1. ' This Civil Revision is against order, dated 9-4-1984 of learned Additional District Judge, Gujranwala, maintaining order, dated 9-3-1976 of the learned Civil Judge, refusing the petition for setting aside an ex parte decree, dated 18-12-1969 passed in a civil suit for declaration instituted by Muhammad Siddique against his son Muhammad Azim, defendant, now petitioner. After the suit was instituted, summonses for the appearance of the defendant were ordered to be issued for 14- 9-1968. Defendant, as the report of the Process-server showed, was personally served on 5-9-1966.
2. On 14-9-1968, the date fixed for hearing of the civil suit, since the defendant despite personal service, did not enter appearance, learned Civil Judge, Gujranwala, ordered ex parte proceedings against him and adjourned the case for recording ex parte evidence. Thereafter some evidence was recorded and on the basis thereof the suit was decreed ex parte on 18-12-1969.
3. ' Muhammad Azim defendant judgment-debtor applied to the Court for setting aside the ex parte decree, dated 18-12-1969, under Order IX, rule 13 read with section 151 of the Code of Civil Procedure.
4. The application was presented on 21-11-1970. It was stated in the petition that the defendant had no knowledge of the, proceedings and that he had not been served. Knowledge of the ex parte decree travelled to him through a village Patwari on 13-11-1970. Thereafter he made certain inquiries, applied for certified copy and then. instituted the application for obtaining the necessary relief. This application was resisted. Learned Civil Judge framed following two issues:-
(1) Whether there are sufficient grounds to set aside the ex parte decree? O.P.A.
(2) Whether the application is within time? O.P.A.
(3) Relief.
5. ' Muhammad Azim recorded his own statement as A.W. 1 and concluded his side of evidence in support of the above-noted issue. The case was then adjourned for the plaintiff/decree holder's evidence. Oral evidence was not produced. Decree-holder contented himself by producing certain documents Exhs. R 1 to 5. The tender/admission of these documents in evidence was objected to by the judgment-debtor/applicant. The Court observed that the objections will be attended to and decided at the time of arguments. Application was then adjourned for hearing arguments. At some later stage of proceedings, the Court observed that the signatures of Muhammad Azim appearing on thg back of the summons differed from the one appearing on the application moved for setting aside the ex parte decree. In the result of this observation, the Court framed another issue which reads:- ' Whether the petitioner was not served on 5-9-1968 for appearance in the Court on 14-9-1968?
6. O.P.A.
7. ' After framing the additional issue, the Court set down the case for evidence. Action of the Court in framing an additional issue and postponing the case for additional evidence was objected to by Muhammad Siddique in Civil Revision No.9 of 1973. Qazi Muhammad Latif, learned Additional District Judge, Gujranwala, vide order, dated 11-11-1974 allowed revision, set aside the impugned order by which an additional issue was added and directed the Court to decide the controversy on the basis of the material then available on record. Review petition No.36 of 1975 was dismissed on 24- 11-1975 by learned Additional District Judge, Gujranwala. Consequently, order passed by learned Additional District Judge on 11-11-1974 remained in the field. Learned Civil Judge, vide order, dated 9-3-1976 dismissed the petition and maintained ex parte decree, dated 18-12-1969. An appeal filed by Muhammad Azim to assail the order of the trial Court refusing relief to him has also been dismissed by the learned Additional District Judge, Gujranwala, vide order, dated 9-4-1984. Orders passed in the circumstances narrated in the preceding paragraphs have been called in question by the judgment-debtor Muhammad Azim in revisional jurisdiction of this Court. Muhammad Siddique meanwhile had expired and was succeeded by his legal representatives who have been substituted in place of the deceased.
8. ' I have heard learned counsel for the parties. Learned counsel for the petitioner has contended that the Courts below have proceeded on erroneous premises in holding that the petitioner had been served personally. Statement of the petitioner disowning service as A.W. I remained unrebutted as no evidence whatsoever was adduced from the opposite side. Certain documents were tendered in evidence showing personal service, under objection. These documents in the absence of their proper proof were inadmissible. If these documents are excluded from consideration, then there remained an unrebutted statement of the petitioner who had denied service of process. The finding recorded by the Courts below were based on "no evidence". Since an ex parte decree had been passed on the basis of a fake report prepared by the process-server showing personal service, the petitioner had a clear case to have the matter reheard. Orders passed by the Courts below are outcome of materially irregular exercise of jurisdiction. Learned counsel appearing for the respondents frankly conceded that the documents placed on file by the decree-holder in support of service were not properly proved and as such could not be treated as admissible evidence to prove service of the defendant/petitioner. However, it was stated that in the petition under Order IX, rule 13, Code of Civil Procedure, the petitioner had nowhere disowned the report of the process-server attributing personal service to him. In such circumstances, the report of the process-server which was otherwise available on record by itself shifted the onus to the petitioner to prove absence of service and in that it was his duty to prove non-service by producing the process-server in his evidence. It was also stated that the application was delayed despite the knowledge of the ex parte decree.
9. 'In terms of Order IX, rule 13, C.P.C., a defendant against whom an ex parte decree had been passed, can apply to the Court which passed the decree to set it aside. Before he could succeed, he A had to satisfy the Court about two essential requirement, one that the summons were not duly served or if served he was prevented by sufficient cause from appearing before the Court when the suit was called on for hearing. In case non-service of summons is successfully proved by the defendant, the Court is obligated to set aside the ex parte decree passed by it. Period of limitation for setting aside ex parte decree is provided in Article 164 of the Limitation Act, 1908. In case of non- service of summons, period for setting aside the ex parte decree starts from the date of the knowledge of the ex parte decree. Defendant in this case had disowned knowledge of the proceedings against him. He entered witness-box and disposed on oath that he had not been served. No evidence was led on behalf of Muhammad Siddique to rebut the statement of Muhammad Azim. So much so, he was not confronted with his alleged signatures appearing on the summons said to have been served upon him. Documentary evidence like the report of the process-server etc. has been conceded to be inadmissible by learned counsel for the respondents.
10. When denial of personal service was deposed on oath by the defendant, the onus shifted on to the other side then to prove actual service, may be by producing the process-server. The person who witnessed service of process has also not been produced. In these circumstances, the finding of the trial Court that the defendants have been served in person by a process-server of the civil Court, was based on misreading of the record and was contrary to the well-settled principles of law. Non-appearance of Muhammad Siddique in support of service of summons in opposition to the statement of Muhammad Azim denying service goes a long way to prove the assertion of the petitioner. On the basis of evidence made available on record, it cannot be said that the defendant had been served in person by the process-server. Therefore, the Courts below have acted illegally in refusing the relief to the petitioner after holding that the service had been proved. It is not denied that the application was moved within 30 days from the date of the knowledge of the ex parte decree. It is axiomatic that law favours adjudication on merits, after affording adequate/reasonable opportunity of hearing to parties. Dismissal in default or ex parte decisions serve an exception to the above-stated general rule. In the result, revision is allowed, ex parte decree, dated 18-12-1969 is set aside and the case is remanded for decision afresh in accordance with law after affording an opportunity of hearing to the parties.