This appeal is directed against order dated 20-4-1988 passed by learned Additional District Judge, Sheikhupura dismissing the appellants' application under Order XLI, Rule 21 read with section 151, C.P.C. For setting aside ex parte judgment and decree dated 18-11-1987 accepting the appeal filed by respondent No. 1 against the appellants and respondent No. 2 from judgment and decree dated 2-3-1986 passed by the learned trial Court dismissing her suit for declaration instituted against the appellants and respondent No. 2.
2. The facts giving rise to this appeal in brief are that respondent No. 1 filed a suit for declaration regarding a mutation against the present appellants and respondent No. 2 which was dismissed by the trial Court through judgment and decree dated 2-3-1986. This was appealed against by respondent No. 1 before the learned Additional District Judge, Sheikhupura. It was admitted on 7-4- 1.986 and notices were directed to be issued to respondents in appeal i.e. The present appellants and respondent No. 2 for 27-4-1986. Record was also requisitioned for the said date. However, on 27-4-1986 it was found that respondents in appeal were not served therefore the Court passed an order that notices be issued to them for 17-5-1986 and the appellant/respondent. No. 1 was ordered to furnish process fee and correct addresses of the respondents. On 17-5-1986, it was observed by the Court that respondents in appeal could not be served and that according to reports on the registered envelopes respondents Nos. 2 to 4 in appeal refused to take delivery. It has also been recorded in the order dated 17-5---1986, by the learned lower appellate Court that the registered envelope addressed to respondent No. 1 in appeal was not received back after service. Learned lower appellate Court then proceeded to pass order that the respondents in appeal could not be served in the ordinary way therefore they should be served through publication of notices in daily "Saadat" for 16-6-1986. The notices were so published for 16-6-1986 in the said daily newspaper but no order for taking ex parte proceedings was passed on 16-6-1986 because the Presiding Officer of the Court was on leave and the case was to be placed before the Court on 26-6-1986. The proceedings on 16-6-1986 have been recorded by the reader of the Court. On 26-6-1986 when the case was taken up, the learned lower appellate Court passed an order for taking ex parte proceedings against the respondents in appeal on the basis of notice published in the said newspaper for 16-6-1986. The appeal was adjourned from time to time on account of non-receipt of record of the trial Court and ultimately the same was accepted ex parte through judgment and decree dated 18-11-1987 and the suit filed by respondent No. 1 was decreed after setting aside the judgment and decree of the learned trial Court for dismissal of her suit.
3. An application was made on 23-12-1987 on behalf of the present appellants for setting aside the said ex parte decree passed by learned lower appellate Court which has been rejected by impugned order dated 20-4-1988.
4. Record of appeal and application under Order XLI, Rule 21, C.P.C. Of the learned lower appellate Court have been received.
5. I have been taken through the record by the learned counsel for the appellants from which it transpired that four envelopes were filed in the Court for despatch of notices through registered post acknowledgement due to the respondents in appeal i.e. Present appellants and respondent No. 2 for 27-4-1986 and summons were also issued for the said date but there is no summon present on the record regarding service of Mst. Batul Begum the appellant No. 1. On the summon issued to Ghulam Qadir appellant No. 2 the process server reported that he did not live on the said address but was living in Sheikhupura City and similar is the report on the summon issued to A.I Muhammad appellant No. 3. About respondent No. 2 in this appeal it was reported by the process server that he was residing in Ghala Mandi Seikhupura. On the registered envelope sent to Mst.
Batul Begum the postman reported that she was not found at the address given on the envelope. It may be pointed out that in the title of the appeal the address of this Mst. Batul Begurn was given as follows:- "Mst. Batool Begum d/o Nazam Din case Sheikh, r/o House No. 503, Block No. 20, Jhang Megana, at present village Sariawala, District Faisalabad, c/o Muhammad Hassan Tar Babu, Irrigation Department, Gulistan Colony, Faisalabad."
Whereas on the registered envelope her address was given through Muhammad Hussain Tar Babu Agricultural Department Gulistan Colony, Faisalabad (under lining is mine). It may be observed that Irrigation Department which was mentioned in the address of Mst. Batul Begum given in the title of the appeal is certainly different from Agricultural Department mentioned on this envelope.
On the registered envelope despatched to Ghulam Qadir the postman reported that he had refused to accept delivery.. It may be observed here that on the same address when summons were issued to him for the same date i.e. 27-4-1986 the process-server of the Court reported that he was not residing at that address. The registered envelope sent to A.I Muhammad appellant No. 3 is not present on the record therefore it cannot be ascertained as to what was the state of affairs about his service. Neither registered envelope allegedly sent to respondent No. 2 in this appeal nor the postal receipt for despatching the said envelope to him are present on the record. The learned lower appellate Court on 27-4-1986 passed an order for sending notices to respondents in appeal and the appellant/respondent No. 1 was directed to file fresh correct addresses of the said respondents. On the file there is nothing to show that such process fee was deposited alongwith correct addresses of the respondents. The case was fixed for 17-5-1986. However, there is a fard talbana on the file. According to entry of column No. 1 of this form it was filed on 17-5-1986 and two court-fee stamps of the value of Re. 1 each had been affixed. The date of purchase of one of the court-fee stamps is 14-5-1986 and of the other appears to be 28-4-1986.
6. On 17-5-1986, the learned lower appellate Court observed that according to the reports, on the registered envelopes issued to respondents 2 to 4 in appeal they had refused to accept delivery and the registered envelope of respondent No. 1 had not been received and he proceeded to pass an order for effecting substituted service on respondents in appeal through publication of notice in daily "Saadat".
7. Learned counsel for the appellants argued that there is no envelope present on the record for issuance of notice for 17-5-1986 not to speak of any report of refusal to accept their delivery therefore, the learned lower appellate Court was not legally justified to pass an order on 17-5-1986 for effecting substituted service on respondents in appeal. Learned counsel for respondent No. 1 submitted that the registered envelopes containing refusal of respondents 2 to 4 in appeal to accept delivery for 17-5-1986 were on the record when the various orders were passed by the learned lower appellate Court and even at the time of final disposal of the appeal as also the application moved by the appellants under Order 41 Rule 21, C.P.C. On 20-4-1988 which have been got removed by the present appellants thereafter to create evidence to raise a plea which is now being urged. According to him the factum of existence of these documents on the record is manifest from reference to them in the orders of the learned lower appellate Court. He also argued that talbana form now present on the record allegedly filed on 17-5-1986 was not filed by the respondent No. 1 and it has been smuggled in the file by the present appellants in substitution of the fard talbana filed by respondent No. 1 in compliance with the order of the Court dated 27-4- -1986 which has also been got removed by the present appellants.
8. Learned counsel for the appellants further argued that the notice published in daily `Saadat' was not proper service as this newspaper was not commonly known and read by public in general and requirement of law was not complied with even if it is assumed that there was refusal to accept delivery of registered envelope because ex parte proceedings have been taken only on the basis of substituted service through publication of notice in the said newspaper and the previous refusal of envelope was not material inasmuch as the Court did not act on it and proceeded against ex parte. He further argued that even on the basis of said publication of notice in the newspaper, no ex parte proceedings could be taken on 26-6-1986 as the notice was for the appearance on 16-6- 1986 Lind if at all ex parte proceedings could be taken those could be taken on 26-6-1986 and for that matter the case should have been put up before duty Judge which was not done. As far as delay in filing the application is concerned, learned counsel argued that an application under section 5 of the Limitation Act was moved in which it was explained that it was on 22-12-1987 that the appellants came to know about the factum of ex parte decree passed by learned appellate Court, when the same was produced before Patwari Halqa for implementation in the revenue record because the decree was declaratory against the mutation in favour of the appellants. He also submitted that even the addresses of the appellants in the memo of appeal were wrongly mentioned.
9. These controversies require elaborate inquiry and recording of evidence. The application moved by the present appellants has been dismissed by the learned lower appellate Court without framing issues and recording evidence. It was the requirement of law that in such a case the issues should have been framed and after affording opportunity to the parties to produce evidence that such an application was to be decided thereafter.
10. Learned counsel for respondent No. 1 has vehemently controverted these arguments also by arguing that the learned lower appellate Court rightly proceeded to take ex parte proceedings in appeal against the respondents and passed ex parte decree in accordance with law after completing all legal formalities for effecting service therefore this appeal was liable to be rejected.
11. I would refrain from expressing any view on the merits of contentions raised by learned counsel for the parties. I am of the view that the applications of the appellants moved under Order XLI, Rule 21, C.P.C. And under Section 5 of the Limitation Act could not have been rejected summarily without framing issues and recording evidence. The learned lower appellate Court thus acted with material irregularity and illegality in dismissing the said applications without framing issues and recording of the evidence which has resulted in miscarriage of justice and prejudiced the case of the parties.
Learned counsel for respondent No. 1 has levelled very serious allegations about the tampering with the record regarding absence of registered envelopes allegedly present on the record which are new missing according to him. The suit against the appellants failed before the learned trial Court and ex parte decree passed by learned lower appellate Court was certainly affecting their valuable rights therefore the application for setting it aside: moved by them required proper disposal after recording evidence.
12. For the foregoing reasons this revision petition is accepted. The impugned order dated 20-4- 1988 passed by learned Additional District Judge, Sheikhupura is hereby set aside and the case is remanded to the learned lower appellate Court for disposal of the applications of the appellants under Order XLI, Rule 21, C.P.C. And Section 5 of the Limitation Act after framing issues and recording evidence of the parties. Since the learned Additional District Judge who passed the impugned order had expressed opinion about the merits of the case therefore, it is just and proper that the case is heard by some other Court. The appeal is transferred to the Court of learned District Judge, Sheikhupura who may decide the case himself or entrust it to any other Additional District Judge.
The appellants and respondent No. 1 who are represented today through their learned counsel are directed to appear before the learned District Judge, Sheikhupura on 9-2-1989. The case shall be decided within six months from the said date. The parties are left to bear their own costs.
13. It may be observed that no application for setting aside decree was moved by respondent No. 2 before the learned lower appellate Court. He has also not appeared today. It is permissible under the law that on the application of one of the judgment-debtors, for setting aside ex parte decree that the same can be set aside against all the judgment-debtors if the nature of decree is such that it cannot be set aside as against only one of the judgment-debtors. This rule had been enacted in Order IX, Rule 13, C.P.C. Which is applicable by virtue of provisions of section 107, C.P.C. To the proceedings before appellate Court. Since I have directed that the matter shall be decided within six months from 9-2-1989 positively and learned counsel for respondent No. 1 expressed apprehension that the matter may not be further delayed for service of respondent No. 2 in this appeal namely Hidayat A.I therefore it is ordered that in view of this law if the said Hidayat A.I does not appear himself before the learned lower appellate Court there is no need to issue him summon for appearance because if it is found ultimately that the application is liable to be accepted and that the nature of the decree is such which cannot be set aside against the appellants alone, the rule enacted in Order IX, Rule 13, C.P.C. Can be invoked.