' Briefly stated facts of the case out of which this Civil Revision has arisen are that Noor Din son of Wazir, resident of village Shahpur, Tehsil and District Rawalpindi, was owner of land measuring 9 Kanals 9 Marlas situate in the Revenue Estate of Shahpur, District Rawalpindi. He died in the year 1940 leaving behind Mst. Azizan, his daughter, Mst. Masoom Bi, his widow and Mehr Din, deceased predecessor -in-interest of Mst. Iqbal Jan and others, who being his legal representatives, have been impleaded in this revision petition as respondents, after his death. Mehr Din deceased, who is real brother of Noor Din filed a suit seeking declaration to the effect that the deceased having died in the year 1940, and, as he was a Muslim and was governed by custom in matters of inheritance, he is his sole heir and that Mst. Masoom Bi petitioner No,2 was divorced during his lifetime whereas Mst. Azizan petitioner No,1 having married prior to the enforcement of Muslim Personal Law (Sharjah) Application Act, 1948, shall not be entitled to inherit and as the right of maintenance of the widow has since come to an end, therefore, a decree may be passed in his favour declaring that he is the sole owner in possession of the land in question as an heir of the deceased. It is also alleged in the plaint that even if the defendants are held to be the heirs, they have no right to interfere with his possession without filing proceedings for partition. This suit was filed on 16-3-1967, registered on 17-3-1967 and it was directed by the learned trial Court that the defendants should be summoned for 20-4-1967. Summons were issued for 20-4-1967 and were not received back as per initial report but were subsequently received as unserved. Resultantly, the case was adjourned to 22-5-1967 on the basis of the report of the process-server. The report as well as the order dated 20-4-1967 are reproduced as under:- {{URDU TEXT}} 'It is clear from the perusal of the above order that the learned trial Court had directed service of the defendants through affixture without following the procedure as laid down under the provisions of Order V, Rules 18, 19 and 20. On 22-5-1967 on the basis of the report of the process- server to the effect that the defendants have been served through affixation ex parte proceedings were held against the respondents-petitioners and the,case was set down for ex parte hearing on 14-6-1967. It may be mentioned here that according to the Office report initially it has been written that the summons have not not been received back but after this note in a different ink, it is written " and thereafter, it is written " ". The Office report as well as order dated 22-5-1967 are reproduced as under:- {{URDU TEXT}} ' Thereafter, the plaintiff did not produce ex parte evidence on the date fixed and consequently, the case was adjourned for recording of ex parte evidence on 6-7-1967, and, ultimately, the suit was decreed ex parte in favour of the plaintiff vide judgment and decree dated 29-7-1967. On 12-2-1983, Mst. Azizan and Mst. Masoom Bi defendants on coming to know of passing of the ex parte decree against them filed an application seeking setting aside of the ex parte decree on the ground that the said decree has been obtained by fraud, misrepresentation and false reports on summons and that the petitioners neither have the knowledge nor intimation of the suit filed by the plaintiff-respondent. It is alleged in the application that the petitioners acquired knowledge of the decree on 9-2-1983 when a suit for recovery of the produce was filed by the respondent against Karim Bakhsh son of Qaim Din, who was the tenant of the petitioners and is husband of Mst. Azizan. This application has been contested by the deceased-respondent. On the basis of the pleadings of the parties, learned trial Court settled following issues:-
(1) Whether the application is within time? OPA.
(2) Whether the sufficient ground exists to set aside the ex parte decree? OPA. ' and after recording of evidence dismissed the application vide order dated 26-10-1985. This order was challenged by the petitioners before the learned District Judge, who dismissed the revision petition filed by the petitioners vide order dated 27-5-1986. Orders dated 27-5-1986 passed by the learned District Judge and 26-10-1985 and ex parte decree dated 29-7-1967 passed by the learned trial Court have been challenged in this Civil Revision.
2. Mr. Bashir Ahmed Ansari, Advocate appeared on behalf of the petitioners and Hafiz Saeed Ahmed Awan, Advocate has appeared on behalf of the respondent. Learned counsel appearing for the petitioners has argued that the petitioners were never served in the suit and therefore, the ex parte decree having been passed against them was void ab initio and having been challenged on acquisition of knowledge within a period of thirty days was liable to be set aside but the learned lower Court has illegally refused to set aside the ex parte decree, learned counsel has further contended that there was absolutely no ground to direct service of the petitioners through affixation, and, therefore, the order passed by the learned trial Court to get the petitioners served through affixation being illegal and without jurisdiction, the ex parte decree is void ab initio and is liable to be set aside.
3. As against the above arguments addressed by the learned counsel for the petitioners, learned counsel for the respondent has argued that the application is clearly barred by time, and, therefore, has rightly been dismissed by the learned trial Court. Learned counsel has further contended that the petitioners were served in accordance with law and therefore, the ex parte decree having been passed against them, it was necessary to challenge the same within a period of 30 days and at the most within a period of three years, and, as the petitioners have not challenged the same within time, the ex parte decree cannot be set aside in this Civil Revision.
Learned counsel has further contended that the two Courts below have concurrently held that the petitioners were properly served and therefore in exercise of revisional jurisdiction of this Court concurrent findings of fact regarding service of the petitioners cannot be interfered with. According to the learned counsel new claim has been set up in this revision petition, although in the application it was not the case of the petitioners that they have not been served. Learned counsel has argued that it is in fact Karim Bakhsh, who was cultivating the land since 1966 as tenant has managed the filing of the application for setting aside of the ex parte decree when proceeded against for payment of share of produce, otherwise, the petitioners were in the know of the decree right from the very beginning and had not challenged it.
4. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. In order to appreciate the contentions raised by the learned counsel for the parties, it will be necessary to reproduce certain provisions of Code of Civil Procedure as well as the Limitation Act.
Order V, Rule 10, Civil P.C. "Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court."
Order V. Rule 12. "Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient."
Order V. Rule 15. "Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him. Explanation: "A servant is not a member of the family within the meaning of this rule".
Order V. Rule 17. "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, 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."
Order V, Rule 18. "The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the meanner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."
O.V. R.
19. "Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the Serving Officer, and may, if it has been so verified, examine the serving officer on Oath, or cause him to be so examined by another Court touching his proceedings, and may make such further inquiry in the matter as it thinks fit: and shall either declare that the summons has been duly served or order such service as it thinks fit."
O.V.R.
20.-(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 foi 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) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) 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."
' ARTICLE 164 OF THE LIMITATION ACT, 1908 "By a defendant for an order to set aside a decree passed ex parte. Thirty dadys.The date of the decree or an where the summons was not duly served, when the applicant has knowledge of the decree."
' A perusal of the aforementioned provisions of the Civil Procedure Code clearly shows that the service of the defendants in a suit is to be effected in person.
' It is only in those cases where the service is not at all possible that the substituted service can be directed. The period of limitation to challenge an ex parte decree is 30 days w,e,f, the date of knowledge as per provisions of Article 164 of the Limitation Act referred to above, in case where the defendant's plea is that he has not been served. In the case in hand, summons were issued twice.
Summons were issued for the first time for 22-5-1967. This summon appears to have been received back unnerved with the following report on its back: {{URDU TEXT}} ' It is clear from the above report that the process-server when went to effect service was told that Karim Bakhsh is Mukhtar-e-Khas but as he is not present in the house, therefore, the service cannot be effected. This report appears to have been signed by one Mahboob Shah as a witness whose particulars are not mentioned on the summon. On the basis of the said report, the learned trial Court instead of directing issuance of fresh summons in the ordinary manner passed an order to the effect that the service should be directed through affixation. The proceedure as provided in the provisions of Rules 18 and 19 of the Civil Procedure Code was not followed and the process-server was not even examined by the Court. The report is also not accompanied by an attested affidavit of the process-server. In pursuance of the order passed by the learned trial Court, another summon appears to have been issued to the petitioners wherein it is ordered that the service may be effected through affixation. The process-server on 19-5-1967 has reported on the back of the summon that both the defendants are not present in their house and therefore, he has affixed the summon on the outer door of their house. This summon has also been attested by one Mehboob Khan as a witness whose particulars are not mentioned on the summon. The report also does not mention the name of the person in whose presence the summon was affixed on the outer door of the house of the petitioners nor any time is mentioned on the report. The report on the back of the summon is reproduced as under:-- {{URDU TEXT}} ' Learned trial Court considered the above service as sufficient and proceeded against the petitioners ex parte as they were absent. It is clear from the above mode of effecting service upon the petitioners that the learned trial Court did not follow the law while directing substituted service.
The report on the previous summon having not been attested by the two witnesses and being not supported by an affidavit on Oath, could not have been formed basis for directing substituted service without examining the process-server. Consequently, the order of effecting substituted service of the petitioners passed by the learned trial Court being void ab initio, the subsequent service through affixation is also void ab initio. Even otherwise, the substituted service has also not been effected in accordance with law, and report of the process-server clearly shows that the petitioners were not present in their house. The names of the witnesses have not been mentioned in the report in whose presence the summons were affixed on the outer door of the petitioners' house. Particulars of Mehboob Shah and Mehboob Khan, who is said to have signed both the reports are not present on the summons and it is not clear as to who was this person, who has attested the report of the process service as a witness. The time of affixation is also not mentioned in the report of the process-server nor his statement has been recorded before declaring that the service is sufficient and therefore, the order dated 22-5-1967 passed by the learned trial Court whereby the petitioners were proceeded against ex parte is also illegal and without jurisdiction.
Karim Bakhsh A.W.1 has appeared as a witness and has categorically stated that Mst. Azizan Begum petitioner is his wife and Mst. Masoom Bi petitioner No,2 is his mother-in-law and he is their Special Attorney. He stated that he has been cultivating the land in question on behalf of the ladies and it was only in January 1983 when it transpired that ex parte decree has been passed when a suit for recovery of produce was filed against him. The petitioners are illiterate village folk ladies and therefore, the presumption would be that they had absolutely no knowledge about the passing of the decree against them unless and until it was shown by the respondent that they acquired a knowledge of the decree prior to the time on which they had alleged that the knowledge thereof was acquired by them in February, 1983. Mehboob Khan, who had allegedly signed the reports of the process-server with regard to the petitioners' service has not been produced as a witness as he is stated to have since died. Even the process-server has died and he has also not been produced as a witness. Consequently, there is absolutely nothing on record to show that the petitioners were ever served in accordance with law and had acquired knowledge of the decree passed against them. Mehr Din has stated that Mehboob Shah was the Lumbardar of the village but the report on the summons shows that it was one Mehboob Khan who had signed the second summons on the basis whereof petitioners were proceeded against ex parte. It is quite clear therefore that the reports made by the process-server are collusive and forged and at any rate-not in accord with law; hence on the basis thereof, the petitioners cannot be said to have been validly served and neither ex parte proceedings could have been taken nor ex parte decree could have been passed against them. The two learned Courts below have dismissed the application filed by the petitioners on the ground that it is barred by time and further that they were properly served. The view taken by the Courts below is quite erroneous and as such without' lawful authority. The petitioners being ladies, it was for the respondent to have shown that they acquired knowledge of the decree prior to 9-2-1983, the date which has been alleged by them as being the date of their knowledge of the ex parte decree and that they were properly served in accordance with law. It has been held in case Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 that so far as the ladies are concerned, onus is always upon the other side to show that the transaction or the events as alleged have taken place. Although in the case in hand, it is not a case of testing the validity of a transaction, yet the principle envolved in the case of Ghulam Ali referred to supra can be pressed into service while deciding the question as to whether in the given circumstances of the case, it can be said that the service of the petitioners had been effected in accordance with law, and, applying the test laid down in the judgment referred to above, it cannot be said that the petitioners were served. The Courts below therefore, while deciding the issue of limitation as well as the issue of service of petitioners have misdirected themselves and have exercised their jurisdiction illegally and with a material irregularity.
5. Law favours adjudication on merits. Decision on merit is a rule and technical knock out is an exception. In the case in hand, by virtue of ex parte decree, the respondent wants to deprive of the widow and daughter of the deceased from his inheritance, although they may be entitled to as per provisions of section 2-A of Ordinance XII of 1983 read with the provisions of Muslim Personal Law (Shariat) Application Act, 1948. The lady heirs of a Muslim owner cannot be deprived of their inheritance with such like tactics as has been adopted in this case on the basis whereof ex parte decree has been obtained by the respondent. On this account as well, ex parte decree is not maintainable, inasmuch as, the decision as to whether the petitioners can inherit the deceased under the Muslim Personal Laws (Shariat) Application Laws, shall also have to be rendered in this case in view of the provisions of G section 2-A of Ordinance XIII of 1983 as interpreted in case of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407). On this score as well, the ex parte decree is liable to be set aside in the interest of justice, so that while deciding the suit, the learned trial Court decides the suit from this angle as well.
' Resultantly, I accept this Civil Revision, set aside the impugned orders as well as the ex parte decree passed by the learned trial Court and direct that the learned trial Court shall decide The suit on merits in accordance with law. The cost shall follow the events.