1. ' MRS, SYEDA TAHIRA SAFDAR, J.---It is case of the appellants that the respondent filed a suit for recovery of Rs,7,13,538 and Rs,5,001,000 as damages against their predecessor Muhammad Hanif and Muhammad Saleem appellant No,1, which was registered on 11-8-1996, while notices were issued for them. But, thereafter, without return of notice it was ordered that notice be served through publication in newspapers i.e. Daily Mashriq Lahore. But with mala fide intention publication was not made in said paper, rather order was obtained for publication of Notice in Daily Pakistan or Daily Khabrain, which are neither popular, nor have good circulation in Punjab particularly in Gujranwala. Despite the same publication was made in Daily Pakistan and on basis of the same the trial Court ordered them to be proceeded ex parte, while on 16-9-1997 the trial Court decreed the suit against the appellants without observing the provisions of Order-V, C.P.C. It is further their case that the respondent filed application for execution of decree in May 1999, which was transferred to Civil Judge, Gujranwala, wherein order for attachment of their property was made. It is their case that they came to know about the passing of ex parte decree on 16-9-2001, when the notice issued by Civil Judge Gujranwala was served on them. Feeling aggrieved of the same they filed application under Order-IX, Rule-13, C.P.C. Read with section 12(2) and 151, C.P.C. For setting aside of the impugned order and decree before the trial Court, but the same was dismissed through order dated 11-12-2001.
2. ' Feeling aggrieved of the same they preferred present appeal on grounds that the impugned order dated 11-12-2001 and ex parte decree dated 16-9-1997 are contrary to law and facts, the grounds taken by them in the application are not considered, thus they have been condemned unheard.
3. Further, matter had been decided without calling of evidence, which is neither legal, nor just.
4. Furthermore, their proper address was not given, thus the respondent committed fraud and misrepresentation to obtain the court for effecting of service in Daily Pakistan instead of Daily Mashriq, which had very small circulation in Gujranwala, as such they have no knowledge, which they for the very first time came to know during course of execution proceedings (at Gujranwala.
5. The trial Court mis-exercised its jurisdiction; the matter is required to be decided on merits, rather avoiding the technicalities. Thus prayed for setting aside of impugned order dated 11-12-2001 and order and decree dated 20-5-1997 and remand of the case for re-trial and decision on merits.
6. ' The perusal of record reveals that the respondent/plaintiff filed a suit for recovery of an amount of Rs,7,13,538 due in respect of supply of coal under contract existed between the parties and damages on account of breach of contract to tune of Rs,500,000. The record further reveals that notices for predecessor-in-interest of appellants and present appellant No, 1 being defendants were issued through registered posts, thereafter, through telegraph and TCS. As notices were not returned after service, whereupon it was ordered that the service be effected through publication in newspaper i.e. Daily Mashriq Lahore. But on 30-4-1997 on statement made by counsel for the respondent/ plaintiff to the effect that daily Mashriq Lahore has closed, as notice has been returned to him, whereupon the trial Court ordered for publication to be made in Daily Pakistan/Khabrain Lahore. Thus on effecting of publication and on receiving of newspaper, due to non-appearance on behalf of appellants/defendants they were proceeded against ex parte. The trial Court after hearing the respondent/plaintiff and relying on the evidence produced by him decreed the suit in his favour as prayed through 'order dated 16-9-1997. Application for execution of decree was filed on 25-5-1999, which was transferred to the District Judge, (Jujranwala on request of respondent on 16-6-1999. The appellants/ defendants filed application under Order-IX, Rule-13, C.P.C. Read with section 12(2) and 151, C.P.C. For setting aside of ex parte decree in year 2001. They raised almost similar grounds as raised in present appeal in said application, which was heard and decided through order dated 11-12-2001, now impugned in present appeal. While rejecting the same the learned trial court observed therein that the appellants/ judgment debtors contested the execution proceedings in Gujranwala since 11-11-1999, while during pendency of execution proceedings the appellants/judgment debtors filed a suit for permanent injunction, wherein same address was given. That suit and review application both were rejected. Another suit for rendition of account was also filed, with same address, which was also dismissed through order dated 19-10-2000. The trial Court while holding that no fraud and misrepresentation is committed by the respondent/decree holder rejected the application being time barred and having no force through order dated 11-12-2001. The respondent/ plaintiff filed his written reply to the appeal contending therein that present appeal is not competent as order made under section 12(2), C.P.C.
7. Is not appealable, rather revision lies, thus the same is liable to be dismissed. Further, the present appeal has been filed with mala fide intention only to delay the execution proceedings. The appellants were fully aware of the proceedings while they were contesting the execution proceedings, further, they filed suits against him (respondent) at Gujranwala, but intentionally avoided to appear before the trial Court at Quetta. No fraud or misrepresentation has been committed by him; rather the appellants have concealed material facts. He prayed for dismissal of appeal. The respondent along with his reply filed several documents pertaining to the litigation pending between the parties in Courts at Gujranwala.
8. ' The appellants being aggrieved of order dated 11-12-2001, whereby the application filed by them under Order-IX, Rule-13, C.P.C. Read with sections 12(2) and 151, C.P.C. For setting aside of ex parte decree dated 16-9-1997 was dismissed, preferred present appeal for setting aside of both the orders dated 11-12-2001 and 16-9-1997. The first point, which requires consideration is that whether present appeal is maintainable, as it has been objected by the respondent that the order of rejecting application under section 12(2), C.P.C., is not appealable, rather revision was required to be filed. Section 104, C.P.C. Provides the details of orders from which appeal lies and Order-XLIII, Rule-1, C.P.C. Also numerate the instances of filing of appeal. Keeping in view the same order made under section 12(2), C.P.C. Is not included therein, as such the order made thereunder is surely not appealable, rather revision can be filed. But it is to be noted that the appellants approached the trial Court for setting aside of ex parte decree not only under provisions of section 12(2), C.P.C., rather they also filed application invoking provisions of Order-IX, Rule-13, C.P.C. As per clause (d) of Rule-1 of Order-XLIII appeal lies against such order. Keeping in view the same the present appeal is very much maintainable.
9. ' The main contention of the appellants is to the effect that service was not properly effected on them, while they were not in knowledge of the suit Filed against them by the respondent, who misled the court while got effecting the service through publication in such a newspaper, which has no circulation in Gujranwala. The trial Court failed to appreciate these acts while deciding their application for setting aside of ex parte decree. The respondent strongly controverted the contentions raised by the appellants. According to him the appellants were in full knowledge of pendency of the suit, rather they intentionally avoided to, appear, service was effected properly.
10. The respondent placed on record several papers pertaining to litigation pending between the parties in the courts at Gujranwala.
11. ' The perusal of record reveals that the respondent filed suit for recovery of amount and damages in year 1996, whereby the service was effected on the appellants/defendants through publication in newspaper. The order sheets maintained by the trial Court, copies whereof are placed on record by the respondent, reveals that the notices were issued repeatedly through registered post telegram and TCS, but remained un-served or not returned, whereupon order for publication was made. As per appellants the trial Court failed to observe the procedure provided under Order-V C.P.C., the trial Court was required to wait for report of Civil Judge, Gujranwala to whom summons was issued for effecting of service. Order-V, C.P.C. Describes the mode in which service can be effected to the respondents/defendants to the suit. Rule-20 of the Order describe the way of substituted service, clause (c) is in respect of publication in press. While sub-rule (2) of Rule 20 provides the effect of the substituted service that it shall be as effectual if had been made on the defendant personally. It is further provided therein that before making order for substituted service the court must be satisfied that the defendant is keeping out of the way for purpose of avoiding service or due to any other reason. In present case, as per record, after institution of suit notices were issued for the appellants/ defendants several times, while through order dated 10-4-1997 it was ordered that notices be issued through publication. On effecting of publication through order dated 20-5-1997 the appellants defendants were proceeded against ex parte, whereafter, suit was decreed through order dated 16-9-1997. The perusal of papers placed on record by the respondent not disputed by the appellants revealed that despite the fact that litigation was pending between the parties at Guiranwala, while the appellants filed a suit for permanent injunction in year 1996 contested by the respondent. Thereafter, he filed second suit for rendition of accounts in year 2000, which were remained pending between the parties before courts at Gujranwala and decided thereafter. The copies of the plaint pertaining to said suits, placed on record, reveals that the same address is mentioned therein as mentioned in title of the plaint pertaining to suit filed by the respondent before the trial Court at Quetta. It is further to be noted that after obtaining the decree the respondent got transferred the application for execution of decree to the District Judge, Gujranwala, which is still pending there. Despite the above mentioned facts the appellants showed their ignorance about pendency of suit and passing of decree against them by the trial Court. But it is evident from record that the appellants filed objections on execution application, which were decided and rejected by the court of Civil Judge Gujranwala through order. Dated 11-11-1999 the court which is executing the decree. Appeal was also preferred by them. Further, filing of several applications by them before the court executing the decree at Gujranwala, in all these years is also not denied. These facts shows that they have full knowledge, about the decree and order made against them by the trial Court, despite the same they filed application for setting aside of ex parte order and decree in 2001 before the court of Senior Civil Judge-I, Quetta with a considerable delay, which was decided through order dated 11-12-2001, which is impugned in Present appeal.
12. ' As per Article-164 Limitation Act the provided period for filing an application to set aside a decree passed ex parte is 30 days. The time is to be computed from the date of decree. But in case where the summons are not duly served, the date when the applicant has knowledge of the decree the time starts to run. In present case also it is plea of the appellants ' that they have not been properly served, while the decree. Has been obtained at their back. But contrary to their own plea taken before the trial Court they approached the court, to whom the execution proceedings were transferred, by not only filing objection petition, but they repeatedly filed several applications before the court on different stages of execution proceedings since 1999 till 2001. It is further apparent from perusal of Order dated 11-11-1999 of Civil Judge, Gujranwala that the appellants clearly referred to the proceedings held in the trial Court at Quetta. All these facts established that the appellants got the knowledge about the order and decree made against them surely in the year 1999, 1 despite having the knowledge they failed to approach the trial Court for setting aside of ex parte order and decree, in time, rather they tried to only obstruct the proceedings pending for execution of the decree at Gujranwala. The appellants in present appeal though have asserted that they came to know about the ex parte order and decree when they were served through notice by the Civil Judge, Gujranwala in execution of decree, but they have not mentioned any specific date or even year when said notice was serve upon them and they get knowledge- about the same, which, shows their mala fide.
13. ' The second contention raised by the appellants is to the effect that the order and decree has been obtained through fraud and misrepresentation, as such their contention was required to be established through evidence, but the trial Court without calling for the evidence decided the application in haphazard manner, which is illegal, thus required to be set aside. Though the plea of fraud and misrepresentation cannot be established without calling of evidence, but in order to arrive to the stage of evidence the party alleging the same has to establish prima facie the fraud committed by the other party. Mere assertion does not require calling of evidence. In present case though the appellants asserted that the respondent/plaintiff obtained the decree through fraud and misrepresentation, but their only contention is that the trial Court without waiting for the report about service from Civil Judge, Gujranwala ordered for effecting of service through publication in newspaper, which was effected in Daily Pakistan, which has no circulation in Gujranwala. It has been noted and mentioned above that the address of appellants given in title of the plaint is the same as mentioned in the title of the suits, applications and even objection petition filed by the appellants in courts at Gujranwala. This is never the case of the appellants that their wrong address was provided to the trial Court, due to which they were not served properly, as such providing, of wrong address amounts to fraud and misrepresentation, thus the decree is liable to be set aside. They further did not deny the facts' of their participation in proceedings pending before Civil Judge, Gujranwala for execution of decree. They further not denied filing of suits and miscellaneous applications before the courts at Gujranwala, in all these years, which clearly shows that they were in full knowledge of order and decree made against them in year 1997 by the trial Court, but they instead of approaching the trial Court thereby seeking setting aside of ex parte decree they consumed their energies in obstructing the proceedings pending for execution of decree passed in favour of the respondent, which was neither legal nor proper. In the circumstances there was no occasion for the trial Court to call for the evidence of any sort in order to establish plea of fraud or misrepresentation, as it also amounts to disapplication of law.
14. ' In view of above discussion the appellants have completely failed to make out any case in their favour. The trial Court has rightly assessed the material and comes to the right conclusion, which does not require any interference by this court. No grounds are established by the appellants on basis of which their time barred application for setting aside of ex parte order and decree can be accepted while condoning the delay occurred in filing of the same. The conduct of the appellants are highly objectionable, they deliberately avoided to appear before the trial Court and they tried and succeeded to delay the execution of decree in all these years, which is unfortunate.
15. The appeal is dismissed with costs throughout in favour of the respondent. The impugned orders dated 11-12-2001, 16-9-1997 and 20-5-1997 of Senior Civil Jude-I, Quetta are hereby upheld.