RAJA SAEED AKRAM KHAN, J. --- This appeal, with the leave of the Court, arises out of the judgment and decree passed by a learned single Judge in the High Court on 21.5.2009, whereby the judgment and decree of the District Judge and the Civil Judge, Mirpur, dated 27.6.2006 and 22.8.2005 respectively, have been set aside and ex parte decree passed in favour of the appellant on 31.8.1998 was recalled.
2. The brief facts of the case are that Muhammad Khalid, appellant herein, filed a declaratory suit in the Court of Civil Judge, Mirpur, on 12.4.1997 claiming therein that he being legal heir of Maneu was entitled to get inherited share from land measuring 4 kanals, 15 marlas under survey No. 265 situate in village Bajjar, Tehsil and District Mirpur who has been illegally deprived of the said share through mutation No. 437 attested on 28.5.1985: After necessary proceedings, an ex parte decree was passed on 31.8.1998 by the Civil Judge, Mirpur. Respondents No. 1 to 4 filed an application for the cancellation of ex parte decree passed on 31.8.1998 in the Court of Civil Judge, Mirpur. The appellant, herein, filed objections and no replication was filed by the respondents. The Trial Court framed issues in the light of respective .Pleadings of the parties and allowed them to lead evidence. Finally the application was dismissed on 22.8.2005. Being aggrieved from the order of the Trial Court, an appeal was filed before the District Judge, Mirpur, which was dismissed vide judgment dated 27.6.2006. An appeal was filed in the High Court by the respondents which was accepted and the judgments passed by the Civil Judge and the District Judge were set aside and the ex pa-rte decree passed on 31.8.1999 was recalled and the suit was restored. Hence, this appeal.
3. Mr. Muhammad Riaz Tabassum, the learned counsel for the appellant, has submitted that the High Court erred in law while disturbing the concurrent findings recorded by the two Courts bellow in an illegal manner. He has argued that the findings of the High Court are against the law and facts. The Court erred in law by holding that the report of Process Server was not supported by his affidavit, whereas in the record the statement of. Process Server on oath is available which has totally been ignored by the High Court while recalling the ex parte decree which was passed in favour of the appellant. He further urged that Process Server has also reported that Mukhtar Bi, Zubaida Begum and Manzoor Begum are living in Pakistan whereas Khadija Begum, Muhammad Nawab and Muhammad lqbal had gone to United Kingdom. He further argued that the High Court has failed to take into consideration that all the modes of service were duly adopted before passing the ex parte decree. He argued that it is admitted position that the service upon respondents was effected through newspaper. He further argued that an application for setting aside ex de decree was moved by the respondents on' 2.3.1999. The appellant contested the application by filing objections which were supported by an affidavit. It is also admitted that neither replication was filed nor the affidavit was refuted. The learned counsel lastly contended that in the light of pleadings, issues were framed by the Trial Court on 3.11.1999 and the parties led their evidence in support of their respective claims and after taking into consideration all the relevant record, the application was dismissed. The High Court has also erred in law to appreciate this fact that nothing was brought on the record regarding the fraud or misrepresentation by any witness of the respondents. The High Court has illegally held that no limitation is provided for filing application for setting aside an ex parte decree based on fraud or misrepresentation because to prove fraud and misrepresentation very cogent and strong evidence was required which was lacking in the instant case. Therefore, the High Court was not justified to hold that no limitation is provided for making application for setting aside the ex parte decree obtained through fraud and misrepresentation.
4. On the other hand, Ch. Muhammad Anwar, the learned counsel for respondents No. 1 to 4, has strongly supported the judgment of the High Court while submitting that the same has been passed strictly in accordance with law. No illegality or irregularity has been committed by the High Court. He further argued that the Trial Court and the first Appellate Court failed to consider that the application was within time when it is settled principle of law that limitation starts from the date of knowledge. He submitted that respondents were not party to the proceedings, therefore, the High Court has rightly held that no limitation can run against them. He lastly argued that the documents were not exhibited in evidence although the same are available on the record but reliance was not placed on those documents.
5. We have heard the arguments of the parties and also perused the record made available minutely. From the record it reveals that Noor Begum is shown daughter of Jamal Din whereas she claims to be the daughter of Qaim Din. She was proceeded against an ex parte on the report of Process Server that she refused to receive the summons. The High Court has taken care of this fact and for its satisfaction original record was examined. On the basis of that record, the finding has been given that the version of Noor Begum seems to be correct. For our own satisfaction we again examined the original record from which it transpires that the position is the same, i.e., Noor Begum is shown as daughter of Jamal Din whereas she claims to be the daughter. Of Qaim Din. It further reveals that on the back of summons, the statement of Process Server is,there where, he has reported that Noor Begum refused to receive the summons. On the basis of that report the Trial Court passed the ex parte order against her while treating it as service upon her whereas the law on the subject is otherwise. The Court was under obligation to examine the Process Server under rule 19 of Order V, Code of Civil Procedure. It would be advantageous to reproduce rule 19 of Order V, C.P.C. Which reads as under:--- "19. Examination of serving officer. --- Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been 'so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit."
A glance reading of the above-quoted rule provides that it is incumbent upon the Court to record declaration of due service prior to proceeding ex parte and it was also the duty of the Court to examine the Process Server which has not been done in this case. When a specific stand is taken by Noor Begum that she is the daughter of Qaim Din, no further effort has been made to trace out the true lady for effecting the service upon her. The High Court has rightly observed this illegality while holding that the service was not effected upon her. Therefore, the proceedings against Noor Begum were unwarranted under law. Reliance is placed on a case reported as National Bank of Pakistan v. Bawany Industries Ltd. And 6 others [1989 CLC 363], wherein it has been held at page 368 as under:--- "8. A perusal of the above-quoted paras indicates that the grounds mentioned were that the summons were issued several times inter alia for service on defendant No, 7 but returned unserved each time and that defendants Nos. 2, 4 to 7 were not being traced or were avoiding the service of summons. It is true that summons were issued several times as pointed out by Mr. Mansoorul Arfin but it is not proved that respondent No. 7 was avoiding the service of the summons as already observed hereinabove. We are unable to agree with the contention of Mr. I.H. Zaidi that in case a defendant leaves Pakistan, the plaintiff cannot get the summons served by substituted service through Press. In a fit case, the publication can be allowed. However, in the present case as we have held on the basis of the contents of para 6 of the counter-affidavit that the factum that the respondent No. 7 had left Pakistan in July, 1978 for Canada was within the knowledge of the appellant, efforts should have been made to have ascertained the address and to send the summons at the foreign address........................ In the above application for substituted service and also in the supporting affidavit it has not been averred that any such efforts were made. We are, therefore, of the view that the learned single Judge on the basis of the facts of the present case could hold service had and could set aside the aforesaid ex parte order and ex parte judgment/decree."
Similar view prevailed in a case reported as Major Taj-ud-Din and others v. Muhammad Akhtar and others [1989 CLC 2183).
6. Now we advert to the next question regarding service upon the remaining respondents. The report was made that they are living somewhere in Pakistan. On this report the order of substituted service was passed and the mode of service through proclamation in the newspaper was adopted.
The mode of substituted service has been provided under Order V, rule 20 of the Code of Civil Procedure. We have examined the relevant rule. It would be appropriate to reproduce rule 20 of Order V, C.P.C. Which reads as under:-- "20. Substituted service.--- (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by---
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or
(c) urgent mail service or public courier services; or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously.
(2) Effect of substituted service.--- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed.--- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require which shall not ordinarily exceed fifteen days."
After examining the above-referred rule, it appears that a number of modes of substituted service has been provided and the discretion lies with the Court to adopt all or any of the aforesaid manners and the modes of service simultaneously. It is condition precedent that if a Court is satisfied that the service cannot be effected in ordinary manner, the same can be ordered for substituted service under above-said rule. But before passing the said order, the Court has to comply with the conditions attached to the above-mentioned rule strictly.
7. Admittedly. The proclamation was published in a newspaper which has no wide circulation.
Therefore, the High Court has rightly observed that ex parte proceedings against the respondents were ab initio void, hence, the superstructure built on a void base has to fall. There is nothing on the record that the Trial Court has satisfied itself that in ordinary manner, the service on the respondents could not be effected. From the order of the Trial Court we could not find any such satisfaction or compliance of the relevant provisions of law, therefore, we feel that the substituted service has not been made under law. In this regard reliance can be placed on the case reported as Javed Raza v. Razi Ahmad and another [1991 M LD 2602] in which it has observed as under:- "From the perusal of record, it is evident that the defendants were no more living at the address given in the plaint. At the same time neither the bailiffs report nor the postman's report state anywhere that the defendants were keeping out of the way for purpose of avoiding service on them. The plaintiff never cared to accompany the bailiff and his assertion that the defendants were avoiding service of summons was not supported by anything on record. It is not his case that for some other reason as contemplated under Order 5, rule 20, C.P.C. Summons could not be served on the defendants. The learned Additional Registrar while ordering service on the defendant by publication was unmindful of his earlier order dated 17.8.1988 in which direction was given to the plaintiff to supply fresh address of the defendants which was never supplied by him. No explanation was given by the plaintiff as to why he did not supply fresh address of the defendants. The plaintiff could have inquired from the said Abdul Qadir living in the house where the defendants were ,once living as to their new address but no effort was made by him in that direction. There was nothing either in the application under Order 5, rule 20, C.P.C. Or in the accompanying affidavit that the plaintiff does not know any other address of the said defendants.
No order for affixation of copy of summons was made at some conspicuous place in the Court house and/or upon some conspicuous part of the house, in which the defendant last resided as required under Order 5, Rule 20, C.P.C. Service by publication is an extraordinary mode of effecting service on a defendant and can only be resorted to when conditions warranting it exist and strict compliance is made of the provisions of Order 5, Rule 20, C.P.C. This is not so here."
19. Therefore, it cannot be deemed that the service was duly effected on the defendant under the aforesaid provisions of law.
9. The case of respondent No. 1, argued before this Court, has been that the substituted service was validly effected on the defendant as it was effected by publication of proclamation in a weekly newspaper, Mirpur. It is correct to suggest that substituted service was ordered by the learned Sub- Judge as envisaged under Rule 20 and proclamation was also published in due course of time, but the fact remains that the order pertaining to substituted service was defective as it did not fulfill the conditions preceding to issuance of directions of substituted service. There is no mention in the order that the Court was satisfied that the defendant was keeping out of the way for the purpose of avoiding the service or that for any other sufficient reason, the summons could not be served ordinarily on the defendant, by affixing copy of the summons on the house of the defendant or some other conspicuous place in the Court, house etc. In absence of any such satisfaction on relevant conditions laid down under Rule 20, the order cannot be protected. It is, therefore, held that no due service was made on the defendant in this case."
Similarly in a case reported as Mst. Azizan and another v. Mehr Din [1993 CLC 1187], it was laid down as under:--- "A perusal of the afore-mentioned provisions of the Civil Procedure Code clearly shows that the service of the defendants in a suit is to be effected in person."
It was further observed as under:- "Learned Trial Court considered the above service as sufficient and proceeded against the petitioners ex parte as they were absent. It is clear from the above mode of effecting service upon the petitioners that the learned Trial Court did not follow the law while directing substituted service.
The report of the previous summons having not been attested by the two witnesses and being not supported by an affidavit on Oath, could not have been formed basis for directing substituted service without examining the process-server." '
8. Another question which was involved in this case is, what is the effect of the attestation of mutation which was sanctioned at a later stage. It is celebrated principle of law that immediately after the death of a person the inheritance becomes open. Therefore, the High Court was justified to hold that the attestation of mutation at a later stage does not deprive the legal heirs of the right of inheritance. It is admitted position that the respondents were not party in the earlier proceedings, therefore no limitation funs against a person who was not a party to the proceedings which adversely affected his rights as has been held in a case titled Muhammad Sultan v. Sardar Begum and others [2005 SCR 80] in which it has been observed as under:- "It is settled principle of law that no limitation runs against a person who was not a party to the proceedings which adversely affect his rights. The question of limitation is applicable against that party only who has contested the claim and despite knowledge of an adverse order does not challenge the order well in time in the Court of competent jurisdiction. The question of condonation of delay or extension of time, therefore, did not arise in the case." .