideration, was of the, un opinion that there was no reason to conclude that the "summons" could not be served on the defendant" in the ordinary way' and, therefore, the substituted service effected on him was not justified in the circumstances of the case. The learned High Court in reversing the order of the learned Senior Civil Judge, dated 9th April, 1978 does not seem to have adverted to the above aspects of the case and instead rested its finding on the proviso to rule 13, Order IX of the Civil Procedure Code. This proviso was added by the Law Reforms Ordinance, 1972 and lays down that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. But it cannot be inferred that under the force of this proviso even an irregular service of summons is to be treated as "due service" even for the purposes of the Limitation Act. Moreover, it appears that prima facie this proviso deals with the effect of a mere "irregularity" and not illegality in the service of the summons. Even otherwise, in the instant case, the learned Judge in chambers had, as discussed above, apparently arrived at the conclusion that vide Exh.P.3 the summons for the 11th of December, 1973 was sent to the defendant by registered post acknowledgment due by Sheikh Riaz-ul-Haq (R.W.3) and that he had, therefore, knowledge of the date of hearing of the suit. But evidently on 11th December, 1973 the learned Senior Civil Judge did not proceed ex parte against the defendant and instead decided to issue fresh summons to him in the ordinary way for the 2nd of February, 1974. There is nothing on the record to show that the defendant had any knowledge of the next date of hearing when the proceedings were actually ordered ex parte against him. In this view of the matter, no resort could be made to the said proviso for the date when the ex parte proceedings were actually taken against the defendant. As discussed above, it cannot be held that the appellant had been "duly served" with the summons in the suit and his application for setting aside the decree filed on 27th of April 1974 was, therefore, not time-barred."

18. Resultantly, findings of the Courts below on the issue of limitation are set aside and it is held that the application seeking setting aside of the ex parte decree is within time. Even otherwise it is a fit case for coadunation of delay, if any.

19. Objections raised b; the learned counsel for respondents to the maintainability of the revision petition are misconceived. It is an established proposition of law that it is substance of the pleadings which is to determine H the law under which they are to be treated to have .been lodged. Merely because litigant writes a particular provision of law under which he has filed the application, does not debar the Court frorna%lying the correct law. Reliance in this behalf is placed on cases of Malik Bakhsh v. Mst. Shamim PLD 1960 (W.P.) Lah. 770 and Province of West Pakistan through Secretary, Revenue Board, Government of West Pakistan-, Lahore and Mr. Muhammad Shaft Director, Excise and Tmation, West Pakistan, Lahore v. Murree Brewery Co. Ltd., Rawalpindi, through its Chairman, S.R. Jariwala PLD 1963 SC

605. Consequently both the Courts below have rightly held that the application filed by the petitioner although has been mentioned as having been filed under s ction 12(2), C.P.C,. in its title, in substance it is an application under Order 9, rule 13 and, hence, both the Courts below have rightly treated the application being one under Order 9,, Rule 13 of C.P.C. Before the lower Courts it has rather been the case of the respondent himself that the application being under Order 9, rule 13 is barred by time as the same has been filed after the period of 30 days. Perusal of the application clearly shows that this is an application under Order 9, rule 13, C.P.C. inasmuch the petitioner wants vacation of an ex parte decree and the element of fraud which has been alleged in the application beside the allegation of non-service relates to the procurement of I collusion and fraudulent report of refusal from the process-server. Consequently, this application is out and out an application under Order 9, rule 13, C.P.C. and as such it cannot be said that it is an application under section 12(2), C.P.C. The appeal, therefore, filed against the order of dismissal of the application did lie before the first Appellate Court and was rightly entertained and decided. No fault, therefore, can be found with the findings of the two Courts below that this is an application under Order 9, rule 13, C.P.C. and as the appeal was competent before the lowest appellate Court, the civil revision under the provision of section 115 is not barred as the same cannot be said to be a second revision petition hence, argument of the learned counsel on this score being misconceived is repelled. Argument of the learned counsel for the respondent to the effect that Muhammad Idrees respondent No.2 having not challenged the decree, the present civil revision is liable to be dismissed inasmuch as the decree has become final as against the petitioner as well is also misconceived and .is not based upon any lawful reasons. Under the provision of Order 41, rule 33, C.P.C., the Appellate or the Revisional Court has the jurisdiction to pass an order which could and should have been passed by the Court below even if a party to the lis has not come up in appeal/revision. In this case Muhammad Idrees is a party to the proceeding as respondent No.2 and, therefore, this Court is quite competent to pass an order which enures to his benefit as well even if he has not filed an appeal. Consequently, this objection of the learned counsel is also repelled.

20. Next argument of the learned counsel for the respondent that concurrent finding of fact of the two Courts below cannot be interfered with in exercise of revisional jurisdiction of this Court is also not tenable in law. The proposition being propounded by the learned counsel stands negated even by the judgment reported in the case of Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88, relied upon by the learned counsel himself wherein at pages 90 and 91 of the report it has been held as under: "Leave to appeal was granted, inter alia, to examine the question "whether the High Court could have - decided a revision under section 115, C.P.C. so as to reverse the judgment impugned in the revision, on recording/admission of fresh evidence in the High Court, in its revisional jurisdiction" with a view to determine the scope of the revisional jurisdiction. Learned counsel for the appellant has while agreeing that some evidence, might be admitted at the revisional stage in order to determine the jurisdictional facts, the revision not being in continuation of the suit like an appeal, additional evidence could not be recorded on the merits of the case so as to set aside the appellate and/or the original judgment. He, however, could not exclude exceptional cases, depending upon the facts and circumstances of each case however could not be excluded where, in order to see whether a lower Court had acted with material irregularity by virtue of which the case could fall under sub-clause (c) of section 115(1), C.P.C., a clarificatory statement might be recorded by the High Court or evidence material might be admitted in any other form. Learned counsel for the respondents, however, contended that additional evidence could be recorded by virtue of Order XVIII, rule 17 and if it is treated that the said provision is related to a suit and/or at the most an appeal, a Revisional Court could record additional evidence under section 151, C.P.C. as a part of its inherent jurisdiction. It is not necessary for us to go any further than what has been stated above because of a recent pronouncement of this Court in Kanwal Nain and others v. Pateh Khan and others (1). It was observed as follows:. "Clearly the decision of the learned Single Judge, impugned in this appeal, turns on the determination of a question of fact. As pointed out by this Court in Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139 revisional powers under section 115, Civil Procedure Code are primarily intended for correcting errors made by subordinate Courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisable, except in case where the decision is based on no evidence or inadmissible evidence or is so perverse that rave injustice would result there from."

21. In case of Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 it has been held that an illegal order is without a lawful authority as is clear from the ratio laid down at page 452 of the report as under:

"I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its Constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases ei Muhammad Hussain Munir PLD 1974 SC 139 and Zulfiqar Khan Awan 1974 SCMR 530 have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but no the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on the point of law can be. quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."

22. In the case in hand it is a title suit which was being hotly contested earlier to its dismissal due to want of instructions/non-prosecution. The same was restored on the basis of reports of the process-server ex parte and substituted illegal service on its basis. Subsequent to the restoration of the suit only one effort appears to have been made for effecting personal service upon the defendant and on the basis of a family and illegal report, substituted service was directed by the trial Court and on the basis of this illegal service, the petitioner was proceeded against ex parte and ex parte decree was passed against him. Immediately on coming to know of the decree, the petitioner filed an application seeking setting aside of the ex parte decree. This application has been rejected on erroneous consideration. Both on merits as well as on the question of limitation, learned Courts below have misread themselves while deciding the matter in issue involved in this case and have passed the ex pane decree-orders which are patently perverse, illegal, hence, are without lawful authority and have resulted in a grave miscarriage of justice. Resultantly, it is a fit case where this Court has the jurisdiction to interfere in -exercise of its revisional jurisdiction.

23. Resultantly, these civil revisions are accepted. Impugned ex parte decree and orders of dismissal of the application for setting aside of the ex parte decree are set aside and the cases are remanded to the learned trial Court for decision of the same on merits in accordance with law. Since it is an old matter, it shall be decided by the learned trial Court within a period of six months with effect from the date of the receipt a copy of this order. The parties are directed to appear before the learned trial Court on 22-2-1993. The parties are left to bear their own costs. AA./A-339/L Revisions accepted.