Rasaal Hasan Syed, J. This Constitutional petition brings under challenge order dated 07.1.2016 of the learned Addl. District Judge, Sheikhupura whereby the revision petition against order dated 03.9.2015 of learned Civil Judge Sheikhupura was allowed, order impugned therein was set aside and application filed by the petitioners, to set aside of ex parte decree, was declined.
2. Respondent No.3 filed a suit for specific performance of an alleged agreement of sale regarding agricultural land in which an ex parte decree was granted on 12.6.2007. An application to set aside the ex parte decree was filed by the petitioners inter alia claiming that they were never served in the suit with any summons/process of court; they were residents of Mauza Khanpur Tehsil Ferozewala, District Sheikhupura ; respondent No.3 being real nephew , knew the permanent address of petitioner s but despite that with mala fide he did not supply the correct address in the suit; the agreement was never thumb-marked or signed by the petitioners; the suit was instituted by the respondent in collusion with his father who was given the land on "theka" but he colluded with his son to hatch the malevolent scheme; the address given in plaint was incorrect as also insufficient for service; and that by misrepresentation and fraud, ex parte proceedings order as also the ex parte decree, were secured. It was added that petitioner No.2 (defendant No.2 in suit) was of unsound mind which fact was concealed and that based on concocted reports ex parte decree was secured.
3. The application was resisted by the respondent No. 3/plaintif f. Issues were framed, evidence recorded, after which the learned Civil Judge vide order dated 03.9.2015 allowed the application , set aside the ex parte decree dated 12.6.2007 as also the subsequent proceedings in execution, and ordered cancellation of sale deed which was procured by fraud.
4. Respondent No.3 filed civil revision petition against order dated 03.9.2015 of the learned Civil Judge, which was allowed by learned Addl. District Judge, Sheikhupura vide order dated 07.1.2016. In result the order of the learned Civil Judge was set aside, the application of petitioners for the annulment of the ex parte decree was dismissed and ex parte decree was restored, which order is assailed in this Constitutional petition.
5. On behalf of petitioners it was veheme ntly argued that the entire proceedings as also the decree, which were ex parte , were illegal and ab initio void. The ex parte decree was obtained by fraud; the address of the petitioners in the plaint was insufficient and vague on which no service could be made; the learned Addl. District Judge incorrectly assumed that the petitioners were represented by Malik Tariq Aziz, Advocate in another matter or allegedly applied for setting aside of ex parte proceeding order; the petitioners having denied the engagement of Malik Tariq Aziz as Advocate in any matter and also signatures/thumb impressions on alleged application, the onus was upon the respondent to prove the appointment of Malik Tariq Aziz, Advocate or his alleged authority to represent the petitioners, which evidence having not been produced, the learned Addl. District Judge illegally assumed that the onus was upon the petitioners to prove negative plea. It was further argued that the findings recorded by the learned Addl. District Judge rest on complete misreading and misinterpretation of evidence while the learned Civil Judge correctly analyzed the entire evidence and that the learned Addl. District Judge acted illegally and without lawful jurisdiction in reversing the findings of fact recorded by the learned Civil Judge. It was contended that the learned Addl. District Judge took an erroneous view of law and illegally ignored the effect of fraud committed by respondent No.3/plaintiff in procuring ex parte decree and thereafter in the matter of execution of decree.
6. Responding to the arguments learned counsel on behalf of respondent No.3 submitted that the element of fraud was missing; the petitioners could not prove that the decree was secured by fraud; they had knowledge of ex parte decree; the application was not within time; and that the learned Addl. District Judge rightly declined the application to set aside ex parte decree.
7. The submissions respectively made from both sides have been duly considered in the light of copies of the record annexed with the Constitutional petition. Application for setting aside ex parte decree was pressed into service mainly on the ground that the petitioners were never served with any process/summons/notices in the suit as incomplete and false addresses were given despite close relationship with the petitioners. Having knowledge of their permanent residence, respondent No.3 fraudulently withheld the correct address of petitioners and managed to obtain an ex parte decree on baseless, illegal and collusive reports. The perusal of plaint reveals that the particulars and address of petitioners, were supplied as under: - "(1) Arshad Ali alias Hajj (2) Muhammad Afzal sons of Nazar Muhammad (3) Parveen Akhtar daughter of Nazar Muhammad caste Jat Tariwal residents of Chota Sanda near stop uterkay through Sheikh Ikram Lahore, Tehsil and District, Lahore. "
It is manifest that service could not be effected on the given address as it was insuf ficient and incomplete in all respects. Irrespective of the fact as to whether the petitioners had ever resided or not at Chota Sanda , for the purposes of service the true particulars such as house number , street number , name of the road on which the property was located or the property number were prerequisite. Chota Sanda being a big area where number of people reside as also admitted by respondent No.3 in his statement as RW 3, no process server could realistically contact the petitioners on such an incomplete address. The words "stop uterkay through Sheikh Ikram Lahore, Tehsil and District, Lahore " mentioned in plaint, was inconsequential as it was not disclosed as to who Sheikh Ikram was, what was his relationship with the petitioners, where did he reside and how could he be delegated the responsibility to accept notice or to ensure service of notice upon the petitioners. The particulars given therefore lead to the strong impression that the objective was that the process server should not be able to contact the addressees.
8. The petitioners' case was that the respondent No. 3 was a nephew, closely related, who knew their exact permanent residence as "Village Khanpur, Tehsil Ferozewala, District Sheikhupura" yet he with mala fide did not state this address in the plaint. It is not claimed that any summon was ever personally served upon the petitioners. So much so the report of process server on notice for 29.7.2006, available at page 29 of the writ petition, shows that he had reported that the address was incomplete and insufficient for service and that the respondent No.3/plaintiff be directed to provide complete address. On this report the court vide order dated 31.10.2006 directed respondent No.3 to furnish correct address of defendants in suit, after which summons were to be issued. Yet respondent No.3 did not make compliance and to achieve his malevolent ends filed affidavit dated 15.11.2006 declaring that the address already given was correct and sufficient. On such fraudulent representation the respondent no.3 secured order of substituted service on an incomplete/insufficient address. It was mandatory for the learned Court to have ensured by examining the process server about his report and insisted for the supply of complete correct address; but it did not follow the mandate of Order V, Rules 17, 18 and 19, C.P.C.
9. In "Syed Muhammad Anwar , Advocate v. Sheikh Abdul Haq" (1985 SCMR 1228 ) it was observed by the honourable Supreme Court that: - 'The rule 20 of Order V of the Civil Proced ure 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 canno t 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 affected on the defendant has reference to the provisions contained in rule 9 to 17 of Order V of the Code. 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 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 to the Court from which it was issued, with a report endorsed thereon or annexed there to 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 that no resort 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 Civil Judge on the 4 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.
The learned High Court in reversing the order of the learned Senior Civil Judge, dated 9th April 1978 does not seem to have adverted to the above aspects of the case and instead rested its finding on the proviso to rule 13, Order IX of the Civil Procedure Code. This proviso was added by the Law Reforms Ordinance 1972, and lays down that decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. But it cannot be inferred that under the force of this proviso even an irregular service of summons is to be treated as "due service" even for the purposes of the Limitation Act. Moreover, it appears that prima facie this proviso deals with the effect of a mere "irregularity" and not illegality in the service of the summons. Even otherwise, in the instant case, the learned Judge in chambers had, as discussed above, apparently arrived at the conclusion that vide Exh. P. 3 the summons for the 11 of December, 1973 was sent to the defendant by registered post acknowledgement due by Sheikh Riaz ul Haq (RW 3) and that he had, therefore, knowledge of the date of hearing of the suit. But evidently in 11 December 1973 the learned Senior Civil Judge did not proceed ex parte against the defendant and instead decided to issue fresh summons to him in the ordinary way for the 2 of February 1974. There is nothing on the record to show that the defendant had any knowledge of the next date of hearing when the proceedings were actually ordered ex parte against him. In this view of the matter, no resort could be made to the said proviso for the date when the ex parte proceedings were actually taken against the defendant. As discussed above, it cannot be held that the appellant had been "dulyth th th nd served" with the summons in the suit and his application for setting aside the decree filed on 27 of April, 1974 was, therefore, not time- barred. (emphasis supplied )
10. In the present case, the situation was in fact more alarming as the address given in the plaint was extremely insuf ficient and vague for purpose of service and on which no process server worth the salt could possibly reach the addressee. Even the process server had reported that the particulars of address were insuf ficient, and being so, without adhering to the mandate and prerequisites of Rules 17, 18 and 19 of Order V, C.P.C. no order for publication of notice could be legally made.
11. It is a set practice of the courts as also the news agencies that when a publication of notice is made through newspapers, a copy of the newspaper is sent through registered post to the place which is recorded as alleged residence of defendant. In this case no useful object could be served in this exercise as the address supplied was completely insuf ficient and vague for such intents and purposes.
12. In "Mehr Din through Legal Heirs v. Azizan and another " (1994 SCMR 1110) it was observed by the honourable Supreme Court that where the decree-ho lder practiced fraud in the service of summons and kept the pendency of suit against the respondents concealed from them by fraud and misrepresentation and the copies of the summons placed on record were supportive of the fact that no effort was made to personally serve the respondents in the presence of their close relatives, the ex parte decree against the ladies/respondents was correctly annulled and that the relevant provisions of C.P.C. pertaining to service on the parties found not to have been complied with, High Court justifiably annulled the ex parte decree against the ladies/respondents and ordered de novo trial.
13. In "Nouroz Khan v. Haji Qadoor " (2005 SCMR 1877 ) it was observed by the honourable Supreme Court that where the report of process server shows that in the matter of service of summons the requirement of law was not fulfilled, no exception could be taken to the conclusion draw by the High Court while holding that the of summons in departure to the provisions of Order V , Rule 18 and 19, C.P .C. would not be considered to be proper service.
14. Strong inference that the decree was obtained by fraud and misrepresentation by providing misleading information, cannot be ruled out in the peculiar circumstances of this case. It is discernible from the alleged agreement of sale, Ex. P 1 (the execution whereof is though denied) that the address of the petitioners was given as "Khanpur , Tehsil Ferozewala, District Sheikhupura" but despite that this address was not given in the plaint. So much so that respondent No.3/plaintif f gave the Khanpur address in the draft sale deed which was got registered ex parte. Strange enough the learned Civil Judge seized of the matter did not take note of the same nor ever attempted to secure service by obtaining correct address. Another aspect which supports to prove allegations of fraud raised by petitioners, was that the ex parte decree fixed time limit to deposit the remaining sale price and the failure to comply with the condition was to result in dismissal of suit. The decretal amount was never deposited within the prescribed time. In result the ex parte decree had become redundant.
Two applications for extension of time were filed by respondent No. 3 but the same were dismissed by the learned Civil Judge vide order dated 06.7.2007 (Ex.A12) and order dated 11.7.2007 (Ex.A14). By concealing these orders respondent No. 3 obtained an order for deposit of balance sale price from the Executing Court through a frivolous application dated 18.7.2009 notwithstanding the fact that the Executing Court had no jurisdiction to allow such extension or execute a redundant decree, in view of the rule laid in "Muhammad Wahid and another v. Nasrullah and another" (2016 SCMR 179), where it was held as under:- 10... It is an admitted fact that the trial court had passed the ex parte decree on 13.7.2008 with a direction to the Appellants to deposit the remaining sale consideration in Court within 40 days, failing which the suit filed by them shall stand dismissed. Admittedly, the Appellants had made application for extension of time for deposit of balance sale consideration on 14.10.2008 after lapse of 40 days. Such application, in the given circumstances, could not have been granted by the trial court in exercise of its powers under section 148, C.P.C. as on the said date the trial court had become functus officio by virtue of its judgment/decree dated 31.7.2008. The issue that the trial court had passed a preliminary decree on the said date which became final on 31.10.2008, has no nexus with the condition incorporated in the decree of the trial court which had specifically stated that in case of non- deposit of balance sale consideration within the stipulated time, the suit shall stand dismissed. Such a decree could have only been challenged by the Appellants in appeal and the Appellate Court was competent to allow anth Application of the nature if justifiable grounds were found in such an Application seeking extension of time for deposit of balance sale consideration. The jurisdiction with the trial Court was available only within the stipulated period of 40 days, and the moment this period of 40 days was over, it ceased to have jurisdiction and had become functus officio , in view of the condition incorporated in the decree.
11. The contention of the learned Counsel for the Appellants that the trial court had passed the final decree after allowing the application of the Appellants, we may observe that such a final decree was nullity in the eyes of law, as the trial court did not have the jurisdiction to extend time beyond the period fixed by it is pertinent to mentioned here that that too, on an application after the stipulated time was lapsed. Any decree based on grant of such application is without jurisdiction and no sanctity could be attached to it.
15. The facts noted supra clearly prove that right from the date of institution till the execution of decree, the petitioners were never served with any process or summon, the respondent No.3 deliberately concealed the correct particulars of address and the order of substituted service was obtained by concealment of facts and misrepresentation. Even in execution proceedings respondent No. 3 by concealment and misrepresentation obtained order for the deposit of balance sale price after the decree had becom e redundant. The order of the Executing Court was of little value having been passed without jurisdiction to enlarge the period for deposit and in oblivion to the earlier two orders of the court that originally imposed the condition while passing the decree wherein extension was declined. The order secured from the Executing Court and thereafter the entire proceedings were nullity in law being based on misrepresentation and concealment of facts and without the opportunity of defence to the petitioners. The argument that while dealing with the application to set aside the decree, the court could not look into the alleged errors in the proceedings of execution or in respect of the jurisdiction of the Executing Court to extend the period for deposit, is devoid of substance. The facts noted in respect of the execution proceedings including the manner in which the sale deed was obtained and concealment was made for seeking extension to deposit the balance sale price from a court which did not have jurisdiction, being relevant to support the plea of fraud committed in the matter of obtaining the ex parte proceeding order , the decree and also the subsequent proceedings to enforce the same, could be looked into for limited purposes. The cumulative effect of events upto the decree and till the execution proceedings, fortifies the plea of the petitioners that with calculated design and mala fide, respondent No.3 ensured the obtainment of the decree and its execution. The court was kept in the dark by withholding material information and by ensuring that the defendants in the suit did not get information, respondent secured ex parte results, which as noted supra, were nullity from beginning to end.
16. As regards the plea of knowledge of ex parte decree the respondent No. 3 claimed that Malik Tariq Aziz, Advocate had allegedly represented the petitioners in some proceedings or moved application for setting aside of ex parte proceeding order . The learned Civil Judge on due consideration of entire order-sheet rightly observed that the personal attendance of petitioners at any stage was not reflected from the order-sheet and therefore, it could not be inferred that petitioners had knowledge or that Malik Tariq Aziz, Advocate was ever authorized by them to represent. While appearing in the witnes s box as AW1, Parveen Akhtar , denied having ever appointed/engaged Malik Tariq Aziz, Advocate as a lawyer; rather she stated that she had never met him and also denied the suggestion that she had instructed the said lawyer to appear . It was further denied that the said Advocate was ever instructed to move any such application. In view of the denial the onus was upon the respondent to prove positively that the said lawyer was engaged or appo inted or he had appeared in the court on the instructions of petitioners. It was rightly observed by the learned Civil Judge that the respondent did not produce material evidence nor he could prove that petitioners had ever engaged the said alleged lawyer to represent in the case. Strange enough, the learned Addl. District Judge, illegally assumed that the onus was upon the petitioners to summon him and to produce him as a witness and due to his non-production he raised an adverse assumption against the petitioners.
This assumption was totally foreign to the law. It is a settled rule that where the execution of a document or wakalatnama is denied, while the signature or thumb impression are not admitted, the onus to prove positive plea of alleged execution is upon the person who claims execution and raises positive assertion. In "Mst. Nusrat Bibi v.
Muhammad Ashraf Mehr and others " (2007 YLR 41 ) it was observed as follows: - "...Here I may also add that the learned trial Court correctly held that it was for the respondents to get the thumb- impression of the petitioner compared with the thumb impression appearing on the power of attorney (Exh. P . 3)"
17. In this case, it was for the respondent No.3 to have summoned Malik Tariq Aziz, Advocate either himself or through the process of the court or should have requested the court to summon him as a court witness to prove his positive assertion. Since the document was claimed to have been allegedly execu ted by a lady it was mandatory for the respondents to have sought the report of the forensic expert on the thumb- impression or the signatures but no such effort was made by the respondent No. 3. Notwithstanding the settled rule, respondent No.3 opted not to produce Malik Tariq Aziz, Advocate, which would of course raise an adverse inference against him and was sufficient to conclude that there was no evidence to prove that the said alleged Advocate had ever any authority to represent the petitioners or to move any application on their behalf. In this view of the matter no inference as to the alleged knowledge, as claimed by the petitioners could be inferred and therefore, the learned Addl. District Judge committed material error of law and jurisdiction in assuming adversely against the petitioners to non-suit them on the plea of limitation. For limitation purposes, as noted supra, the petitioners were never served with any process of court. Petitioner Parveen Akhtar claimed to have acquired information of the decree a week before the institution of the application for setting aside of the ex parte decree; which stance she also reiterated in her deposition on oath. The application filed within a week from the information secured was well within time.
The ex parte decree even otherwise a nullity and ab initio void and secured by fraud, could not be countenanced after the facts proving the commission of fraud were manifest on the surface of the record.
18. The learned Civil Judge after taking note of the facts and circumstances discussed herein above, rightly concluded that the ex parte decree was liable to be set aside while the learned Addl. District Judge by misread ing the record, taking erroneous view of law, and ignoring the material facts proving fraud in the obtainment of decree and lack of knowledge of the decree by the petitioners, proceeded to reverse the order which order cannot sustain and is declared to be illegal and accordingly set aside.
19. In result, the Constitutional petition is allowed , the order of the learned Addl. District Judge is set aside while that of learned Civil Judge allowing the application for setting aside of ex parte decree is restored. The learned trial court shall initiate the proceedings de novo and after giving full opportunity of written statement, evidence and hearing decide the suit in accordance with law .