Muhammad Azam Khan, C.J.--Tasadduq Hussain Shah, plaintiff-appellant, filed a suit in the Court of Sub-Judge Sehensa on 19.8.1994, for declaration against Punnu Khan, Mehr Din and others, respondents herein, for cancellation of the sale-deed dated 9.5.1968 and decree dated 26.5.1969 passed by the Sub-Judge Sehensa the strength of said sale-deed. The defendants, respondents herein, were proceeded ex-parte, however, the suit was dismissed on 28.9.1994. Dissatisfied, the appellant filed an appeal in the Court of District Judge Kotli. The respondents were proceeded ex- parte and thereafter an ex-parte decree was passed in favour of the plaintiff-appellant. After getting the knowledge, Respondent No, 1 filed an application for setting aside the decree on 23.6.2004. It was alleged that the applicants, defendants, are the owners of land in village Dhalyot, Tehsil Sehensa. They have temporarily migrated to Tehsil Kahuta, District Rawalpindi and now they are residing there since long. The plaintiff, by practicing fraud, furnished incorrect address of the applicants and got the ex-parte proceedings recorded, on the basis of which ex-parte decree was passed. The application was entrusted to the Additional District Judge Sehensa, who, after necessary proceedings, dismissed the application on 10.8.2005. The respondents herein filed an appeal in the High Court. A learned Single Judge in the High Court accepted the appeal on 28.9.2013, set aside the judgment and decree passed by the Additional District Judge Sehensa and remanded the case to the District Judge for deciding the appeal after hearing the parties within a period of six months, hence this appeal by leave of the Court.
2. Sh. Masood Iqbal, advocate, counsel for the appellant, argued that the judgment of the High Court is against law and the record. The respondents .Were properly served upon. Despite service they failed to appear in the Court and thereafter the first appellate Court correctly recorded ex- parte proceedings against them. The application, for setting aside the ex-parte decree was filed after a period of more than six years. It was hopelessly time barred and merited dismissal. The learned counsel referred to and relied upon the cases reported as Naseebullah vs. Mumtaz Khan & others [1993 SCR 44] and Muhammad Ilyas & others vs. Azizur Rehman & others [1995 SCR 268].
' In the case reported as Naseebullah vs. Mumtaz Khan & others [1993 SCR 44] it was observed by this Court that the bar of limitation cannot be ignored in all the cases simply because an order is found to be void ab initio.
' In the case reported as Muhammad Ilyas & others vs. Azizur. Rehman & others [1995 SCR 268], it has been observed that when an ex-parte decree is passed against a defendant, he is entitled to seek remedy by filing an application under Order IX, Rule 13, CPC, for setting aside the ex-parte decree within thirty days from the date of decree or from the date of knowledge. He may prefer an appeal or may seek review or may institute a suit on the ground of fraud.
3. While controverting the arguments of the counsel for the appellant, Ch. Muhammad Reaz Alam, advocate, counsel for Respondent No, 1, argued that no proper service was affected upon the respondents by the first appellate Court and the provisions of Order V, Rule 19, CPC, were not complied with. As soon as the respondents attained knowledge of the ex-parte decree, they filed an application for setting aside the same. The learned counsel relied upon an unreported judgment of this Court recorded in the case titled Shaukat All Shah vs. Met. Kausar Fatima & others (Civil Appeal No, 105/2013, decided on 25.6.2014).
' It was observed by this Court in Shaukat Ali's case, referred to by the counsel for the respondent, that the mode adopted by the Court for ordering the substituted service, ex-parte order and thereafter passing ex-parte decree is against the provisions contained in the Civil Procedure Code.
The High Court correctly passed the order after examining the whole record.
4. We have heard the learned counsel for the parties and perused the record carefully.
5. A perusal of the record of Civil Appeal No, 115/1994 filed by Syed Tasadduq Hussain Shah against the respondents, herein, from the judgment of Sub-Judge Sehensa dated 28.9.1994, reveals that the appeal was filed on 13.10.1994. The appellate Court ordered for summoning the respondents. A notice was sent to Punnu Khan and Mehr Din sons of Dheru on 18.2.1995. The process server reported on 20.2.1995 that Respondent No, 1 is out of the country and Respondent No, 2 is residing in Pakistan. The District Judge on 3.4.1995 ordered for the substituted service and on 2L5.1995, ex- parte proceedings were ordered against the respondents.
6. Rule 17 of Order V,, CPC, provides that when the serving officer cannot find the defendant and there is no one to accept service of summons on his behalf, he shall affix a copy of the summons on the outer door of the house where the defendant ordinarily resides and return the original with a report that he has so affixed the copy with the names and addresses of the witnesses. Rule 19 of Order V, CPC, provides that when the summons is returned under Rule 17, the Court shall, if the report 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. When the Court is satisfied that there is a reason to believe that the defendant is avoiding the service or that for any other reason the summons cannot be served in the ordinary way, then the Court shall order for substituted service in the manner provided in. Rule 20 of Order V, CPC. The provisions of Rules 17 to 20 of Order V, CPC, have to be complied with in all circumstances. It is enjoined upon the Court under Order V, Rule 19, CPC, to record the statement of the process server, who returned the summons without service before passing the order for substituted service. We are fortified in our view by the case law referred to by the counsel for the respondent, i,e, a recent judgment recorded in the case titled Shaukat Ali Shah vs. Mst. Kausar Fatima & others (Civil Appeal No, 105/201.3, decided on 25.6.2014), wherein it has been observed as under: "7. Rule 17 of the Order V, CPC, provides that where the defendant or his authorized agent is not available and summons or service cannot be made upon the defendant, the serving officer shall affix a copy of the same at the outer door of the defendant's house or some other conspicuous place and return the original summons to the Court with the said report. The Court shall examine such serving officer and after recording his statement, shall order for substituted service under Rule 20(1)(e) of Order V, CPC. The mode adopted by the Court for ordering the substituted service and passing the ex parte, order and thereafter passing ex-parte decree is against the provisions contained in the Civil Procedure Code. The High Court correctly passed the order after examining the whole record. There is no illegality in the judgment of the High Court. The appeal merits dismissal. The same is dismissed with no order as to the costs."
' In the case reported as Nouroz Khan v. Haji Qadoor [2005 SCM R 1877], it was observed as under: "....We having gone through the report of the process-server and, statement made by him before the Court, find that in the matter of service of summons, the requirement of law was not fulfilled and therefore, taking, no exception to the conclusion of learned Judge in the High Court, hold that service of summons, in departure to the provisions of Order V, Rules 18 and 19, C.P.C.., would not be considered proper service. Be that as it may, the question relating to the service of summons is a question of fact and this Court is not supposed to repeat and reverse the findings of High Court on such a question of fact."
' Similarly in the case reported as Syed Muhammad Anwar, Advocate vs. Sheikh Abdul Haq [1985 SCM R 1228], it was observed as under: "The Rule 20 of Order V of the Civil. Procedure Code 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 affected 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 High School reference to the provisions contained in Rules 9 to 17 of Order V of the Code.
Under these provisions the service could be effect 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 causing all due and reasonable diligence, cannot find the defendant, and there is no person on whim service can be made, the serving officer 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 or 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 burned out from the record that no report to this ordinary way of service of the summons on the defendant, his agent (if any) or the male member of his family was at all made in this case, in these circumstances, the learned Senior Judge on the 4th of February, 1974 was not justified in forming the opinion that no 'service on the defendant could be effected in the ordinary way. In his order dated 9-4-1978, the learned Senior Civil Judge while setting aside the ex parte decree though on somewhat different consideration, was of the opinion that there was no reason to conclude that the "summons could not be served on the defendant in the ordinary way" and, therefore, the substituted service effected on him was not justified in the circumstances of the case."
7. We have carefully perused the proclamation published in weekly "Kotli Times", which has been made basis for recording ex parte proceedings against the respondents. The said proclamation was issued by the District Judge on 10.3.1996 only against Banaras Khan and Khaliq Khan, sons of Allah Ditta but along, with them the respondent Mehr Din, his brother, Respondent No, 2, and Respondents No, 3 were also proceeded ex-parte on 21.5.1995. There is no other news-clipping on the record for proving the fact that the proclamation has also been published in any other newspaper. The learned District Judge ordered for ex-parte proceedings illegally against Respondents No, 1, 2, 3, 4 and 5, without affecting substituted service, which is not maintainable.
8. There appears no illegality in the impugned judgment of the High Court. The manner, in which the ex-parte' proceedings were ordered, is not warranted by law.
' The result of the above discussion is that the appeal merits dismissal, therefore, the same is hereby dismissed with no order as to the costs.