1. S.A. NUSRAT, J.--This appeal by leave of this Court has been brought to challenge the judgment of the Lahore High Court, dated 2-12-1978 which was passed on a revision application of the respondent in the background of the following facts: The respondent filed a suit on 20-7-1973 for possession in respect of southern portion of Bungalow Number 25-A, Lower Mall, Lahore against the appellant by specific performance of a contract of sale, dated 6-9-1960. The suit was decreed ex parte by the Senior Civil Judge, Lahore in favour of the plaintiff-respondent on 18-3-1974. However, afterwards the decree was set aside by the Court on 9-4-1978 on the application made by the appellant. The respondent felt aggrieved of the said order and filed a revision application in the High Court which was allowed on 2-12-1978 and the order of the learned Senior Civil Judge was reversed and the ex parte decree passed in favour of the respondent was restored.
2. The brief resume of the proceedings taken in the trial Court shortly stated are that on 23-7-1973 the trial Court had ordered the summons to issue to the defendant-appellant for the 13th September, 1973 but the process issued to him was returned unserved with the report that he was not available at his given address. On 13-9-1973, the Court, therefore, directed fresh summons to issue to the defendant in the ordinary course as well as by registered post for the 24th of October, 1973. It has been concurrently held by the learned to Courts that no summons were in fact issued to the defendant-appellant for this date. In these circumstances, the trial Court once again passed order on 24th of October, 1973 for service of the summons on the defendant in the ordinary course as well as by registered post for the 11th of December, 1973. The summons issued to the defendant was received back unserved with the report of the process-server that according to the information supplied by his servant the appellant had gone out of Lahore and the date of his return was not known. At the hearing on the 11th of September, 1973 the learned Court, therefore, ordered the fresh summons to issue on deposit of process fee to the defendant for the 2nd of February, 1974. But it appears that the process issued for 2nd of February, 1974 was not returned by the. Date fixed, which was declared a public holiday. The case was, therefore,' put up on the 4th of February, 1974 when the Court observed that "once again the service could not be effected on the defendant. Several summons - had been issued to him which were returned unserved with different reports on them. It was, therefore, not possible to have the defendant served in the ordinary way." The Court, therefore, directed that substituted service may be effected on him by publication in Daily 'Nawa-e-Waqt' for the 16th March, 1974. In spite of this publication, the defendant failed to appear on the next date of hearing on the 16th of March, 1974. The trial Court, therefore, proceeded ex parte against him and after recording the evidence decreed the suit ex parte against the defendant-appellant on 18th March, 1974.
3. On the 27th of April, 1974, the appellant filed an application under Order IX, rule 13 read with section 151 of the Civil Procedure Code for setting aside the ex parte decree passed against him in the above circumstances. It was contended by the defendant that he was never duly served in the suit and had learnt about the ex parte decree passed against him only on the 26th of April, 1974. The application was hotly contested by the respondent who in his reply asserted that the appellant had been properly served in the suit and there was no sufficient ground for setting aside of the ex parte decree. It was further alleged that his application was barred by the and liable to be dismissed on that short ground alone. The parties joined issues on these pleas and produced documentary and oral evidence in support of their respective contentions before the learned trial Court. The learned Senior Civil Judge accepted the application of the appellant and set aside the ex parte decree. In his opinion there were only to reports of non-service on the defendant. The first of these reports was that he was not available at his house and the second was that he had gone out of Lahore.
4. According to the Court, no notice through registered post was directed to be sent to the defendant-appellant on 11th December, 1973 for 2nd of February, 1974. In these circumstances, according to the trial Court, on the' basis of these to reports only it could not be said that the defendant was keeping out of the way for the purpose of avoiding service, nor was there any other reason to suggest that the summons could not be served on the defendant in the ordinary way.
5. As such, in the opinion of the learned Senior Civil Judge, the order for effecting the substituted service on the defendant was not justified. Even otherwise, according to him, the citation actually issued in the Nawa-e-Waqt was not proper inasmuch as it did not contain a correct description of the suit actually filed by the plaintiff against the defendant. For all these reasons the Court held that the defendant was not duly served and had learnt about the ex parte decree passed against him only on the 26th of April, 1974 and consequently he had filed the application in the within thirty days of the date of knowledge of the ex parte decree.
6. In deciding the revision of the respondent, the learned Judge in Chamber relied on the evidence of the respondent and his son Sheikh Riazul Haq, Advocate R.W.3 and the Exh. P.3, copy of a communication sent to him by the City Superintendent of Post Offices, South Division, Lahore, to conclude that a summons for 11th December, 1973 was sent by registered post acknowledgment due to the defendant by Sheikh Riazul Haq, Advocate, and that he had knowledge of the suit as well as the date of hearing. On these findings, therefore, having regard to the proviso to rule 13 of Order IX of the Code of Civil Procedure, the defendant was duly served in the suit and consequently his application to set aside the ex parte decree made after more than thirty days of the date of the decree was also barred by the.
7. We heard the learned counsel for the parties and have gone through the record with their assistance. It appears that the crucial step in the proceedings in the suit was taken by the learned trial Court on 4th February, 1974 when he ordered the substituted service on 'the defendant having formed the opinion that it was not possible to have the defendant served in the ordinary way. The basis for recording of such a finding was the to earlier reports of the process-server dated 12th of September, 1973 and 8th December, 1973 pertaining to the dates of hearing fixed for 13th of September, 1973, and 11th of December, 1973. It is also clear from the record, as rightly found by the learned Senior Civil Judge in his order of setting aside the ex parte decree, that no notice through registered post was directed to be sent to the defendant appellant for 2nd of February, 1974 when the order for issuing of fresh process was passed on 11th December, 1973 although on 24th of October, 1973 while ordering fresh service on the defendant-appellant for 11th December, 1973, the Court had directed for the issuance of summons in the ordinary course as well as by registered post. In its order, dated 4th February, 1974 when the trial Court had formed an opinion that service of summons in ordinary course was no longer possible, the Court did not record any finding to the effect that "the defendant was keeping out of the way for the purpose of avoiding service." The only ground on which the learned trial Court had ordered the substituted service, namely, that it was not possible to have the defendant served in the ordinary way, is, not supported on the basis of the record.
8. The rule 20 of Order V of the Civil Procedure 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 cannot 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 effected on the defendant has reference to the provisions contained in rules 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 authorised 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 conspicious 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 thereto 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 borned 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 4th 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 some what different consideration, was of the opinion that there was no reason to conclude that the "summons could not be serves on the defendant in the ordinary way" and, therefore, the substituted service effected on him was not justified in the circumstances of the case.
9. 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 no 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 the 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 11th of December, 1973 was sent to the defendant by registered post acknowledgment due by Sheikh Riazul Haq (R.W. 3) and that he had, therefore, knowledge of the date of hearing of the suit. But evidently in 11th 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 2nd 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 "duly served" with the summons in the suit and his application for setting aside the decree filed on 27th of April, 1974 was, therefore, not the-barred.
10. The learned counsel also addressed arguments on the scope of revisional jurisdiction of the High Court under section 115 of the Civil Procedure Code, but in view of the findings recorded here in abave on facts as supported by the record it is not necessary to go into any legal discussion on this question.
11. In the result, we would allow this appeal, set aside the judgment of the High Court, dated 2nd December, 1978 and restore the order of the trial Court, dated 9th April, 1978. The parties are directed to appear before the Senior Civil Judge Lahore on 9th April, 1983 where the suit for specific performance of agreement is pending, which should be decided within six months. There will be no order as to costs.