1. ' The facts leading to the timing of the present application under section 115, C.P.0 briefly stated are as follows:- ' Respondents Muhammad Jaleel and Muhammad Ameen filed a suit for declaration and possession in respect of a construction raised over a plot bearing No,GW-12, Excise & Taxation No,AK-2090 S.21, measuring about 45 sq. Yds, situated in Singoo Lane, Karachi. They claimed that their father Abdur Rasheed, since deceased, in his lifetime had through an agreement to sale executed on 30-8-1971 purchased Katcha constructions raised over it from an unauthorised occupant Muhammad Sadiq. Thereafter Abdul Rasheed expired on 17-11-1971 at his village in District Jhelum. He left behind Mst. Zulaikhan Bibi his widow and his two sons, Respondents herein. Mst.
2. Zulaikhan Bibi, their mother, had married Muhammad Zaman, the Applicant herein, in 1979. He had therefore, shifted and started living with them in the said premises. Subsequently due to some dispute with the Applicant both the Respondents quietly returned to their place in Punjab. Their mother Mst. Zulaikhan Bibi also died on 30-1-1988. They became the owners of the property in question as the heirs of Mst. Zulaikhan Bibi and deceased Abdur Rasheed. They filed a suit as the Applicant and Respondents 3, 4 and 5 continued to be in illegal possession of premises in question.
3. ' The Applicant and Respondents 3, 4 and 5 who were the Defendants in the suit were not served in the ordinary way. The two Respondents Muhammad Jaleel and Muhammad Ameen, the plaintiffs in the suit, applied for their substituted service. Their service in the suit through publication in daily "Huriyat" was held well by the order passed by the Trial Judge on 23-7-1988. The suit was adjourned to 16-8-1988 affording a chance to the Defendants to appear in Court on the adjourned date. On 16-8-1988 they did not appear in Court and an order was passed by the Trial Judge for proceeding against them ex parte. The suit was adjourned to 4-9-1988 for ex parte proof.. On the adjourned date affidavit in proof of ex parte order was filed and the suit was decreed ex parte on 28-9-1988.
4. ' The Respondents 1 and 2 herein then filed an execution application. In the execution proceedings, the Applicant and Respondents 3, 4 and 5 were served through pasting of the summons on the outer door of the premises. On 30-10-1988 the service of the execution proceedings was held good and writ for possession issued. The Respondents 3, 4 and 5 were dispossessed and possession of the premises handed over to Respondents 1 and 2 on 6-12-19M.
5. ' The Applicant then on 21-12-1988 filed an application under Order IX, rule 13, C.P.C. For setting aside the ex parte judgment and decree. He claimed that he was not aware of the suit against him and for the first time he became aware on 8-12-1988 when he received a telegram from his son Adalat informing him that Respondents 3, 4 and 5 were dispossessed from the premises in question under orders of the Court. He returned to Karachi from Punjab. On further enquiries he was informed by his son that the decree was executed on 6-12-1988. He thereafter immediately within prescribed time filed an application mentioned herein above. He simultaneously filed an appeal as well against the judgment and decree passed in the suit by the Trial Judge.
6. ' The application filed under Order IX, rule 13, C.P.C. Was resisted by Respondents 1 and 2 and the Trial Judge dismissed it on 1-4-1989. The., Applicant then filed 'an appeal against this order. The appeal so filed was taken up alongwith the appeal initially filed against the judgment and decree.
7. The Appellate Judge after hearing parties dismissed the appeal with certain modifications in the decree on 8-10-1989. It is against the order of the District Judge Karachi (South) passed in C.MA.
8. No,40/1989 on 8-10-1989. That the present application under section 115, C.P.C. Has been filed.
9. ' Mr. A.W. Wyne, Advocate for the Applicant, has mainly contended that the initial order passed by the Trial Judge under Order V, rule 20, C.P.C. Whereby he had permitted Respondents 1 and 2 to serve the Applicant by substituted service was an illegal order. In support of his such contention he has referred to the order passed on 31-5-1988 on the application of the Respondents 1 and 2 filed under Order V, rule 20, C.P.C. The Plaintiff had stated therein that the summons issued twice or thrice for the service of the Defendants were returned unnerved. It is on that account they pointed out that it appeared that the Defendants were avoiding service of the summon in the ordinary way to delay the proceedings. The Trial Judge merely passed a short order without any reasons by recording "Allowed". This application was filed on 31-5-1988 when on 26-5-1988, the date of hearing of the suit, it was noted in the order sheet that bailiff had reported that Defendant No,1, had gone to Jhelum while the remaining Defendants 2 to 4 refused to receive the summons. It was then ordered to issue notices to the Defendants for 14-7-1988. In the meanwhile this application under Order V, rule 20, C.P.C. Seems to have been filed on 31-5-1988 and orders mentioned above passed by the Trial Judge. On the basis of the above facts he contended that the order allowing substituted service passed on 31-5-1988 was an illegal order. It has been pointed out by Mr. A.W. Wyne, Advocate for the Applicant, that it is evident from the report' of the bailiff that notice was not pasted on some conspicuous place of the Court House and therefore the Trial Judge was not right in holding that the substituted service was a good service in the present case. He has further pointed out that after the service was held good by the order passed on 23-7-1988, the suit was adjourned to 16-8-1988 and no notice was issued for the adjourned date of hearing, although the Trial Judge had said that a last chance was given to the Defendants to appear before the Court on 16-8-1988. He has relied on cases reported in 1986 SCMR 1228, PLD 1979 SC 18 and PLD 1975 SC 678.
10. ' On merits MrA.W. Wyne, Advocate for the Applicant, contended that in due course of time the lease of the plot was regularised in favour of the Applicant and lease executed in his favour. Under the circumstances he pointed out that the suit could not have been even decreed under section 42 of Specific Relief Act without first cancelling the lease-deed and the judgment and decree passed in the suit are void ab initio.
11. ' Syed Ahmed Farooqui, appearing for the Respondents 1 and 2, contends that the only ground urged by the Advocate of the Applicant is that the notice was not pasted on a conspicuous place of the Court. Such a failure will utmost amount to a technical non-compliance of the provision of Order V rule 20, C.P.C. And will amount to an irregularity. Otherwise both the Courts below have given a concurrent finding on facts in favour of Respondents 1 and 2. Such findings, according to him, cannot be disturbed in exercise of revisional jurisdiction under section 115, C.P.C. On the first point he has referred to PLD 1979 SC (AJ&K) 120 while on the second point he has relied on the case reported in PLD 1964 Kar.
149. He has further relied on the cases reported in PLD 1966 Pesh. 70, PLD 1967 Lah.854, PLD 1969 Lah.506, PLD 1966 Dacca 110. PLD 1973 SC 36, PLD 1970 SC 288, PLD 1977 Kar. 107, PLD 1964 Dacca 300.
12. ' Syed Ahmed Farooqui, Advocate for the Respondents, further contended that although the Applicant for the first time had pointed out that the lease of the plot was regularised in his favour in the affidavit that they had filed in support of his application to set aside ex parte judgment and decree, appellate Court had sufficiently safeguarded his interest in respect of the lease of the plot by 'modifying the judgment and decree restricting the application to the structure only. The modified decree did not exentd to title over the land. The Applicant therefore could have no grievance to approach this Court.
13. It appears that both the lower Courts had taken documents relating to the Excise & Taxation Survey, electric connection and the sale agreement to be the proof of ownership of the structure.
14. The documents relating to the Excise & Taxation Department are at best the documents that can entitle the department to recover their taxes from occupants but can never be taken to be the evidence of ownership of a premises.
15. On close examination of the affidavit filed in support of application filed under Order V, rule 20, C.P.C., it can be seen that nowhere in the Affidavit it has been stated that the Applicant, who was the Defendant in the suit, could not be served through the ordinary mode of service. The Bailiff's report incorporated in the order sheet dated 26-5-1988 clearly shows that the Applicant had gone to Jhelum while all along in the. Address for summons, he has been shown to be resident of Karachi. The Trial Judge also did not give any reasons to show that he was satisfied that the Applicant could not be served by the ordinary methods to allow such an application.
16. ' Under the circumstances as laid down in the two cases relied on by Mr. A.W. Yen, the Advocate for the Applicant, it can even at this stage be shown that the initial order allowing substituted service was illegal.
17. In view of above both the Courts below have exercised their jurisdiction illegally and their judgments are set aside. This application is allowed with no order as to the costs, and the case is remitted to the trial Court to proceed with the suit further in accordance with law and expeditiously decide it within a period of six months from today.