Petitioner/judgment debtor, through the filing of the present revision petition, has called in question order dated 15.3.2004, whereby the learned Additional District Judge dismissed his application, filed under Section 12(2) CPC.
2. Precisely stated the facts of the case are that the respondent filed the suit for recovery of Rs, 10,35,000/- against the petitioner,' before the learned District Judge, under the summary procedure provided under Order XXXVII CPC, on the basis of promissory notes. Requisite summons were issued to the petitioner on the address given in the plaint.' The application for the grant of leave to appear and defend the suit was filed on behalf of the petitioner, which was resisted by the respondent, however, when the said application was fixed for hearing neither the applicant nor his learned counsel entered appearance, therefore, he was proceeded ex-parte on 5.11.2002. The learned Court, after recording ex-parte evidence of the respondent, decreed respondent's suit for recovery, vide judgment and decree dated 15.1.2003. The application under. Order XXXVII, Rule 4 and Section 151 CPC was filed on behalf of the petitioner, on 30.4.2003, seeking setting aside of the aforenoted ex-parte decree. This application was dismissed for non-prosecution, however, upon an application filed under Order IX, Rule 9 CPC, the said application was restored on 18.9.2003. The learned trial Court, after hearing the parties, dismissed the said application on merits, vide order dated 24.11.2003. The petitioner, on 10.12.2003, filed the application under Section 12(2) CPC seeking setting aside of ex-parte judgment and decree dated 15.1.2003, which was resisted by the respondent and ultimately the learned Additional District Judge dismissed the same, vide impugned order dated 15.3.2004, hence the present revision petition.
3. Learned counsel for the petitioner has contended that the petitioner was not at all served in the suit and process server affixed the summons on the outer door, while there was no order from the learned trial Court permitting him to serve the summons through affixation. He has further submitted that the petitioner neither filed application for leave to defend the suit nor application under Order XXXVII, Rule 4 CPC nor under Order IX, Rule 9 CPC and those applications were signed by a fictitious person in connivance with the respondent. He has added that the petitioner did not engage any counsel, at any point of time. He has further added that in any case the application under Section 12(2) CPC was to be decided after recording evidence of the parties, but no such opportunity was afforded to the petitioner by the learned Additional District Judge. Conversely, the learned counsel for the respondent has submitted that the address upon Which the summons were affixed was correct address of the petitioner and that the process server, under the provision of Order V, Rule 17 CPC could affix summons at the outer door of a defendant and no permission from the learned Presiding Officer was required. He has relied upon Ayub. Khan and another vs. Fazal Haq and others (PLD 1976 SC 422). He has added that the learned trial Court was not bound to record evidence in this case and has rightly passed the impugned order. He has referred to Messrs Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation, Karachi 2002 SCM R 1761).
4. In view of the arguments of the learned counsel. I have examined the available record and find that after the institution of the suit the learned Court, seized of the matter, issued requisite summons under Order XXXVII CPC to the respondent upon the address provided by the :petitioner, however, he could not be served for the first time and the unserved summons were returned to the Court. Similar summons, subsequently issued, could not be personally served upon the respondent and the process server, after comingto the conclusion that the petitioner is avoiding service, affixed the summons on the outer door of the house. The said summons bear the witness of one Aman Ullah. The case of Ayub Khan and another (ibid), relied upon by the learned counsel for the respondent, is a complete answer to the first contention raised by the learned counsel, wherein it has, inter alia, been held that it is clear from the plain language of Order V, Rule 17 CPC that it empowers the serving officer to effect service by affixation .and it does not fetter discretion of serving officer to offer service by affixation if conditions prescribed in rule are satisfied. In view of the law declared, the first contention of the learned counsel for the petitioner is hereby repelled.
5. It is evident from the available record, as noted above that after affixation of the summons on 30.5.2002, the application seeking leave to appear and defend the suit was filed on 10.6.2002, which is signed by Nisar Ahmed and his learned counsel namely Bashir Malik, Advocate. Subsequently, filed applications under Order )(XXVII, Rule 4 CPC and under Order IX, Rule 9 CPC also bear the signatures of Nisar Ahmed and his aforesaid learned counsel.-No material was placed on record to even prima facie demonstrate that the petitioner did not sign all those applications and the same were signed by a fictitious person. It appears from the record, as rightly held by the learned Additional District Judge, that all the applications were filed by the petitioner to prolong the proceedings on one pretext or the other. If the respondent had intended to procure the exparte judgment and decree, he was successful in getting. the same as far back as on 5.11.2002 and there was no occasion to file subsequent applications in succession. It appears that the petitioner left no stone unturned to get the ex-parte decree set aside and after remaining unsuccessful and having not challenged the said orders before the higher forum, he choose to file the application under Section 12(2) CPC, which was rightly dismissed by the learned trial Court.
6. Now coming to the contention regarding recording of evidence. It is settled law by now that Courts are not bound to frame issues in every case when an application under Section 12(2) CPC is brought before the Courts, however, in an appropriate cases, the Courts are allowed to frame issues. If any case law is needed, judgments reported as Ghulam Muhammad vs. M. Ahmad Khan and 6 others (1993 SCM R 662), Mst. Ume Kalsoom vs. Zahid Bashir through legal heirs and another (1999 SCM R 1696), Abdul Razzaq vs. Muhammad Islam and 3 others (1999 SCM R 1714), Mrs. Amina Bibi through General Attorney vs. Nasrullah and others (2000 SCM R 296), Nazir 'Ahmed vs. Muhammad Sharif and others (2001 SCM R 46) and Messrs Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation, Karachi (2002- SCMR 1761) can be referred.
In via of the aforesaid law declared, the contention raised by the learned counsel for the petitioner, while relying upon a single Bench judgment of this Court, is devoid of any force.
7. As regards other judgments relied upon by the learned counsel for the petitioner, those, under the present circumstances and in view of the law declared, are of no help to the petitioner.
8. In the above perspective. I have examined the impugned order and find that the same does not suffer from any legal infirmity, thus; I see no reasons to interfere in the impugned order therefore, the same is maintained.
9. Upshot of the above discussion is that the present revision petition is devoid of merits, hence the same stands dismissed leaving the parties to bear their own costs.