AMIN-UD-DIN KHAN, J. --- This writ petition has been filed against the order of Addl. District Judge, Bahawalnagar dated 01.10.2004, whereby revision petition filed by the petitioners was dismissed and order dated 21.02.2002 passed by .The Civil Judge, Bahawalnagar, whereby an application for setting aside ex parte decree filed by the respondents was accepted.
2. Brief facts of this case are that one Niaz Ahmad on 18.03.1987 filed a suit for specific performance on the basis of agreement to sell dated 04.02.1986 against respondents Nos. 7 and 8 (original owners) and respondents Nos. 3 to 6 (subsequent purchasers). The suit was ex parte decreed on 28.10.1987 and after ex parte decree, the petitioners Muhammad Sadiq, etc. Purchased the suit property. Further facts as submitted by learned counsel for the petitioners are that after impugned agreement, the owners further transferred the suit property in favour of defendants Nos. 3 to 6 through mutation of sale No. 16 sanctioned on 20.03.1986. On 27.12.1993 the application was filed by Ahmad Yar, etc. On the ground that neither they nor the original owners were ever served in the suit, therefore, ex parte proceedings and ex parte decree is absolutely against the facts and law. The decree-holders and Muhammad Sadiq, etc. Contested that application. The Trial Court vide order dated 21.02.2002, accepted the application and set aside ex parte decree and restored the suit. Aggrieved by that order, the petitioners filed 'revision petition before the District Judge, Bahawalnagar, which was finally heard and decided by the Addl. District Judge, Bahawalnagar vide order dated 01.10.2004 and the same was dismissed. Hence, this writ petition.
3. Learned counsel for the petitioners states that the Courts below have not properly appreciated the evidence available on the record; that the application for setting aside ex parte decree was filed long after the prescribed period of limitation, therefore, it was not maintainable. Further states that both the Courts below fell in error while accepting the application for setting aside ex parte decree and dismissing the revision petition filed by the petitioners.
4. On the other hand, learned counsel for the respondents relying upon "PLD 1985 Supreme Court 131 Noor Muhammad v. Sarwar Khan and 2 others" states that writ petition is not competent against the impugned orders passed by both the Courts below, as the Courts below have exercised jurisdiction vested in them by law. Further states that it is clear cut evidence available on the record that without observing the legal formalities substituted service was ordered, which the Trial Court was not 'competent to order for the substituted service, till the time Court was satisfied that the service of defendants is not possible through ordinary mode or the defendants are intentionally avoiding from service. Learned counsel for the respondents referred the findings of Courts below that the Process Server reported that at the given address which is incomplete, the defendants are not available, therefore, a complete address is required. Further states that even after that all the alleged summons and notices were sent on the same address and no new address or complete address was given. Lastly states that application for setting aside ex parte decree has been filed just after the knowledge of ex parte decree, therefore, it was within the limitation prescribed by law.
5. I have heard the arguments of learned counsel for the parties at full length and also gone through the record with their able assistance.
6. No doubt, while exercising the Constitutiona jurisdiction the factual controversy cannot be gone into and new interpretation of evidence other than the interpretatio Courts below have already interpreted, is not permissible There is clear cut evidence available on the file that befor: the order for substituted service, the defendants were neve served through ordinary mode or it is not on the record tha they ever avoided from service of summons. From th record it is clear that for affixation of copy of summon at th conspicuous part of house and thereafter publication in th Press has been ordered in clear violation of the condition prescribed under Order 5, Rule 20 of the C.P.C. Till the tim a Court reaches to a conclusion that a person is intentionall avoiding from service of summons or through ordinary mod service of summons is not possible only then substitute service can be ordered, that too after full care and caution. Is a fundamental principle that one should not b condemned unheard. Both the Courts below reached to right conclusion by scanning the evidence on record .While setting aside the ex parte. Decree. Learned counsel for the petitioners failed to show any jurisdictional defect in the orders passed by the Courts below impugned in this writ petition:
7. In the light of case-law cited supra by learned counsel for the respondents, no case of interference by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been made out. In this view of the matter, I see no illegality or infirmity or jurisdictional defect in the impugned orders passed by the Courts below. Resultantly, this writ petition having no merits is dismissed with costs. .