1. MUHAMMAD AKRAM, J.-The house in dispute bearing No. 584-F-6-1, Islamabad, belonged to the petitioner. Admittedly on the 10th of December, 1969 he executed a registered deed of sale of the house for Rs. 60,000 Ein favour of Dr. Shukri Gulab Din, a resident of Libya, who is being sued in this Court through Muhammad Aslam, respondent No. 3 as his special attorney.
2. However, on the 28th of June 1973, the petitioner brought a suit against the said vendee for a declaration to the effect that the impugned sale was without consideration, void and had no legal effect on his rights. The summons sent by the Court to the defendant at his given address in Rawalpindi was returned with the remarks that he was not available. On this substituted service against the defendant was effected by publication in the newspaper and the learned Civil Judge, Rawalpindi eventually passed an ex pane decree against him on the 23rd of October 1974.
3. Afterwards on the 16th of June 1975, respondent No. 3 as the special attorney of said Dr. Chukri Gulab Din filed an application for and on his behalf in Court for setting aside of the ex parse decree.
4. It was alleged; inter alia, in the application that he (1)r. Shukri Gulab Din was residing in Libya to the knowledge of the petitioner but that the suit was deliberately filed against him on his incorrect address at Rawalpindi and the substituted service was thus procured against him by fraudulent suppression of his correct address in Libya by deceitful means and fraud practiced on the Court. It was further alleged in the petition that the defendant had all along remained ignorant of the proceedings and the ex parte decree thus procured against him and that he learnt about it for the first time only on his arrival in Pakistan a few days back.
5. It appears that the Trial Court was satisfied that Dr. Shukri Gulab Din defendant was abroad and had not been duly served when the ex parte decree had been passed against him. In this connection the trial Court in its order dated 21st of June 1976 observed that "the fact that the petitioner was out of the country at the time of passing of ex parte decree could not be challenged by the respondent decree holder. It is pertinent to note that in the original suit the registered letter Exh. P. 6 also bears the endorsement that the addressee was. Not available at the said address." As observed by the High Court the matter was also examined in revision and the learned Additional District Judge came to the conclusion that "after giving my anxious consideration to the facts of this case I feel that there is nothing wrong with the impugned order as the ex parte decree was passed when the respondent defendant was out of country and his incorrect address was given in the plaint." In this connection the High Court while refusing to interfere in writ jurisdiction observed :- "The question of limitation as well as that of invalidity of power of attorney were raised by the petitioner but it appears that the learned trial Court and the learned revisional Court did not give any weight to these because of non-service on Dr. Shukri Gulab Din and his being outside the country, and the fact not having been brought to the notice of the learned trial Court. It seems the ex parte decree was taken to have been obtained by fraud and as such void. In all the circumstances of the case, when properly constituted Courts have exercised jurisdiction in re- calling an ex parse decree and directing the controversy to proceed on merits, it is not quite justifiable to exercise constitutional jurisdiction to declare an interlocu--tory order to be without lawful authority, stifling a decision on merits."
6. It is evident that the petitioner had filed the suit against the defendant at his incorrect address as a local resident of Rawalpindi. The summons issued to him at that address was returned with the report that the defendant was not available. Indeed in the writ petition filed by the petitioner in the High Court it was admitted that the notices were issued to Dr. Shukri Gulab Din defendant "at his last known address." This in itself connotes that the plaintiff had failed to sue the defendant at his the then correct address. In fact it was further alleged by the petitioner for the first time in his writ petition that he had learnt on good authority that Dr. Shukri Gulab Din fell seriously ill while he was staying in Alexandaria, Egypt, and was, admitted in some hospital where he underwent a major operation but could not recover and died in June 1975. However, to his great dismay Dr. Shukri Gulab Din seems to have appeared in the course of the proceedings in the writ petition before the High Court and filed his written statement along with his own sworn affidavit supported by his passport and other relevant documents to rebut this contention. From the facts and circumstances of the case and the affidavit of the Special Attorney of Dr. Shukri Gulab Din the two Courts below had no difficulty in arriving a the conclusion that the petitioner had filed the suit against the defendant deliberately at his incorrect address. The summons issued to him was returned with the report that the defendant was not available at his given address. In spite of this the petitioner did not take any constructive step to have the defendant served personally at his correct address.
7. Instead of this he adopted a contrivance by procuring his substituted service by proclamation in the newspaper seemingly under rule 20 of Order V of the Code of Civil Procedure and the trial Court effected substituted service on him almost mechanically without proper application of its mind to the requirement of the law on the subject. This rule lays down that `where 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 shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personal worked for gain, or in such other manner as the Court thinks fit. In the instant case the petitioner appears to have obtained the order from the Court for effecting the substituted service on the defendant by wilful suppression of his correct address and thus played fraud on the Court itself in procuring that order from it. This was sufficient reason for the Court to have annulled its own proceedings.
8. Before us a great emphasis was laid to contend that in reply to the application of the respondent for setting aside of the ex parte decree, he had raised two preliminary objections going to the root of the case, namely, that the application itself was barred by time and that the Special Power of Attorney held by respondent No. 3 was a forgery and the fore the very petition filed through him was unauthorised and incompetent. Before us the grievance of the petitioner is that no head was paid to these objections and the trial Court proceeded to hear the arguments without even framing any issues and recording any evidence. But in this connection it does not appear that any such objection was raised on behalf of the petitioner before the trial Court at the time of the hearing and he is therefore, deemed to have waived any such right in proceeding to the arguments in the case on the basis of the record already before the trial Court. Be that as it may, we are of the considered view that substantial justice has been done between the parties in this case in that the suit has been restored for its disposal on the merits in accordance with law.
9. For the foregoing reasons there is no force in this petition which is hereby dismissed.