MUHAMMAD ALAM KHAN, J.--- The petitioner is aggrieved from the order of Additional District Judge-III, Swabi, dated 22-5-2007, through which while accepting the appeal of the respondents, the order of Mian Zahidullah Khan, Civil Judge/Judicial Magistrate, Swabi in Petition No,13/6 of 2001, decided on 9-6-2006 refusing to set aside ex parte decree against Taj Muhammad defendant- respondents, was accepted and ex parte decree, dated 23-10-1991 passed against the respondents was set aside.
2. Brief facts of the case are that Ali Haider etc. Including Farid plaintiff-petitioners filed a suit for declaration to the effect that they are owners of land measuring 47 Kanals, 16 Marlas 4.4/17 Sarsaees, fully detailed in the heading of the plaint, dated 8-4-1989 on account of time-barred mortgage and due to afflux of time. The learned trial Court issued summons against the defendant-respondents and finally made a proclamation in the newspaper and after recording the ex parte evidence granted the plaintiff-petitioners an ex parte decree on 23-10-1991. Taj Muhammad and others defendant-respondents on 10-4-2001 submitted an application for setting aside the ex parte decree. The learned trial Court after calling for replication from the plaintiff- petitioner and hearing the counsel for the parties, dismissed the said application.
3. Muhammad Khurshid and others defendant-respondents filed an appeal against the dismissal of their application for setting aside the ex parte decree, which came for hearing before Ahmad Sultan Tarin, Additional District Judge-III, Swabi and he after hearing the counsel for the parties and perusing the record vide Miscellaneous Civil Appeal No,45/14 of 2006, decided on 22-5-2007 accepted the appeal and set aside the ex parte decree in Suit No,119/1 of 1991, thus, the original suit was restored and was remitted to a Civil Judge for decision on merits. Farid son of Aziz Khan plaintiff-petitioner has assailed the last mentioned order of the Additional District Judge, Swabi through the instant revision petition.
4. Farid Khan petitioner assisted by Mashal, Clerk of Mr. Lal Jan Khattak, Advocate, who submitted written arguments and thrashed out the facts of the case. It was argued that the application submitted by the defendant-respondents for setting aside the ex parte decree was time-barred, as envisaged under Article 164 of the Limitation Act and thus, the learned Additional District Judge, Swabi erred in setting aside the ex parte decree.
5. I have given deep consideration to the facts and legal position involved in this revision petition.
Perusal of the record reveals that summonses were issued against the defendant-respondents and overleaf the summonses was a note of the bailiff that they could not be traced on the given address. It was She bounded duty of the learned Civil Judge to have asked for filing of fresh addresses of the defendant-respondents but instead he ordered the proclamation in the newspaper which procedure was bad in law, when the process-server has not reported either the avoidance or refusal of service by the defendant-respondents, the order for proclamation of service in the newspaper was not warranted under the law as held in Pervez Muhammad Khan v.
Mrs. A.N. Kishwar and others 1991 CLC head note of cases Note No,296 at p.226.
6. The law, as contained in Order V, rules 16, 18 and 19 of the Civil Procedure Code prescribes a complete machinery for service of summons which had been violated by the learned trial Court. It was also argued by the petitioner that the respondent had otherwise, the knowledge of the ex parte decree but he could not submit the application within 30 days from the date of the decree as envisaged by Article 164 of the Limitation Act. The said Article provides 30 days of limitation from the date of the decree but if the summonses are not duly served, then the terminus a-quo i,e, starting point of limitation will start from the date of knowledge. It is on the record and as stated earlier, the summonses in this case were not duly served, there is no cavil with this proposition that when knowledge is proved, due service or otherwise loses its importance as held in the case of Zafarul Haq v. Waris Khan and others PLD 1979 Lah. 793 so the knowledge of the ex parte decree on behalf of the defendant-respondents is lacking in this case.
7. Admittedly, the defendant-respondents have not been properly served. Neither the bailiff reported the refusal of service on behalf of defendants nor there was any avoidance of service. It has also not been proved on the record that the defendant-respondents have been served through proclamation in the newspaper so the procedure adopted by the learned Civil Judge was absolutely unwarranted and bad in law, as held in the case of Ghulam Rasool and others v.
Mst.Noondan and others PLD 1994 Lah. 274 and Zulfiqar v. Muhammad Jan 2002 CLC 932.
8. The order of the learned Additional District Judge-III, Swabi, dated 22-5-2007 is perfectly sound, just, equitable and in consonance with the established principles of administration of justice, which calls for no interference, hence the same is maintained but with a little modification that a cost of Rs,3,000 is imposed on the defendant-respondents, payable to the plaintiff-petitioner Farid Khan before Civil Judge, Swabi.
In view of the facts and circumstances of the case narrated above, except the above modification, there is no force in the present revision petition, which is dismissed in limine. Copy of this judgment be sent to the learned District Judge, Swabi for placing the same on the record of Civil Suit No,119/1, pending in the Court of Mr. Alamgir Shah, Civil Judge, Swabi. The learned Civil Judge is directed to take-up this case on day to day hearing basis, as the matter has lingered on for sufficiently long time and it will be highly appreciated if it is disposed of within three months from the date when the learned Civil Judge receive the copy of this order. The petitioner is directed to appear before Mr. Alamgir Shah, Civil Judge, Swabi on 11-2-2008.