1. (a) This revision is directed against the order dated 26-7-1980 passed by the learned Additional District Judge, Karachi in Civil Miscellaneous Appeal No. 44/80.
The brief facts leading to the filing of the above appeal are that the applicant purchased the plot and the construction thereon, from one Muhammad Fazal through a sale-deed dated 20-9-1978. It may be observed that the property is situated in Mahmoodabad, which. Was an unauthorised settlement. After purchasing the above property, the applicant served a notice dated 24-4-1979 upon the respondent, calling upon him to hand over possession of the shop and also to any mesne profits in respect thereof. As the above notice did not bring any result, the applicant filed suit No. 960/79 in the Court of the learned XXIVth Civil Judge, IInd Class at Karachi for possession and mesne profits. It is the case of the applicant that in spite of his best efforts, the respondent could not be served with the summon by ordinary mode and, therefore, he filed an application on 2~-4- 1979 for substituted service under Order V, rule 20, C. P. C. The case was adjourned to 5-5-1979, in the meanwhile the summon appeared in the Daily English Evening Newspaper "Leader" dated 25- 4-1979. It further seems that as on 5-5-1979 nobody had appeared on behalf of the defendant, the learned Civil Judge ordered that the suit shall proceed ex parte and fixed the case for ex parte order. It further seems that on 14-5-1979 the learned Civil Judge on the basis of the affidavit in ex parte proof passed a decree for possession and mesne profits. It also seems that after obtaining the above judgment and decree the applicant filed Execution Application No. 16/79 (the date of which is not available with the learned counsel for the applicant). It further seems that even the notice of the above execution application was allegedly served by substituted service, namely, by publication. It is the case of the applicant that in pursuance of the writ of ejectment issued by the executing Court, he obtained possession of the shop on 23-9-1979. , It seems that the writ of ejectment was executed in the absence of the respondent.
(b) The respondent after coming to know about the execution of the writ of ejectment filed an application under Order IX, rule 13 read with Order XXI, rules 101 and 103, C. P. C. For setting aside the ex parte judgment and decree. In the support affidavit, it Nas averred by the respondent that Fazal, son of Barkat Ali earlier had filed an ejectment Application No. 1245/69 against him before the 3rd Rent Controller, at Karachi, which was dismissed on the ground that there was no relationship of landlord and tenant, and the appeal arising therefrom, namely, Rent Appeal No. 354/70 was also dismissed. After that said Mohammad Fazal filed a Regular Suit No. 1024/72, which was pending at the material time. It was also averred by the respondent that the applicant cannot have better rights than that of said Muhammad Fazal, from whom he had allegedly purchased the property in question. The learned Civil Judge after hearing the parties through a short order dated -27-1-1980 dismissed the above application mainly on the ground that the service by substituted service under Order V, rule 20, C. P. C. Was proper service. The respondent being aggrieved by the above order of the learned Civil Judge filed C. M. A. No. 44/80, which was allowed by the learned Additional District Judge, Karachi, through his aforesaid order dated 26-7-1980. The applicant being aggrieved by the above order has filed the present revision application.
2. (b) In support of the above revision application Mr. Khalil-ur-Rehman's, learned counsel for the applicant has urged that there was no justification for the learned Additional District Judge to set aside the order of the learned Civil Judge as the order of the Civil Judge was in accord with law, and secondly the application for setting aside ex parte decree was also time barred.
(b) The above contentions seems to be devoid of any force. From the order of the learned Additional District Judge, it seems that he has applied his mind to the facts of the instant case and has also taken into considera--tion the relevant provisions of the Sind Civil Courts Rules. It may be pertinent to observe that the learned Additional District Judge has pointed out in the order in question that there was non-compliance of rules 105, 106, 107 and 108 of the Sind Civil Courts Rules and that the granting of the application under order V, rule 20, C. P. C. For substituted service was not warranted by the facts of the instant case. He has also pointed out that the bailiff has not submitted his report on affidavit as required under rule 108 of the Sind Civil Court Rules, but has merely made an endorsement on the summon. In my view, before granting the substituted service by publication, it is incumbent upon the Court to apply its mind to the facts of the case and to come to the conclusion that in spite of the best efforts on the part of the , plaintiff, the defendant could not be served inter alia for the reason that he has been avoiding the service with the object of obstructing the disposal of the suit. It seems that the learned Civil Judge while granting the applicant's application for substituted service had not adverted to this aspect inasmuch as the bailiff in his report dated 26-3-1979 stated that he went to the shop and found that the same was closed and upon inquiry he was told that the shop remained closed. However, he further stated that he did not personally know the respondent. The summon was repeated for 10-4-1979. In the report the bailiff this time stated that he accompanied the applicant on 8-4-1979 and found that the shop was closed and obtained the signature of the applicant on the summon. He again stated that he did not know the respon--dent personally. On 10-4-1979 an application under Order V, rule 20, C. P. C. Was moved. On 15-4-1979, it was ordered that the service of summon be effected by fixation of the summon on the notice board and on the outer door of the shop. The matter again came up for hearing before the learned Civil Judge on 23-4-1979, he accompanied the applicant on the given address, but came to know that the shop remained closed. He further stated that though he had affixed the notice at the outer door of the shop, but could not obtain the signature of any witness, The learned Additional District Judge has pointed out that there is no diary for 23-4- 1979 in the file of the trial Court. However, on 23-4-1979 an application for substituted service was made which was granted. It has been noted by the learned Additional District Judge in his order that all the attempts except one were made by the bailiff while allegedly accompanying the applicant which was not according to the miles as there was no order from the Court to the effect that the applicant should accompany the bailiff. Furthermore, there was nothing on the record of the learned Civil Judge to indicate that the summon for the material date for which service has been held good by publication was affixed at the Court notice board or at the outer door of the premises in question. In my view the learned Additional District Judge has neither acted in excess of jurisdiction nor has exercised jurisdiction with material irregularity as to warrant the interference with the order by this Court in exercise of its jurisdiction. The order seems to be in accord with law, which will serve ends of justice.
(c) Referring to Mr. Khalilur Rehman's contention that the application for setting aside the ex parte order was time barred, it will suffice to observe that from the facts of the above case it is evident that the applicant was not served through ordinary mode, and since there was no justification for granting substituted service, the respondent had no knowledge of the suit. As r. There is an element of fraud in obtaining the ex parte decree, in my view, for the purpose of limitation for filing an application for setting aside such an ex parte decree 30 days period from the date of the knowledge is to be computed as it has .Been, held in the case of Malik Muhammad Nazir v. Mian A.Bdur Rahim and others (PLD 1968 Lah. 792).
3. In view of the above discussion, I do not find any merit in the above revision, and hence, the same is dismissed with no order as to costs.