1. ' MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of an. Application filed under section 12(2), C.P.C. By the applicant with the prayer to set aside the judgment and decree dated 6-5-2005 passed by this Court in Civil Suit No,67 of 2004 as the same have been obtained by the respondents by way of fraud, misrepresentation and concealment of material facts.
2. ' In the supporting affidavit, it has been stated by the applicant that from April, 2003 till February, 2005, he resided in a rented premises No,48/2, 17th Land Phase VI, D.H.A, Karachi where after, he shifted to 30 Popular Avenue, Phase VI, D.H.A. Karachi. He came to Pakistan on 17-5-2001 and soon after his arrival at Karachi with his family, the officer of the respondent circulated news that the applicant had absconded and his entire undertakings were taken over mala fidely. The applicant has further stated that he had already paid 24 Million UAE Dirhams to the respondents out of the liability of 30 Million Dirhams before his arrival to Karachi which is evident from the plaint itself and he always wanted to pay off the respondents unless all doors of going back to Dubai have not been closed and his entire business would not have been taken over by sponsors mala fidely by active collusion with the officers of the respondents. The applicant has also stated that after his return to Pakistan in 2001, he never stayed in the House No,12/2, 32nd Street, Phase V, D.H.A., Karachi rather he used to live in his own House No, K 12/2, 9th (wrongly stated in the fresh address as 8th)
3. Gizri Street, Phase IV, D.H.A., Karachi, which he sold in the year 2000 while he was in Dubai to pay off the respondents debts much before returning to Karachi. The respondents knowingly and mala fidely mentioned address 12/2, 32nd Street, D.H.A, Karachi and summonses were issued through registered AD and courier service as well as by bailiff whereas bailiff reported that the applicant did not live at the given address and has shifted from there, which was also confirmed by the courier agency, hence the plaintiff was directed to file fresh address which the plaintiff did and summonses were ordered to be issued, but the same could not be issued as cost was not paid, thereafter, the plaintiff had filed an application under Order V Rule 20 C.P.C. For substituted service which application was ordered to be considered subsequently by the Additional Registrar and summonses were directed to be issued on fresh address which were accordingly issued and the bailiff reported that on query, he was told that the applicant has gone abroad but the bailiff did not mention in the report that with whom he had met and at which address did he visit. The summonses were ordered to be repeated. Again summonses could not be issued as cost was not paid but on the same day, the Additional Registrar ordered that the applicant be served by substituted service and ordered the publication in Daily Jang as well as through courier service, registered post AD and pasting. The summonses were published in Daily Jang on 28-11-2004, while the bailiff reported that he pasted a notice but there is no mention as to on which address notice was pasted. It has been further stated by the applicant that he is not doing any business at "Time & Style" and the House No, 12/2, 9th Street (wrongly mentioned as 8th Street in fresh address) was also sold by him in the year 2000. The respondent without trying to serve the applicant in the ordinary course, got the notice published knowing fully well that the applicant has been living in Dubai for a long time. On 26-3-2007, the applicant was shocked when one of his ex-employees Mr. Imran, who used to work for him and visit the applicant off and on, called and informed the applicant that a bailiff of this Court came to the shop "Time and Style" and left a notice to appear and defend the Execution Application No,44 of 2006 whereupon the applicant immediately contacted his lawyer, who inspected the file and came to know that the respondents got a judgment and decree from this Court by misrepresentation and playing fraud and without proper service, hence the impugned judgment and decree are liable to be set aside.
4. ' Counter Affidavit was filed by the attorney of respondent No,1 in which he denied all adverse allegations contained in the application and stated that the application is misconceived, mala fide, not maintainable and the same is liable to be dismissed. He further stated that alleged tenancy agreement was executed by the wife of the applicant with her landlady and they have no concern with his wife or her address. It is further stated that the respondents filed Suit No, 67 of 2004 against the applicant for recovery of loan amount and his last known address as recorded/supplied by the applicant to the respondents was mentioned in the plaint as such the address of the wife of the applicant has no concern with the service of summons nor the applicant has informed the respondents that he was residing with his wife at the said address. The applicant did not inform the respondents about the change of his address and/ or new address for ulterior motives and with mala fide intention to avoid the receipt of notices/summonses sent to him in connection with repayment of financial liability. The notices/summonses of this Court were issued to the applicant in accordance with law to the address provided by the applicant to the respondents. The applicant cannot take the plea of non-service of notices/summonses of this Court in the suit at this stage. It has also been stated that notices/summonses of this Court in Suit No, 67 of 2004 were sent to the applicant with all modes i,e, by registered post AD, by bailiff as first instance by three or four times, but when the service could not be effected on the applicant in ordinary way, the notices/summonses were served upon the applicant through substituted service by way of publication. Finally it has been stated that the application under section 12(2) C.P.C. May be dismissed with cost.
5. ' I have heard the learned counsel and perused the record. The Suit was filed in this Court on 12-1- 2004 with the residential address of the applicant House No,12/2, 32nd Street, Phase V, DHA, Karachi.
6. On 15-1-2004, the Additional Registrar issued process for 4-3-2004. The diary of Additional Registrar dated 4-3-2004 shows that summonses were issued but were returned unserved as no such person was residing at the given address. The bailiff's report was in negative, however on 22-4- 2004, the matter was fixed before the Additional Registrar for filing fresh address of the defendant.
7. Again, the matter was fixed on 12-8-2004 before the Additional Registrar and diary shows that summonses were not issued as cost was not paid, however it further shows that the plaintiff had filed an application under Order V, Rule 20, C.P.C. For publication. The Additional Registrar kept the application pending and ordered to issue summons on the fresh address. The diary dated 7-10- 2004 shows that the summonses were returned unserved as the defendant had gone abroad and order for repeat notice was passed. The diary dated 12-11-2004 shows that summonses were not issued to the defendant as cost was not paid and at the same time the application for substituted service was allowed. On 23-12-2004, service was held good on the basis of publication in Daily Jang, Karachi. In order to show the bona fide, the applicant has attached the copy of two tenancy agreements and pleaded that since April, 2003 to February, 2005, he was residing in a rented premises at House No,48/2, 17th Lane, Phase VI, DHA, Karachi. Thereafter, he shifted to the ground floor of Bungalow No,30, Popular Avenue, Phase VI, D.H.A., Karachi and also alleged that before coming to Karachi, he had paid 80 per cent of the amount to the plaintiff. It is further stated that after return to Pakistan in 2001, he never stayed in the House No, 12/2, 32nd Street, Phase V, D.H.A., Karachi. He has also attached sale-deed to show that the said house was sold by him in the year 2000, much prior to the date of filing of the suit. So the address of the defendant in the plaint was totally wrong. On 22-4-2004, the plaintiff again filed a wrong address of the applicant and instead of mentioning the correct Street number, they mentioned the Street No,8 instead of Street No,9. So far as another address i,e, Shop "Time & Style" located at Zaibun-Nisa Street, Saddar, Karachi is concerned, the applicant states that he had never owned or operated any business at the said shop. The applicant has also attached the bailiff's report dated 16-10-2004, which shows that bailiff attempted twice to serve the applicant but returned the process with the note that consignee is out of country and submitted his report that person is unserved. Another report of bailiff dated 22- 12-2004 shows that bailiff visited the premises on 20-12-2004 and pasted/affixed the copy of the notice at the premises. The second report does not clarify whether any person was available on the premises or not and what was the reason of pasting/affixing the copy of notice, however the bailiff has reported with further note that nobody was ready to witness the pasting of summons at the given address. The learned counsel for the applicant has argued that the reports submitted by the bailiff are manipulated and against the relevant provisions of Sindh Chief Court Rules (0.S.).
8. ' Chapter VI of Sindh Chief Court Rules (0. S) pertains to Processes. The relevant Rules are Rules Nos.140 to 145. For convenience and ready reference, aforesaid Rules are reproduced as under:--
140. Endorsement of Identifier on the original process. If serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served.
141. Procedure where defendant refuses to accept service or cannot be found. Where the person to be served refuses to sign the acknowledgment or cannot be found, the serving officer shall whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb-impression of at least one respectable person of the locality in support of such fact.
142. Return of service. (1) Every process serving officer shall immediately after completion of any duty connected with any process, record with his own hand upon the original process at the place of execution and in the presence of witnesses (if any) his report specifying the manner of execution or the causes which prevented execution. Such report shall be sworn or affirmed before the Nazir or the Deputy Nazir and shall, together with the process, be filed in the record.
(2) Process serving officers must invariably note the date, hour and exact place of service of each individual process.
(3) If the process is addressed to more than one person, the report shall describe the manner of service on each person and also the sequence in which the processes are served on different persons.
143. Service by affixing to outer door. If a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:
(1) the number of times and the dates and hours at which he went to the house;
(2) the attempts made by him to find the person to be served;
(3) whether he had any, and what, reason to suppose that such person was within the house or in its neighbourhood, or endeavouring to evade service;
(4) whether any adult male member of the family of the person to be served was residing with him.
144. Notice where summons is affixed to outer door. If a summons to a defendant is affixed to the outer door of a house, the serving officer shall affix therewith a notice that the person so served can, upon application to the Court, obtain a copy of the plaint, and shall in his return state that he has done so and shall return the plaint to the Court. If the summons has been sent by another Court for service and the defendant does not apply for the said copy before the summons is returned to the said Court, it shall be returned to that Court along with the summons.
145. Inquiry as to sufficiency of service. The Registrar (O.S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefor in such process by or on behalf of the person or persons against whom it has been issued.
9. ' Such inquiry may be adjourned, if necessary, from time to time. Affidavits and further affidavits may be received or evidence taken viva voce at such inquiry.
146. Fresh process not issue until previous one returned. Unless otherwise ordered, a second or subsequent process shall not be issued until after the one previously issued has been returned.
10. ' According to the learned counsel for the applicant, the entire reports submitted by the bailiff are contrary and in violation of the relevant Rules and from very beginning, the plaintiff has mentioned the wrong address and even the fresh addresses submitted subsequentry were also wrong. In fact, the defendant was never served, therefore the judgment and decree has been obtained by way of fraud and misrepresentation and it is liable to be set aside with a fair opportunity to the applicant to defend the suit. In support of the argument, the learned counsel for the applicant has relied upon the following judgments:--
(1) Nouroz Khan v. Haji Qadoor 2005 SCM R 1877.
(2) Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCM R 664.
(3) Haji Akbar and others v. Gul Saran and others 1996 SCM R 1703.
(4) Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCM R 1228.
(5) Atiqur Rehman v. Novell Data Systems Pakistan (Pvt.) Ltd. 2009 YLR 432.
(6) Muhammad Younis v. Additional District Judge, Jhelum. 2006 M LD 963.
(7) Muhammad Ayub Patel v. Hasham 1997 M LD 1838.
(8) Yousuf A. Haroon v. Mahmood A.Haroon 1997 M LD 2246.
(9) Mst. Zubeda Begum v. Messers Long Life Builders 1995 CLC 1290.
(10) Zulfiqar v. Muhammad Jan 2002 CLC 932.
(11) Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah 1993 M LD 889.
(12) Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6.
11. ' The judgment quoted at Serial No,1 pertains to Order IX, Rule 13, C.P.C. For setting aside ex parte decree. In this case, the petitioner had challenged the order of learned Peshawar High Court, which reversed the judgment of appellate court in its revisional jurisdiction due to the defect in the service of summons. In this case the learned High Court observed that for the service of summons, the requirement of law was not fulfilled and the Hon'able Supreme Court after hearing the parties maintained the judgment of Peshawar High Court.
12. ' In the judgment cited at Serial No,2, the facts of the case were that petitioner Ahmed Khan filed a suit against Haji Muhammad Qassim. Summons issued but could not be served upon him and the Civil Judge after ordering summons on different dates directed service through publication.
13. Thereafter the suit proceeded ex parte and decreed. When the respondent came to know about ex parte decree, he filed an application under section 12(2), C.P.C. In which he alleged that he had not been served, therefore, the decree was obtained through fraud. The application was dismissed with the direction to file another application under Order IX, Rule 13, C.P.C., which was also dismissed subsequently. The Revision, filed before the Additional District Judge was also dismissed.
14. Thereafter the respondent filed petition in the High Court. The High Court remanded the matter to the Senior Civil Judge for decision afresh. The order of the High Court in which it was held that the respondent was not properly served was maintained by the Hon'able Supreme Court.
15. ' In the judgment at Serial No,3, the Hon'able Supreme Court has discussed the provisions of Order V Rule 20, C.P.C. And held that no personal service was effected on defendant, who was residing outside Pakistan. Substituted service effected in a local newspaper was not in accordance with the law and the address of the defendant in publication and in plaint was different. Ex parte proceedings against defendant of all the forums below were set aside. Case was remanded to the Civil Judge for decision afresh.
16. ' In the judgment at Serial No,4, again Order V, Rule 20, C.P.C. Along with Order IX, Rule 13, C.P.C. Have been discussed. The Hon'able Supreme Court has held that court ordering substituted service on defendant having formed opinion that it was not possible to have defendant served in ordinary way. Opinion not supported on the basis of record. Failure to record finding about defendants's keeping out of way for purposes of avoiding service. Ordinary ways of service of summons not resorted to. Irregular service of summons not to be treated as "due service".
17. ' In the judgment at Serial No,5, the learned Single Judge of this Court has held that the correct address of the defendant was suppressed and ex parte decree was passed. It was also established from the record that no notice on correct address of the defendant was ever issued and service was not held good. Finally, in this case, the application moved under section 12(2), C.P.C. Was allowed and decree was set aside.
18. ' In the judgment at Serial No,6, the learned Single Judge of Lahore High Court has held that in absence of issuance of summons on correct address, order of substituted service was not lawful because such service is in disregard to the provisions of Order V, Rule 20, C.P.C. On the finding, the petition was allowed.
19. ' In the judgment at Serial No,7, the learned Single Judge of this Court has held that in view of non- compliance of Rules 140 and 143 of the Sindh Chief Court Rules (O.S.), the substituted service by publication is not held good and proper service. On this finding, the application was allowed and ex parte decree was set aside.
20. ' In the judgment at Serial No,8, the learned Single Judge of this Court has discussed Order V, C.P.C.
21. And Sindh Chief Court Rules 141, 142, 143 and 144. The judgment says that Order V, C.P.C. Provides different modes of service of summons. The only condition laid down in Rule 141 of Sindh Chief Court Rules (O.S.) is that before affixing a copy of summons on the outer door, the serving officer shall obtain endorsement of signature or thumb-impression of at least one respectable person of the locality. Rule 142 further describes that after completion of any duty connected with the process, the serving officer, in presence of witnesses, if any, will return his report, which shall be sworn or affirmed before the Naziror Deputy Nazir of the Court.
22. ' In the judgment at Serial No,9, the learned Single Judge of this Court has held that endorsement of bailiff and endorsement on registered AD clearly demonstrated that the defendant was not personally served and that bailiff did not take any respectable person with him at the time of affixation of summons on the door of office or residential address of defendant. The application was accepted and the defendant was allowed to file written statement within a period of one month.
23. ' In the judgment at Serial No,10, the learned Single Judge of Peshawar High Court held that endorsement on the back of summons did not show that service of summons had been effected in accordance with the provisions of Order V, Rules 16, 18 and 19, C.P.C. Process Server had not mentioned on the back of summons as to why petitioner could not be served at his home address in the plaint. What were the circumstances, which had led him to locate the petitioner at a certain office., Who had identified the petitioner at that office and in whose presence the service had been effected. Trial Court before proceeding ex parte had not examined the Process Server on Oath. On this finding the learned Single Judge accepted the Revision and set aside the impugned judgments and decree and remanded the case to the trial Court for de novo trial on merits.
24. ' The judgment at Serial No,11 has been relied to show that wrong nomenclature on any application does not hinder the dispensation of justice. In this judgment, the learned Single Judge of Lahore High Court has held that application for setting aside ex parte decree under wrong provision of law does not affect the case on merits. The defendant had filed application under section 12(2), C.P.C.
25. For setting aside ex parte decree and the Court had rightly entertained such application under Order IX, Rule 13, C.P.C. The purpose of citing this judgment is to show that this Court has ample power and jurisdiction to treat this application under Order IX, Rule 13, C . P. C . Also.
26. ' In the last judgment at Serial No,12, the learned Single Judge of Balochistan High Court has held that no summons addressed to the petitioner at his address. Notice once issued remained unserved. Nothing on record available to suggest that defendant was avoiding service. Substituted service ordered in newspaper published from Quetta for a person residing in England. All available steps to effect proper service held must be made before resorting to substituted service through publication in newspaper. The defendant was entitled to have ex parte decree set aside against him if summonses were not duly served.
27. ' The learned counsel for the respondents opposed the application on the ground that there is no fraud or misrepresentation, therefore the application is not maintainable. He further argued that whatever address was available, the same was mentioned in the plaint and in order to get the applicant served properly, the fresh address was also filed. The applicant was in the knowledge of case but he avoided to enter into any appearance to contest the matter and after passing the ex parte decree, he has filed this application with mala fide intention and ulterior motive to delay the execution proceedings. In support of the arguments, the learned counsel did not rely any case-law and simply requested that the application is not maintainable and liable to be dismissed with cost.
28. However, he disputed the tenancy agreements on the ground that the same were executed by the wife of the applicant. It was further argued that the applicant never informed the correct address to the respondent with ulterior motive to avoid the receipt of summons sent to him in connection with the repayment of financial liability. Finally he prayed for dismissal of application with cost.
29. ' The bone of contention between the parties is the issue of service. From the documents attached with the application including tenancy agreement and sale-deed. It is clear that the address of house mentioned in the plaint was sold out by the plaintiff in the year 2000 and both the tenancy agreements are also showing the different addresses which do not match either with the initial address mentioned in the plaint or the fresh address filed subsequently. In paragraph 11 of the application, the applicant has vehemently stated that he was not doing any business at the shop known as "Time & Style" and he further stated in the same paragraph that he had sold out House No,K-12/2, D.H.A., Karachi in the year 2000. In response to this paragraph instead of controverting or refuting the assertion with cogent reason, the respondent No,1 in its counter affidavit simply denied the assertion for want of knowledge. The applicant has pleaded the knowledge of the execution application on 26-3-2007 when his alleged ex-employee Imran informed him that bailiff of the Court came and left a notice to appear and defend execution Application No, 44 of 2006. Again, the respondent No,1 without controverting or refuting this assertion, simply denied it for want of knowledge. In the counter-affidavit, the respondent No,1 has not seriously opposed the assertion of the applicant relating to non-service of summons and even it has not been stated that the shop "Time & Style" was ever owned by the applicant or the applicant has had any connection with this shop. The whys and wherefores lead two situations which are emerging from the present situation, one is the service through bailiff and the reports submitted by the bailiff and secondly, the substituted service whereby the service was held good. So far as the bailiff's reports are concerned, the same are in violation of mandatory provisions incorporated under the Sindh Chief Court Rules (O.S.). In the report of bailiff dated 6-10-2004, he simply mentioned that he visited the address twice and was informed that consignee was out of country. It is the matter of record that the address submitted by the plaintiff was wrong due to incorrect mention of Street number. It is clear under Rule 140 of Sindh Chief Court Rules (O.S.) that if serving officer is riot personally acquainted with the person to be served, he will obtain on the original process the endorsement by signature of a respectable person of locality identifying such person. Nothing is mentioned in the bailiff's report.
30. The second report pertains to affixation/pasting of notice. It is also in violation of Rule 143 of Sindh Chief Court Rules (O.S.) which clearly provides that if a process is affixed to the outer door of the house in absence of the person to be served, the serving officer shall make an affidavit showing the number of times and dates and hours on which he went to the house etc., but the bailiff has failed to comply with this mandatory provision. Again the bailiff approached to the wrong address and also failed to comply with the mandatory provisions of Sindh Chief Court Rules (O.S.) relevant to the process. The Additional Registrar of this Court has also failed to hold inquiry under Rule 145 which makes mandatory for him as to sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the date appointed therefor in such process by or on behalf of the person or persons against whom it was issued. The relevant provisions for process have been provided in the Sindh Chief Court Rules for the convenience and in the larger public interest and if the same are not followed in letter and spirit, it will create unnecessary multiplicity of proceedings. So in my view, before declaring any person ex parte, the Court ought to ensure that all reasonable and A possible efforts have been made for the effective service on the parties. In this case, neither the bailiff has complied with relevant provisions nor the Additional Registrar of this Court has held any inquiry as to sufficiency of service and ordered the substituted service. The judgment of Hon'able Supreme Court reported in 1996 SCM R 1703 (supra) is quite applicable in the facts and circumstances, of this case in which the judgments were set aside on the ground that no personal service was effected on the defendant, who was residing outside Pakistan. It was further held in the same judgment that substituted service effected in a local newspaper was not in accordance with the law and address of the publication and in the plaint was different. Another judgment reported in 1985 SCM R 1228 is also helpful to the case of applicant that before ordering substituted service, there must be an opinion that it was not possible to have the defendant served in the ordinary way. The Additional Registrar's diary does not show that any opinion was formed and in fact it shows that many times the plaintiff failed.To pay the cost of process, fresh address was filed which was also incorrect. The record further shows that on 12-11- 2004 summonses were not issued to the defendant as cost was not paid and one week's time was allowed for the payment of cost. Simultaneously, the diary shows that the plaintiff moved an application under Order V, Rule 20, C.P.C. Praying to serve the defendant by way of publication. The application was allowed on the same date. The directions of Additional Registrar are contrary, on one hand he allowed one week's time for the payment of cost and on the other hand on the same day the application was allowed for substituted service.
31. ' After appreciating the entire facts of this case, I am of the view that the address of the applicant was wrong throughout the proceedings and no efforts were made for the personal service on him at the correct address. In all conscience, I have reached to a conclusion that the judgment and decree have been obtained on misrepresentation, which is clearly transpiring from the wrong address of the applicant mentioned in the plaint as well as subsequent addresses provided by the plaintiff. The Hon'able Supreme Court has provided a guideline for determination of application under section 12(2), C.P.C. In its judgment reported in Nazir Ahmed v. Muhammad Sharif 2001 SCM R 46 and held that Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. Matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal. The only controversy involved in this case is whether the applicant was served or not or whether the address mentioned in the plaint was correct or not. This can easily be decided on the basis of available record without any settlement of issues or recording of evidence. Keeping in view the pros and cons, the bottom line of this discussion is that the address of the defendant/applicant was wrong,' the suit was decreed on the basis of wrong address and the applicant was never served, hence the application under section 12(2), C.P.C. Is maintainable on the ground of misrepresentation.
32. 'For the foregoing reasons, the ex parte judgment and decree dated 6-5-2005 passed by this Court in Suit No,67 of 2004 are set aside with the directions to the applicant to file written statement within one month for further proceedings in the matter. Since the main application has been allowed, the listed application has become infructuous.