1. ' Facts relevant for proper appreciation of the controversy giving rise to this constitutional petition briefly stated are that a civil suit for declaration and perpetual injunction in respect of a piece of land was instituted by Muhammad Zaka Ullah against Mst. Rashidan Bibi in the civil Court at Gujranwala. In the above noted civil suit, defendant Mst. Rashidan Bibi was proceeded against ex parte. Eventually on 11-5-1973, ex parte decree was passed in favour of Muhammad Zaka Ullah by the civil Court. Defendant/judgment-debtor, moved petition on 23-2-1980 for setting aside the ex parte decree on the ground that she had not been served either in person or through substituted service. Reports of the process-server regarding service, according to the defendant were all manipulated. This application was seriously resisted by the plaintiff/decree-holder. Apart from several preliminary objections raised in the written reply he also denied the allegations made against him in the petition seeking reversal of the ex parte decree. The controversy raised in this petition is reflected in the following issues:-
(1) whether the petitioner has no cause of action.
(2) What is the effect of not filing the schedule of address by the petitioner?
(3) Whether the application is within limitation?
(4) Whether there are good reasons for setting aside the ex parte decree?
2. ' Learned Senior Civil Judge vide his order, dated 12-9-1983 found issues Nos.3 and 4 in favour of Mst. Rashidan Bibi. In the result of above findings, petition made under Order IX, rule 13, C.P.C. was allowed and the ex parte decree dated 11-5-1973 was set aside subject to payment of Rs.100 .as costs. Plaintiff challenged this order in revisional jurisdiction before learned Additional District Judge, Gujranwala. The Court refused to interfere with the findings of fact recorded by the learned Senior Civil Judge and thus dismissed the revision petition vide order, dated 30-5-1984. These two orders are under challenge in constitutional jurisdiction by the petitioner.
2. I have heard learned counsel for the petitioner and examined the record. It has been contended that the petition for setting aisde the ex parte decree was hopelessly and miserably barred by time.
3. Under Article 164 of the Limitation Act, the defendant has 30 days to apply for setting aisde of the ex parte decree. Terminus a ,quo is the date of decree if the defendant has been served and in the absence of the proper service it is date of knowledge. Learned counsel states that the defendant had been duly served in person and through a substituted service also. He has relied on the report of the process-server Exh.A.1 and the publication in the daily newspaper "Qaumi-Dalair[URDU TEXT] ( y?->L5) ). Learned counsel states that all the formalities required regarding service of summons had been duly complied with by the primary Court before the defendant was proceeded ex parte.
4. There was no legal evidence, as the learned counsel put it, in support of non-service of summons and want of knowledge on the part of the judgment-debtor.It has also been asserted that the defendants has failed to prove that she obtained knowledge of the ex parte decree within 30 days of the making of application under Order IX, rule 13, C.P.C. Statements of witnesses recorded by trial Court on the issues raised, have been read out in Court.
3. A suit by Zaka Wish, a village Patwari in service, was instituted against Mst. Rashidan. The process-server effected service of summons on Ghulam Haider, her husband. Said report allegedly bears the signatures of Muhammad Sharif Chowkidar and thumb-impression of Ghulam Haider.
5. The report also states that the copy of the summons was pasted on a door of the house.
6. Muhammad Sharif whose signatures are shown on the report of the process-server, has appeared in the witness-box as A.W.1. He stated on oath that the report of the process-server does not bear his signatures nor was the service effected in his presence. Muhammad Ibrahim, the postman appeared as A.W.2. It was stated by him that the registered cover, for delivery, was received by him.
7. He himself did not take the registered cover to Mst. Rashidan Bibi. He conveyed the message through a School child. Since, she, did not turn upto receive the registered cover, he made a report.
8. Ghulam Haider, husband of Mst. Rashidan speared as A.W.3 and stated that the summons Exh.A.1 does not bear his thumb-impression. It was further stated that registered cover containing the process of the Court was never delivered, nor was the newspaper carrying the citation received by him. Similar is the statement of Mst. Rashidan Bibi A.W.S. Munshi Muhammad Malik, Patwari A.W.4 appeared and stated about the entry of the mutation entered in pursuance to the ex parte decree.
9. This mutation was entered on 9-12-1979 and its contents were verified by village Girdawar on 1-4- 1980. As against this evidence, Muhammad Zaka Ullah appeared and was supported by Fazal Hussain Process-Server R.W.1. Trial Court examined every bit of evidence and material placed before it to which its attention was invited, and reached the conclusion that Mst. Rashidan Bibi was neither served in person nor through a substituted service. The report of the process-server was a managed one. There was no affixation of summons on the outer door of the house. Copy of the newspaper carrying the citation therein was not despatched to her. She is totally an illiterate lady and daily Qaumi Dalair is not a paper of wide circulation. The evidence produced by Zaka Ullah in these circumstances was not considered sufficient to out - weigh the evidence procured by Mst.
10. Rashidan Bibi showing absence of service and want of knowledge about the legal proceedings in Court against her. Both the Courts below have concurrently concluded absence of service of summons. In this, the Courts have neither ignored any piece of evidence nor have misread it. It has been further found as a fact that the defendant had no knowledge of the suit against her. Al1 the pleas which have been now advanced were unsuccessfully raised in civil revision before learned Additional District Judge. The order passed in revisional jurisdiction has attained finality. To allow a party who has an unsuccessfully challenged an order by invoking the revisional jurisdiction under section 115, C.P.C. to attack the same through a writ petition, would amount to the abuse of the process of law particularly in the absence of any material misreading, non-reading of evidence or any error apparent on the face of record, lack or excess of jurisdiction. High Court under its constitutional jurisdiction cannot assume the role of a Court of appeal to reappraise and re- examine the evidence for the purpose of arriving at its own decision. The findings recorded on questions of fact and the conclusions reached on points of law, do not suffer from any error of jurisdiction. All matters apart, through the impugned order an ex parte decree has been set aside and parties allowed to prove their entitlement to the land in dispute. This will facilitate the task of the Court to find out where the truth lies. The general policy of the law also is to decide controversy on their merits. Keeping this factor in view, in the light of what has been stated above, the case presented by .the petitioner Zaka Ullah is not a fit one for exercise of equitable jurisdiction in his favour. It is in these circumstances that I find no merit in the writ petition. It fails and is dismissed in limine. Let -the parties fight their legal battle on merits before the trial Court.