This revision petition impugns order dated 18.6.2010 of the learned Civil Judge Depalpur , as also the order dated 2.2.201 1 of the learned Addl. District Judge Depalpur 'whereby the application for setting aside of ex-parte decree dated 08.12.2003 was dismissed and the appeal against the same was also declined.
2. Precisely , facts which are material for the decision of this revision petition are that the respondent filed a sure for declaration to challenge general power of attorney and the sale deed on the plea of fraud and fabrication wherein an ex-parte decree was passed on 08.12.2003 by the learned Civil Judge, Depalpur . On initiation of execution proceedings, and receiving notice therein, the petitioner claimed to have moved an application under Order IX, Rule 13, C.P.C. stating that he received the notice in the execution on 29.11.2004, applied for certified copy of the decree, the file was not available and that in the process of obtaining copy, he acquired knowledge of the pending execution in the relevant Court whereupo n he was moved the application for setting aside of ex-parte decree. It was pleaded that no summons or notice was ever personally served upon the petitioner either through ordinary process or registered post nor any publication was ever received by him and that the alleged reports of the process serving agency were collusive and fictitio us and also that he had no knowledge of the decree till such time he received the notice in the execution on 29.11.2004. Application for setting aside of ex-parte decree was moved on 30.11.2004 which indicates that a report was secured from the ahmad who reported about the Court where the execution petition was pending and also reported that the next date of hearing was 10.12.2004. The proceedings on the application thereafter started, reply of the respondent was obtained. The order-sheet reveals that without framing any issue or recording any evidence, the learned Civil Judge seized of the application under Order IX, Rule 13, C.P.C. with a brief order observed that "the application was without any prima facie support to the contention raised by the applicant. So, the application merits rejection and the same is hereb y rejected". It is discernible that no issue was framed nor any effort was made to verify from record as to whether the process of the Court, either through process server or registered post or publication was ever, personally served upon the petitioner or as to whether the reports were supported by a lawful affidavit and that whether the Court had satisfied about the compliance of the rule by examining the process server , as contemplated by Order V, Rule 19, C.P.C. before 'directing publication of notice. The Court proceeded to dismiss the application.
3. In appeal the learned Addl. District Judge, did not consider the application on merit, rather opted to dismiss the same on the assumption that it was barre d by time. As noted herein before, the learned Civil Judge did not touch the question of limitation but the learned Addl. District Judge, in his own wisdom, assumed that the application has been filed after 30 days of the decree and without any application for condonation of delay was not proceedable and that the petitioner had not allegedly explained the delay in the filing of appli cation to set aside the ex-parte decree. It is also manifest from the order that the learned Addl. District Judge, did not even refer the relevant provision of the Limitation Act, 1908 which was applicable on the subject nor had attempted to consider the parameters given therein.
4. Learned counsel for the petitioner questioning the validity of the two orders submitted that there is no lawful and proper disposal of the application under Order IX, Rule 13, C.P.C. Further submitted that the petitioner had specifically pleaded that he was never served with any process of the Court and that the reports were fictitious and that he came to know of the ex-parte decree on 29.11.2004 while he moved the application next day and the application was within time. Finally , it was argued that law favors adjudication on merits which rule has been breached in this case.
5. No one entered appearance on behalf of the respondents. It is observed that CM 1-C/17 for earlier fixation of revision petition was filed by the respondents which request was acceded to yet no one has represented them at the time of hearing. The case being old one which is pending since 2011, adjournm ent could not be granted hence ex-parte hearing was made by this Court.
6. Perusal of the copies of the record annexed with this revision petition reveals that the suit for declaration filed by the respondent was decreed ex-parte on 08.12.2003. Application for setting aside of ex-parte decree was instituted on 30.11.2004. The stance of the petitioner was that he received a notice in the execution proceedings on 29.11.2004, applied for certified copies, the file was not traceable and moved the application on the next day i.e. 30.11.2004. That he was not served with any process/notice/summon, either through the process sever or registered post AD or through publication. None of the notices was ever delivered to the petitioner and that reports on the basis thereof as well as publication and ex-parte order were legally untenable. And that the application was being filed immediately after acquiring the knowledge of the ex-parte decree. Record indicates that respondent contested the application alleging that he was aware of the decree and that there was no ground for the annulment of the ex-parte decree. It is discernible from the file that no issue was framed either on the plea of limitation or on merits to the application, yet the learned Civil Judge vide order dated 18.6.2010 dismissed the application for setting aside of decree on the assumption that all possible measures were adopted for obtaining service including publication in the newspaper and therefore, the application was without any prima facie support to the contention raised therein. The learned Addl. Distric t Judge, dismissing the appeal on the assumption of application being barred by time, did not touch the findings on merits of the application.
7. Under Article 164 of the Limitation Act, 1908 the application for setting aside of the ex-parte decree could be filed within 30 days from the date of decree provided the summons were duly served. In this scenario, it was a question of fact to be determined by the Court whether the summons was duly served or whether the petitioner had the knowledge and despite that did not appear in the suit. It was also essential for. the Court to examine the original record at least to verify that the entire process was lawfully followed before the ex-parte proceedings order was passed or the decree followed. For this purpose the Court needed to see whether the reports satisfied the requirement of Order V, Rule 17, C.P.C. And that the name of the person identifying the petitioner who was to be served or the house where the service was effected was disclosed, the time and date were given and whether any actual service was made by the process server , the correctness of the address was identified or verified by any person, and that the reports were duly witnessed by the witnesses and were verifie d in accordance with the rule. It was also required to be determined whether a declaration of all efforts to procure direct service having remained unsuccessful was ever made by the Court after examining the process server as required by Order V, Rule 19, C.P.C. before passing an rider of publication of notice in newspaper and whether there was any basis or material from which knowledge could be assumed. It was only after the Court's satisfaction that everything could be concluded to be in accordance with law, and due service was effected, that the question of limitation could be reliably determined. In this case the petitioner has taken the plea that he was neve r served with any process in any manner or mode and that he did not receive any notice/summon or newspaper and that he could only acquire the knowledge on 29.11.2004 when he received the notice in the execution proceedings. To enable him to prove the assertion, the framing of issues and recording of evidence was a pre-condition. In "Syed Muhammad Anwar , Advocate v. Sheikh Abdul Haq"( 1985 SCMR 1228 ), it was observed by the honourable Supreme Court that Order V, Rule 20, C.P.C. requires that the Court shall be satisfied that there were reasons to believe that ,the defendant was 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 after which it could order that service be effected through substituted manner .
In this case, both the Courts below did not take the pain to either receive the evidence or determine if the service was only effected in accordance with law and till such time the findings are recorded that the ex-parte proceeding order resulted after the lawful service, the application for setting aside of the ex-parte decree could not be dismissed on the assumption having not been filed within 30 days from the date of an ex-parte decree as the same was barred by time. Even otherwise the petitioner had the right to bring evidence on record to prove that there was no lawful service, he had no knowledge of the decree and thus the reports were collusive and fictitious. This opportunity was never granted as no issue was framed nor the case was fixed for recording the evidence. Even otherwise, the learned trial Court did not frame any issue as to sufficient cause for the annulment of decree which denied the opportunity of proper hearing to the petitioner as he was not given a chance to produce evidence in support of his plea of nonappearance due to the lack of knowledge or any other sufficient ground. Since the impugned orders have been passed without following the legal course, the same cannot be countenanced being illegal and unsustainable.
8. Resultantly , the instant revision petition is allowed, both the orders are set aside, and the application under Order IX, Rule 13, C.P.C. shall be deemed to be pending, which shall now be decided by the learned Civil Judge, after framing of issues on the plea of limitation and the existence or otherwise of sufficient cause for seeking annulment of the decree. Since the matter is old one, the learned Civil Judge shall proceed in the matter expeditiously so as to ensure the final disposal of the application after full opportunity of hearing/evidence to the parties within three months from the date of receipt of copy of this Order with the intimation to the Deputy Registrar (Judl.) of this Court.