1. ' By this order I propose to dispose of C.MA. 5504 of 1989 in Suit No, 633 of 1988, C.MA. 5507 of 1989 in Suit No,634 of 1988, C.MA. 5501 of 1989 in Suit No,817/88 and C.M.A. 5510/89 in Suit No,6 of 1989, all under Order 9, Rule 13, C.P.C. For setting aside the ex parte judgment and decree as all these applications involve identical points for determination.
2. ' The almost similar facts giving rise to these applications are that Suit No,633/88, Suit No,634/88, Suit No,817/88 and Suit No,6/89 were instituted by the respective plaintiffs named therein against Shaikh Sajjad Hussain who is named defendant in all the suits for the specific performance and permanent injunction claiming that like several other persons the respective plaintiff too had invested substantial amount with the said defendant on the promise of a profit at the rate of 5 per cent per month. The defendant having failed to pay the promised profit approached the plaintiff in each suit and offered to sell the suit property against the amount invested by the respective plaintiff which offer was accepted and separate agreement to sell for the suit property in each of the said suit was executed and possession of the property was handed over to the respective plaintiff. Initially the K.D.A. Was impleaded as defendant in all these suits and in two of the suits the FIA was also made a defendant but subsequently both these were given up. It may be stated here that Suits Nos.633/88 and 634/88 were instituted on 17-8-1988, Suit No,817/88 on 4-10-1988 and Suit No,6 of 1989 on 3-1-1989.
3. ' It seems from the file that several attempts were made to serve summons of the suits on the defendant through the bailiff but he could not be served. In these circumstances application under Order 5, Rule 20, C.P.C. For substituted service was moved by the plaintiff in each of the said suits which was granted and the summons was published in the newspaper 'DAWN'. The publication in Suits Nos.633/88 and 634 of 1988 was made on 5-10-1988, in Suit No,817/88 on 13-11-1988 and in Suit No,6/89 on 13-3-1989. Ultimately, by separate judgments dated 27-11-1988, 27-11-1988, 11-12-1988 and 1-6-1989 passed in Suits Nos.633/88, 634/88, 817/88 and 6 of 1989 respective these suits were decreed with costs against the defendant who is common in all the suits.. Thereafter, the defendant filed the present applications under Order 9, Rule 13, C.P.C. In the said suits on 15-8-1989.
4. ' The learned counsel for the defendant, Mr. Dewan Bashir Ahmed, has made two main contentions in support of the applications under Order 9, Rule 13, C.P.C. Firstly, he stated that as the defendant was out of Pakistan from 7-7-1988 to 20-6-1989 there was no question of his avoiding the summons of the suit and for that reason he was also not in a position to notice the publication.
5. Secondly, he submitted that the substituted service should have been effected by all the three modes, namely, affixation in the Court premises, affixation at the last known address of the defendant and by publication and if there was no proper affixation the substituted service could not be held good.
6. ' With regard to the first point the learned counsel submitted that as several cases by State Bank of Pakistan, F.I.A. Etc. Were in progress against the defendant at the time these suits were filed, he had left the country to save himself from arrest. He stated that the defendant left Pakistan on 7-7-1988 and returned on 20-6-1989 and as such when the suits were filed and the summons were published as also when these suits were decreed the defendant was already out of Pakistan and this according to the learned counsel was a genuine ground to establish his bona fides. Alongwith his affidavit the defendant has filed photostat copy of some of the pages of his Passport to substantiate his claim of being out of Pakistan during the aforesaid period. From the copy of the passport it seems that the defendant was a frequent visitor to Thailand and Malaysia. On my query about defendant's entry date in Pakistan in the Passport, the learned counsel with the help of the defendant, who was present in Court, pointed out at page 27 of the Passport a stamp of the Immigration, Karachi Airport. However, as the date on this was not legible the defendant referred to the departure stamp of the Immigration Division of Thailand endorsed on page 26 of the passport on which the date '19 JUNE 198' is clearly mentioned. As such, it can be assumed that the defendant entered Pakistan on 19th or 20th June, 1989. However, the defendant and his counsel could not point out in the Passport any exit stamp of the Pakistan Immigration showing that the defendant had left the country on 7-7-1988 as claimed by him in para. 3 of his application. His explanation for this was that had he gone through the Immigration at the Karachi Airport he would have been arrested, as such he managed to avoid the immigration and flew in either to Thailand or to Malaysia but again he was unable to show any endorsement of visa of Thailand or of Malaysia which was valid on 7-7-1988. Faced with this the defendant stated that as it was not safe for him to get visa at Karachi he obtained the same on arrival in these countries. On scrutiny of the Passport I noticed on page 23 a Malaysian visa dated 13-5-1989 and on page 24 Thai visa dated 14-5-1989, both apparently having been obtained on arrival in the said countries. The defendant could not explain as to how these visas were obtained on 13-5-1989 and 14-5-1989 when he claimed to have left Pakistan on 7-7-1989. Thus it would seem that the defendant did not leave Pakistan on 7-7-1988 as stated by him but left on 13-5-1989 on which date he arrived in Malaysia and got the visa at the Airport and from there it appears the defendant proceeded to Thailand to next day and obtained visa at the Bangkok Airport on 14-5.1989. Before 13-5-1989, as mentioned above, all the aforesaid suits had already been instituted, summons in all these suits had already been published and decree in all, except Suit No,6/89, had already been passed. It is, therefore, obvious that the defendant purposely made a mis-statement about the date of his departure from Pakistan with a view to cover the entire period starting from the institution of the first suit on 17-8-1988 and ending with the decree in the last suit on 1-6-1989. Having regard to the circumstances of the case and the conduct of the defendant I am satisfied that the defendant had full knowledge of the dates of hearing in these suits in sufficient time so as to appear on these dates but he deliberately kept away and his stay abroad for about a month, from 13-5-1989 to 20-6-1989 was with the sole purpose of making out a case for the setting aside of the decree passed against him in these suits.
7. ' The next contention of learned counsel was that under Order 5, rule 20, C.P.C. It was necessary that the substituted service be effected by affixation of a copy of the summons in the Court premises as also at the house of the defendant in addition to publication. The learned counsel relying on the cases of Baltistan Boutique v. District & Sessions Judge, Karachi 1987 CLC 428 and Fateh Gul v. M.
8. Anwarul Huda 1987 CLC 635 submitted that service by affixation in order to be proper must be witnessed by two persons and supported by a statement on oath of the bailiff. In these suits, he stated, that as there was no witness to the affixation of the summons and also as report of the bailiff in two Suits Nos.633/88 and 634/88, was not even on oath there was no proper affixation and as such the substituted service by reason of these defects was not in accordance with rule 20 of Order 5, C.P.C. And therefore of no legal effect. Rule 20 of Order 5 reads as under:- "20. Substituted service.--(1) Where 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 shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(2) Effect of substituted service.--Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted time for appearance to be fixed.--Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
9. On a simple reading of the aforesaid provision of rule 20 it seems that though it provides for affixation of copy of the summons at the Court premises and the house of the defendant it vests in the Court the discretion to order such service in such other manner as the Court thinks fir. This expression, in my view, gives to the Court the discretion to order substituted service in a manner other than by affixation of the summons, as provided for in the rule.
10. In the present suits in addition to the publication of the summons the copy of summons appears to have been affixed at the Court premises and at the last known address of the defendant as is apparent from the report of bailiff on the respective summons. It is true that the bailiff's reports in Suits Nos.633 of 1988 and 634/88 do not appear to be on oath and there is also no witness to the affixation in any 'of the four suits, though in Suit No,6 of 1989 bailiffs report which is on oath explains that no one from the persons present was prepared to be a witness, it seems to me that, in the circumstances of these cases where service by publication in newspaper' had also been effected on the orders of the Court, even if there was some irregularity in proving the affixation of summons it cannot be made basis for the setting side of the decree for I am satisfied, for reasons stated earlier, that the defendant had knowledge of the date of these suits.
11. ' In this view of the matter I find no force in the aforesaid applications filed by the defendant under Order 9, rule 13, C.P.C. And dismiss the same.