MUHAMMAD YOUNIS THAHEEM, J.---Through the instant appeal, the appellant Jadoon Khan has assailed the judgment/order dated 25.01.2014 passed by learned Civil Judge/ Illaqa Qazi-II, Kabal Swat, whereby application of the appellant for setting aside of ex-parte decrees has been dismissed.
2. Brief but necessary facts giving rise to the instant appeal are that respondents Nos. 1 to 3 instituted a recovery suit against the defendant/ appellant and respondent No, 4, on the basis of Iqrar-Nama/agreement dated 01.12.2010. The defendants were summoned, but they did not appear before the Court, so, after publication in Daily Newspaper "Ausaf' and on their nonappearance, they were placed ex-parte by the learned trial Court on 20.02.2012. Thereafter, plaintiffs/respondents led expert evidence and on conclusion of trial as well as hearing ex-parte arguments, ex-parte decree was passed by the learned trial Court in favour of the plaintiffs/respondents vide order dated 23.5.2012. The decree-holder filed an execution petition, but since the judgment-debtors/defendants were not available, therefore, the same execution petition was consigned to record room. On 16.9.2013, the respondents/plaintiffs moved another execution petition and during the course of proceedings, the appellant Jadoon Khan was arrested on 15.9.2013. The appellant filed an application for setting aside of ex-parte decree on 30.10.2013 (however, it has been inadvertently typed as 04.11.2013 in the judgment of trial court and be read as 30.10.2013) and same application was dismissed by the learned trial Court through impugned order dated 25.01.2014 on the point of limitation that it was filed after the delay of 43 days. Hence, instant regular first appeal.
3. Learned counsel for the appellant argued that the appellant is the resident of Gabral Post Office Kahela, Tehsil Dasoo, District Khoistan, whereas in the plaint his address has been malafidely given by the respondents as Gul Kada No, 2 Mingora Swat, in order to obtain ex-parte decree in their favour, so, in the plaint no correct address for purpose of serving summons in view of Order V of C.P.C. was given and entire service through summons or publication shown in the record had been effected on wrong address; further argued that the appellant being not so literate person had no knowledge of the said recovery' suit, publication, ex-parte proceedings and decree, therefore, had been condemned un-heard; he added that as the service of summons on wrong address would not be termed as proper service in the eye of law and after wrong and illegal service ex-parte proceedings were held and thereafter whole structure was built upon a wrong address culminated into void order resulting into an ex-parte decree, so, the clog of limitation would not run against void order. He further added that decisions on merits were cherished goals of law and technicalities thwarting dispensation of justice should be discouraged in order to promote justice.
He further prayed that exparte proceedings and ex-parte decree be set aside and the case be remitted back to the learned trial Court for decision afresh by giving appellant an opportunity to submit his written statement and decision of lis on merits according to him.
4. As against that, learned counsel for the respondents while supporting the impugned order contended that application for setting aside of ex-parte decree was filed after a delay of 39 days of active knowledge from the date of arrest i,e, on 15.09.2013, meaning thereby, that he got knowledge of the ex parte decree from said date, so, in view of Article 164 of the Limitation Act, 30- days have been provided for filing of such kind of application and petitioner had filed application for setting aside of ex-parte decree beyond prescribed period of limitation and no application for condonation of delay has been filed along with the main appeal, thus, the findings of learned trial Court in respect of dismissal of application of the appellant on the point of limitation are in accordance with law, to which no exception could be made out, need .no interference, thus, the appeal may kindly be dismissed.
5. Arguments of learned counsel for the parties heard and requisitioned record perused with their able assistance.
6. Perusal of the record would reveal that initially Abdul Karam and two others filed recovery suit bearing No, 37/1 against defendants Muhammad Ibrahim and others on the basis of an agreement/Iqrarnama dated 01.12.2010. The defendants initially were summoned vide order sheet No, 03 dated 22.12.2011, vide next order sheet No, 04 dated 10.01.2012 notices were not served upon the defendants and it was directed that summons be served on the pointation of plaintiff No, 2, vide order sheet No, 5 dated 27.01.20/2, the same exercise was repeated due to note-reader with direction that the summonses were directed to be served on the pointation of plaintiff No,
2. On the next date vide order sheet No, 6 dated 02.02.2012, it transpires, that summons returned unserved and process server submitted his report that defendant No, 1 has changed his abode and had been migrated somewhere else, whereas service upon defendant No, 2 was directed to be made on the pointation of plaintiff No, 2, but he was not present there for pointation, so, it was directed to plaintiff No, 2 to submit fresh and correct address within three (3) days and thereafter summonses were directed to be served and case was posted for 10.02.2012. It appears from the record that no such correct address and summonses are available on the case file.
7. While proceedings held on the next date of hearing i,e, 10.02.2012, the order sheet No, 7 manifests that Court's directions were not acted upon as neither fresh addresses of the defendants were submitted nor service on pointation of plaintiff No, 2 was made and plaintiff No, 2 despite had acted upon Court's direction moved an application for substituted service through publication in the Daily newspaper and that application without first applying the concrete provisions of law under Order V of the C.P.C. for service of summons with all due diligence was accepted by the trial Court and after publication in Daily "Ausaf', defendants vide order sheet No, 08 dated 20.02.2012 were placed ex-parte, resultantly, the ex-parte decree was passed vide order dated 23.5.2012.
8. From the perusal of the order sheets, it reveal that no effort was made by the learned trial Court to effect service of summons with all due diligence, which could have been made after obtaining correct addresses of the defendants, which gives a strong presumption that concrete provisions of law as envisaged under Order-V of the C.P.0 were bypassed before summoning the defendants through substituted service by publication.
9. As previous to publication no effort under the law for correct addresses, service in person with all due diligence and failure of recording of statement of process server under Order-V Rule 19 of C.P.0 the learned trial Court directly invoked the provisions of Order V Rule 20 i,e, service through a publication, which is an irregularity and acted contrary to law, as it is mandatory for administration of justice amongst the parties to do the justice according to the mandate of law under ibid Order V of the C.P.C. wherein basic principle of administration of justice "audi alteram partem" had been incorporated.
10. As no notice/summons was issued and served against the petitioner in compliance of referred order sheets and without deploying the other provisions of Order V of the C.P.C. i,e, seeking of a correct address or service on the pointation of plaintiff No, 2 and through a affixation in compliance of order sheets dated 10.01.2012, 27.01.2012 and 02.02.2012, the accepting the application for publication and after publication passed the order of exparte proceedings on 20.02.2012 and thereafter passed ex-parte decree on 23.5.2012 are against the law and void ab initio. The whole edifice built on such void order was bound to crumble down. Limitation would not run against void order, rather the same could be ignored and might not be allowed to stand there-against. Wisdom can be derived from judgment of Hon'ble Supreme Court of Pakistan titled as Muhammad Raz Khan v. Government of N. W.F.P. and another (PLD 1997 SC 397), wherein it is held:- "There is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Shaft v, Mushtaque Ahmad 1996 SCMR 865"
11. The learned Court below has misread and non-read the record pertaining to service of summons vide initial order sheets dated 10.01.2012, 27.01.2012 and 02.02.2012 and did not appreciate this significant legal aspect of the case, so had fallen into an illegality by rendering the impugned judgment/order. In the instant case allegedly the defendants were summoned, but they allegedly did not appear before the trial Court, so, after publication in daily newspaper "Ausaf', they were placed ex-parte by the trial Court on 20.2.2012 and on conclusion of ex-parte trial, ex-parte decree was passed in favour of the plaintiffs/respondents against the defendants on 23.5.2012. The respondents/ decree-holders filed execution petition, but it was consigned to record room due to non-availability of defendants. Thereafter, they filed another execution petition and during the course of proceedings the present appellant Jadoon Khan was arrested on 15.9.2013, so, he filed application for setting aside of an ex-parte decree on 30.10.2013 after about 39 days of getting knowledge of the ex-parte decree, which was dismissed by the trial Court vide impugned order dated 25.01.2014 on the sole ground of limitation by ignoring the provision of Order V of C.P.C.
12. It appears from the agreement/ krar-Nama dated 01.12.2010, Ex. PW-1 /2 that the address of the appellant was given as Gabral Kandayia, present address as Gul Kada No, 2 Mingora Swat, while in plaint the same address has been repeated but with some change, however, in other agreement dated 03.3.2011, Ex. PW-1/3, the address was shown as Kandiya District Kohistan, presently resident of Gul Kada, Mingora Swat and Gul Kada No, 2 did not appear, so, due to these ambiguities and wrong addresses given by the respondents/ plaintiffs on the referred deeds and in the plaint/suit the proper service of defendants/ appellants could not had been effected, as the appellant asserted in his application that he is the permanent resident of Gabral Kandia, and for the purpose of obtaining of this impugned ex-parte decree his address has been wrongly shown as Gul Kada No, 2 Mingora Swat.
13.As far as substituted service through publication in daily Newspaper "Ausaf' is concerned, it could not be termed as valid service in the present set of circumstances in the eye of law, especially when the judgment debtor/appellant Jadoon Khan is admittedly a rustic villager and educated only up to 8th Class, belongs to far-flung area of District Kohoistan that also on wrong address, so, there is also, a visible question mark over the credibility of substituted service through publication. Even otherwise, it is by now settled principle of law, that the plaintiff in order to seek relief from the Court of law must furnish proper and correct address of the party against whom he sought some relief and in case of non-mentioning of correct address, the liability would squarely lies upon the shoulder of plaintiff, as in the instant case, the plaintiffs had given wrong address of the defendants/appellants and despite direction by the Court avoided submitting of correct address so, presence of defendants before the Court could not had been procured under the due process of law and when the appellant after his release from jail got knowledge of the ex-parte decree moved an application for setting aside of the same ex-parte decree, which was dismissed by the trial Court vide impugned order on the touchstone of limitation.
14.Admittedly the appellant is resident of District Khoistan and had attended school up to 8th Class, so could not be considered to be well conversant about the said newspaper. In respect of substituted service through publication in newspaper, it was held by the Hon'ble Sindh High Court in case titled as State Life Insurance Corporation and 3 others v. Haji Abdul Ghani and 3 others"
(1986 M LD 1245 Karachi) as below:-- "Plea that publication--of notice in newspaper of which defendants were neither subscriber nor understood language thereof, could not be sustainable because of absence of such facts in affidavit submitted by the defendants."
15.Keeping in view the aforementioned guiding principles and record of the case file, this Court reaches to the conclusion that the learned trial Court has not properly appreciated the law on the subject, while dismissing the application of appellant for setting aside of an ex-parte decree on the point of limitation in light of H afore-mentioned dicta.
16. Thus, in wake of the above discussion, I allow this appeal by declaring whole proceedings regarding service of summons, ex-parte proceedings and exparte decree as void ab initio and set aside the impugned judgments/orders dated 20.02.2012 and 23.5.2012 of the learned trial court and case is remanded back to the learned trial Court with the direction to plaintiffs/respondents to file amended plaint by giving correct addresses of defendant/ appellant with adding direction that the case in hand being an old one be decided within a period of six (6) months positively. The trial Court is directed to proceed with the matter in the light of above observations by summoning the parties accordingly.