' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment of the Additional District Judge, Sargodha dated 8-5-1988 whereby he dismissed a revision petition filed by the petitioner and affirmed the order of the trial Court dated 4-2-1988 setting aside the ex parte decree dated 27-2-1984 passed in favour of the petitioner and against Muhammad Nazir Ahmad, predecessor of respondents Nos. 3 to 7 and Umar Hayat, respondent No,8.
2. Briefly stated the necessary facts are that a suit for possession through pre-emption was filed by, Khan Muhammad petitioner against Umar Hayat, respondent No,8 and Muhammad Nazir Ahmad, predecessor of respondents Nos.3 to 7 with respect to agricultural land situate in Chak No,4/NB, Tehsil Bhalwal, District Sargodha. This suit was decreed ex parte in favour of the petitioner on 27-2- 1984. On 11th May, 1986, an application under. Order 9, rule 13, C.P.C. Was filed by Muhammad Nazir Ahmad for setting aside the ex parte decree on the ground that he was not served with any summons in the suit. This application was contested by the petitioner. The trial Court after framing the necessary issues and recording the evidence of the parties found that Muhammad Nazir Ahmad had not been served in accordance with law in the suit and the ex parte decree was liable to be set aside. It was also held that the application for setting aside the decree was within time from the date of the knowledge. Aggrieved of this order the petitioner filed a revision which was dismissed by the Addl. District Judge on 8-5-1988.
3. Malik Noor Muhammad Awan, learned counsel for the petitioner, firstly contended that the learned Civil Judge who set aside the ex parte decree was enjoying the powers of a Civil Judge III Class and could only deal with the matters the value of the subject-matter of which did not exceed Rs,20,000 and as such the order passed by him is without jurisdiction as the suit in which decree was passed was valued for the purpose of jurisdiction at Rs,90,616. No such objection was raised by the petitioner before the learned Civil Judge who was hearing the application for setting aside the ex parte decree nor even before the revisional Court. The petitioner had been appearing without protest or reservation before the Civil Judge and has as such acquiesced in the proceedings and cannot be permitted to raise such an objection for the first time before this Court. It is since long settled that the grant of relief in a petition under Article 199 of the Constitution is in the discretion of the Court and even if the order impugned before the High Court suffers from legal error the High Court will not interfere if the petitioner is disentitled by his conduct or on the principle of estoppel to grant of any relief. (See Muhammad Ismail v. Abdul Rashid and two others (1983 SCMR 168).
' It is interesting to note that the petitioner had himself filed revision before the District Court although revisions arising out of suits, the valuation of the subject-matter of which is more than Rs,50,000 were at that time filed before this Court and not the District Courts. Be that as it may, no prejudice has been shown to have been caused to the petitioner by disposing of the application under Order 9 rule 13, C.P.C. By the Civil Judge and on the principle contained in section 11 of the Suits Valuation Act, 1887, no relief can be granted. This provision though not strictly applicable embodies a salutary rule of law which can be extended to the present case.
4. It was next contended by the learned counsel for the petitioner that the application filed by the predecessor of respondents Nos.3 to 7 and respondent No,8 was barred by time even from the date of their knowledge inasmuch as they had obtained a copy of a mutation on 28th November, 1985 in which the fact that an ex parte decree has been passed against him stood duly recorded.
Both the Courts below have held that the ex parte decree was procured by the petitioner by practising fraud by providing wrong address of the defendant. The fact that the defendant was not residing at the given address also stands established by the report made by the process-server on the summons. Unfortunately, however, the trial Court instead of insisting that the correct address of the respondents be supplied, proceeded to direct service through substituted means for which there appears to be no justification at all.
' Under Order 5, rule 20, C.P.C. Substituted service can only be ordered, E where the Court is satisfied that there are reasons 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. It was held in Malik Muhammad Nazir v. Mian Abdur Rahim and another (PLD 1968 Lah. 792) that where there was no sufficient material on the record to show that a defendant is either avoiding service or refusing to accept the service, the order for substituted service could not have been passed nor can ex parte proceedings be ordered on the basis of such service. It was further observed in the precedent case that in such like matters the question of limitation does not arise and the application would be governed by Article 181 of the Limitation Act, 1908. This view, I respectfully follow.
5. Be that as it may, the trial Court by setting aside the ex parte decree has done substantial justice between the parties who have been restored to their original position. Consequently, even if some illegality as alleged by the learned counsel for the petitioner has been committed by the lower Courts, I am not C inclined to interfere in the exercise of Constitutional jurisdiction of this Court, inasmuch as it is still open to the petitioner to prosecute his suit on merits against the defendants.
There cannot be any cavil with the proposition that the law favours adjudication on merits after providing the parties sufficient opportunities of being heard and technicalities cannot be allowed to come in the way of achieving this supreme object. Reference may be made to Gul Muhammad and others v. The Addl. Settlement Commissioner and others (1985 SCMR 491).
' For the reasons aforesaid, this writ petition is dismissed leaving the parties to bear their own costs.