1. ' This application by way of a revision is made by the applicant against an order dated 31st March, 1977 of the learned Sub-Judge, Rawalakot whereby an ex parte decree obtained by him against Suleman Khan father of respondents Nos. 1 to 3 and husband of Booji respondent was set aside.
2. ' It was in the month of February, 1958 that a declaratory suit was instituted by the plaintiff- applicant in the Court of Sub-Judge, Rawalakot on basis of a sale-deed of the land decreed allegedly sold by Suleman Khan. On institution of the suit the summonses were issued to Suleman defendant who could not be found at his residence as he was a deserter from Army and as such, was keeping himself away from home so as to avoid his arrest. 'rite Process Server who went with summons to effect the service of Suleman, made a report to this effect further telling that a copy of summonses was also affixed on the door of the house of the defendant. To that effect, an affidavit was also made by the Process Server on the summons returned to the Court. A copy of the summons was affixed in presence of Mohammad Amir Khan. The affidavit made by the Process Server was duly attested by the Sub-Judge trying the suit. On this, the Sub-Judge also got effected the service by an advertisement in a newspaper named `Jaddid Kashmir' a Weekly. Thus the substituted service was also effected after which ex parte proceedings were taken by the Court against Suleman Khan and an ex parte decree was passed thereof.
3. ' The original file of the trial Court, though partly burnt in an arson of 1959, yet its part containing the record of the case was luckily saved including the sale-deed executed in favour of the applicant during the year 1948. By this sale-deed, Suleman Khan, according to the plaintiff, sold the land in question to him for consideration. The ex parte decree was passed by the trial Court on the 18th of July, 1958. Against this ex parte decree the legal representatives of Suleman filed an application for cancellation of the ex parte decree in the office of the Court of Sub-Judge on 6th December, 1967 in absence of the Sub-Judge but nobody has signed it to show the presentation of this application before the Court till it came before the Sub-Judge on 14th December, 1967. It was alleged in the application that the applicants came to know of the decree on 9th November, 1967 when a copy of the same was obtained by Mir Alain, the next friend of respondents Nos. 1 to 3. The sons and daughter of Suleman Khan deceased through their uncle Mir Alam being their next friend alongwith the widow of Suleman Khan brought an application for cancellation of the ex parte decree in the Court of Sub-Judge. In the application it was averred that Suleman Khan died in March, 1958 at Rawalpindi whereas the decree was obtained by the plaintiff in July, 1958 when the Judgment- debtor was dead. As it was passed against a dead person, it was a nullity but the mode of service of the summons issued adopted by the Court was not condemned by the applicants therein. Mir Alam, the next friend of the minors examined himself as a witness and further adduced evidence of two persons, namely, Mohammad Yusuf and Gulab who told about the place and time of death of Suleman Khan. According to them, Suleman Khan died in the month of March, 1958 in Wah Mir Alam also asserted that he himself went to Wah in the very month when he was informed about the death of his brother. He was his stepbrother their father being the same.
4. ' In rebuttal, the plaintiff-applicant examined himself as a witness of his own and further led a number of witnesses to rebut the evidence led by the applicants. The learned Sub-Judge after discussing the evidence of the parties came to the conclusion that Suleman Khan was alive at the time an ex parte decree was passed against him. But at the same time it was further held by him that the plaintiff-applicant was unable to prove that they were aware of the parte decree beyond a period of 30 days before filing their application. No onus was placed upon the plaintiff applicant to prove that the applicants had the knowledge of the ex parte decree beyond a period of 30 days prior to the filing- of the application for setting aside the ex parte decree. As a matter of law, the onus was on the applicants to prove they want of knowledge of the decree till within 30 days before the application. The application for setting aside the ex parte decree is without a support of an affidavit. The applicants adduced no evidence to prove that they had no knowledge of the ex parte decree till within 30 days before the filing of their application before the Court for setting aside the ex parte decree obtained by the plaintiff-applicant. Mir Alam, the next friend of the minors appeared as a witness to depose in respect of his own knowledge with regard to the ex parte decree, whereas nothing in relation to the knowledge of the applicants (in the trial Court) was deposed to by him.
5. Any weakness of the evidence of the plaintiff-applicant could not be made a ground to set aside an ex parte decree unless it was specifically admitted therein that the impugned application was made within time in relation to the knowledge of the respondents-applicants. The respondents who were the applicants before the trial Court failed to establish their stand that the ex parte decree was made against a dead person. According to Mir Alam, the next friend, Suleman used to visit his house even during his desertion from the Army and it was why even children were also born to his wife somewhere in between the year 1959-1961. The affixture of the summons on the door of the house of Suleman is supported by an affidavit of the Process Server on record which was duly attested by the Sub-Judge. Thus the fact of Suleman himself being aware of the ex parte decree passed against him, can safely be presumed. That being so, it cannot be held without a concrete evidence that the ex parte decree was not within the knowledge of Suleman Khan or his legal representatives since long beyond a period of limitation prescribed prior to the filing of the application for setting aside the ex parte decree.
6. ' Therefore, this revision application is accepted and the impugned order is set aside thereby upholding the ex parte decree obtained by the plaintiff-applicant against Suleman Khan.