' SHAHID WAHEED, J.---The petitioners through this civil revision under section 115, C.P.C. Have called in question the order dated 4-6-2011 passed by the learned Civil Judge, Ist Class, Faisalabad, whereby their two applications; one for recalling of order dated 24-1-2007 through which ex parte proceedings were initiated against them; and, second under section 5 of the Limitation Act seeking condonation of delay were dismissed.
2. Briefly, the facts of the case are that Muhammad Saleem Bhatti (respondent No,1) instituted a suit against Pervez Ahmed (respondent No,2) for possession of the suit property through specific performance of agreement to sell dated 18-7-2003. During pendency of the suit respondent No, 1/plaintiff filed an application under Order I Rule 10, C.P.C. For impleading Ijaz Ahmed (respondent No,3) and the legal heirs of Muhammad Yasin (the present petitioners) as defendants in the suit.
Respondent No,2, Pervaiz Ahmed, resisted this application by filing a reply. The learned Trial Court vide order dated 15-6-2006 allowed the application and impleaded Ijaz Ahmed and the present petitioners as defendants Nos.2 and 3-a to 3-g respectively in the suit. Thereafter, the learned Trial Court vide order dated 14-7-2006 issued summons to the newly added defendants through registered post A.D. And adjourned the case to 19-9-2006. Respondent No, 1/plaintiff did not deposit the process fee and resultantly on 19-9-2006 the learned Trial Court again issued summons to the petitioners and Ijaz Ahmed through registered post A.D. And fixed the case for 19-10-2006. The service of summons could not be effected due to incomplete address. Notwithstanding the above report of the Process Server, the learned Trial Court, vide order dated 2-11-2006 directed that the service of summons on the petitioners and respondent No,3 be effected by publication in Daily Express. Consequent upon publication of summons, the learned Trial Court initiated ex parte proceedings against the petitioners vide order dated 24-1-2007.
3. After getting knowledge of ex parte proceedings, the petitioners on 18-1-2011 filed an application before the learned Trial Court for setting aside order dated 24-1-2007 on the ground that they had not received any notice or summons through any mode. The petitioners also filed an application under section 5 of the Limitation Act seeking condonation of delay in filing the application for setting aside the ex parte order. Respondent No,1, Muhammad Saleem Bhatti, resisted the application by filing reply to the application. The learned Trial. Court vide order dated 4-6-2011 dismissed both the applications; hence this petition.
4. The question involved in this petition is as to whether the ex parte proceedings initiated against the petitioners vide order dated 24-1-2007 was valid in the eye of law. The perusal of the order sheet maintained by the learned Trial Court shows that the petitioners along with respondent No,3 were impleaded as defendants in the suit filed by respondent No,1 vide order dated 15-6-2006.
After filing of amended plaint by respondent No, 1, the learned Trial Court vide order dated 14-7- 2006 issued summons to the petitioners and respondent No,3 through registered post, acknowledgement due, and adjourned the case to 19-9-2006. The respondent No,1/plaintiff did not deposit the process fee and resultantly the learned Trial Court vide order dated 19-9-2006 again issued summons to the petitioners through registered post A.D. On the next date of hearing, the Process Server submitted report that service could not be effected due to incomplete address. The learned Trial Court, without getting complete address of the newly added defendants/ petitioners and giving any reason, passed order dated 2-11-2006 for effecting service of summons on the petitioners by publication in "Daily Express". On receipt of publication of proclamation the learned Trial Court initiated ex parte proceedings against the petitioners vide order dated 24-1-2007. The order impugned in this petition unfolds another startling fact that substituted service of summons was effected by publication in Daily Soorat-e-Haal instead of Daily Express. This flaw also escaped from the notice of the learned Trial Court while initiating ex parte proceedings against the petitioners vide order dated 24-1-2007. The order dated 2-11-2006 and substituted service of summons was not valid for the following reasons: Firstly, Rule 20 of Order V C.P.C. lays down that when 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 may order that the substituted service may be effected on him in the manner as the Court thinks fit. In this context, the ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in Rules 9 to 17 A of Order V C.P.C. Under these provisions the service could be effected on the defendant personally, by registered post, through his authorized agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in Rule 17 that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no person on whom service can be made, the serving office shall affix a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
It is clearly borne out from the record of the instant case that no resort to these ordinary ways of service of the summons on the defendant/present petitioners was at all made. In these circumstances, the substituted service was bad in law and this view finds support from the case of Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmad Khan (2001 SCM R 99) and Syed Muhammad Anwar v.
Sheikh Abdul Haq (1985 SCM R 1228). Secondly, the plaintiff/respondent No,1 obtained order from the learned Trial Court for effecting substituted service by wilful suppression of petitioners'/defendants' correct addresses and thus as per principle laid down by the honourable Supreme Court of Pakistan in the case of Muhammad Aslam v. Addl. District Judge, Rawalpindi and others (1979 SCM R 85) played fraud on the learned Trial Court. Thirdly, in the absence of issuance of summons at correct addresses, order of substituted service as per principle laid down in the case of Muhammad Younis and 4 others v. Additional District Judge, Jhelum. And 2 others (2006 M LD 963) was nullity in the eye of law. Fourthly, the publication of summons was not made as per order dated 2-11-2006. The learned Trial Court directed that the service of summons be effected by publication in Daily Express whereas it was published in Daily Soorat-e-Haal. Thus, the order for effecting substituted service of the petitioners by means of publication of proclamation in the newspaper loses the aura of validity and cdnsequently the substituted service cannot be treated as effective for the purpose of proceeding ex parte against them. The learned Trial Court by ordering substituted service of the petitioners without justifiable legal basis committed material irregularity. The summons could not be said to have been served upon the petitioners. Therefore, the terminus a quo for filing application for setting aside ex parte proceedings was the date of acquisition of knowledge of the order. It is the case of the petitioners that they came to know about the ex parte proceedings three days ago before filing the application. Thus, in these circumstances the application filed by the petitioners was well within time.
5. In view of above, this petition is allowed; order dated 4-6-2011 passed by the learned Civil Judge, 1st Class, Faisalabad, is set aside and resultantly, the application filed by the petitioners for recalling of order dated 24-1-2007 whereby ex parte proceedings were initiated against them, is accepted as prayed for. No order as to costs.