1. ' ZAFAR AHMED KHAN SHERWANI, J.--- Vide short order dated 28-1-2009 an application under Order IX, rule 13, C.P.C. (C.M.A. No.8619 of 2006) was allowed for the reasons to be recorded later and now I proceed to record the same.
2. ' Brief facts leading to this application are that this suit was originally filed against three defendants namely Blazon Advertising (Pvt.) Ltd. Through its Chairman Mr. Asif Raza Mir (the applicant) (2) Mrs. Uzma Gilani, Director and (3) Mr. Habib Hashmani, Director for Recovery of Rs.4,914,959 being outstanding amount against the defendants on account of a contract dated 31-12-1993 for installation, operation and maintenance of 18 tri-vision Displays at designated sites at Quaid-e- Azam International Airport Karachi and also tri-vision display site each at Lahore and Islamabad 1993 for a period- of 5 years. Summonses were issued to the defendants but on account of the fact that office of the defendant No.1 had been shifted, therefore, service on it was effected in substitute manners, and the suit proceeded ex parte and lastly decreed against the defendant No.1 whereas the same was withdrawn against the defendants Nos.2 and 3 on 29-4-2003.
3. ' The listed C.M.A. Was filed on 21-11-2006 by the applicant Asif Raza Mir for setting aside the ex parte decree on the ground that he was never served with the summons. It was further submitted that he was only a Director and the shareholder of the Company known as Blazon (Pvt.) Ltd. And on account of certain serious dispute between the shareholders the Company had suspended all its activities and closed out its business in 1998 and he himself left Pakistan and settled in Canada and this fact was in the knowledge of the plaintiff as during pendency of the suit such statement was filed in Court by its Advocate but a wrong and incomplete address was given whereas the suit was filed on 19-9-2000 giving the address of the Company of Karachi, publication of the summons was made in the daily Dawn Karachi on the basis of which service was held good although he was in Canada in those days and returned to Pakistan on 16-10-2006, whereas the suit was decreed ex parte on 31-8-2004 but he came to know about the decree when the notice in the Execution Application No.12 of 2005 was served upon him as Chairman of the judgment-debtor Messrs Blazon Advertising, hence the ex parte decree is fit to be set aside to enable the applicant to defend himself on merits by placing the actual facts before this Court.
4. ' In support of the application the applicant Asif Raza Mir has filed his Affidavit. In reply of the affidavit one Syed Yousuf Abbas, Airport Manager of the plaintiff filed his counter-affidavit in which he inter alia alleged that applicant/defendant was in the knowledge of the pendency of the suit and the notices were published in the Dawn giving the address which was the same as given by him in the license agreement. Necessary documents in support thereof were also filed. The applicant Asif Raza Mir filed his Affidavit in Rejoinder in which he reiterated the averments made in the affidavit as well as in the application and denied the allegations made in the counter affidavit.
5. ' I have heard the learned counsel for the parties and perused the record. The learned counsel for the applicant submitted that besides other facts which have been mentioned in the application, admittedly the plaintiff has himself given the address of the applicant which pertains to Canada but the publication of the summons as made in the newspaper of Pakistan and not of Canada and even the address of Karachi given in the publication was not of the applicant, therefore, he remained unaware about the pendency of the suit, therefore, the ex parte decree passed against him is illegal and may be set aside and he may be added as one of the defendants in his personal capacity to defend the suit.
6. ' The above arguments were repelled by the learned counsel for the plaintiff who submitted that the summonses were sent to the applicant on the addresses given by him in the agreement which was executed with the plaintiff and no other address was available, therefore, service was rightly effected good on the basis of such publication of the summons in the newspaper, hence, the applicant has no case that the decree against him be set aside, however, he could not reply the arguments that when the applicant was residing in Canada as per his own statement in writing, then why the service was not effected on his address at Canada.
7. ' I have carefully considered the above argument in the light of the record. From the perusal of the record it transpired that the applicant Asif Raza Mir, who has been shown as Chairman of Messrs Blazon Advertising (Pvt.) Ltd. Or even as the Chairman of Blazon Advertising, was not residing in Pakistan when the suit was filed as he stated in the Affidavit against which no particular fact was brought on record to deny the same but the notices were sent to him at the address of Karachi which was also published in the Daily Dawn, Karachi. Whereas the statement of the Advocate for the plaintiff dated 2-1-2003 proves that the plaintiff was in the knowledge of this very fact, therefore, the service on him by way of publication of the summons in such a newspaper was not proper and on the basis of such defective service the suit could not be decreed against him without providing an opportunity to be heard for there is nothing on record that this newspaper i.e. Daily Dawn was having circulation in Canada also or the said publication of the summons ever came to his notice in any manner before the decree was passed against him. Even after the publication of the summons in the daily Dawn Karachi dated 20-5-2003 the matter was placed before the Court on 11-8-2003 when directions were issued that the summons to the defendant through bailiff be served. Again the bailiff reported that the defendant had been shifted from the said address and therefore, the plaintiff was asked to file fresh address but in place of filing the fresh address on the request of the learned counsel for the plaintiff the matter was fixed in Court on 22-9-2003 on which date on the basis of publication of the earlier summons in daily Dawn dated 20-5-2003 it was ordered that the suit would proceed ex parte.
8. ' In the above circumstances, it is clear that the ex parte decree passed against the applicant Asif Raza Mir as Chairman of the J.D. Is illegal being in violation of the principle of natural justice, therefore the same is set aside. His request that he may also be added as defendant No.2 in his personal capacity is also accepted. J.M.16 of 2007 is also disposed of accordingly. Let the plaintiff file an amended plaint accordingly.