' Respondent M/s. Naeem Tariq and others filed a suit in the Court of learned Civil Judge, Lahore seeking a declaration of title in relation to a sale-deed which had been executed by them in favour of Sh. Muhammad Hussain, the present petitioner. Process was issued in the suit for the service of Sh. Muhammad Hussain petitioner but it was reported that village Malipura, the address which- has been mentioned in the summons is a vast Abadi and unless and until house number and street number is mentioned in the summons, service is not possible. Thereafter the summons on the same address with the aforementioned lapses are reported to be affixed in a {{URSU TEXT}} as well as {{URSU TEXT}} and ultimately a proclamation in the newspaper was also made as per the same address. On the file of the trial Court, there is neither any registered envelope nor receipt. A.D.
Showing the service or refusal of service by the petitioner. On the basis of the aforementioned alleged service of the petitioner, ex parte proceedings were held and an ex parte decree was passed in favour of the plaintiffs-respondents on 11-4-1987. On coming to know of the passing of the ex parte decree on 29-5-1988, the petitioner filed an application seeking setting aside of the ex parte decree on the ground that he has never been served in the suit and that he acquired knowledge of passing of the decree on 29-5-1988 and hence filed the application for setting aside of the ex parte decree on 12-6-1988 i,e, within 30 days from the date of acquisition of knowledge with regard to passing of the ex parte decree against him. Alongwith the petition, he submitted an application under section 5 of the Limitation Act seeking condonation of the delay in filing of the application for setting aside of the decree. This application has been contested by the contesting respondents inter alia on the ground that the application is barred by time and that the petitioner was served and further that the petitioner had the knowledge of the ex parte decree even prior to the date which has been mentioned in the application, therefore neither is there any sufficient cause for setting aside of the ex parte decree nor the application is within time and therefore there being no sufficient reason to condone the delay, the application is liable to be dismissed. The learned trial Court settled the following issues:--
(1) Whether there are sufficient reasons to set aside ex parte judgment and decree dated 11-4- 1987? OPA
(2) Whether this application is within time? OPA
(3) Relief.
2. After recording evidence produced by the parties which consists of the statement of the petitioner as A.W.1 and statement of Raheel Mahmood one of the respondents as R.W.1, the learned trial Court vide order dated 7-12-1989 accepted the application and set aside the ex parte decree.
Both the issues were decided in favour of the petitioner. Learned Trial Court mainly relied upon the factum of initial report on the process issued by the Trial Court which clearly demonstrates that the ex parte decree was obtained by the respondents by mentioning incorrect and insufficient address of the petitioner. The delay has also been condoned by the learned Trial Court on the ground that the application is within time from the date of knowledge of the decree. Aggrieved by the said order, respondents Nos,1 and 2 filed a revision petition before the District Court of Lahore which has been accepted by the learned Additional District Judge, Lahore vide order dated 30-7-1990. The learned Additional District Judge has held that the order-sheet on the file of the Trial Court as well as reports on the summons relating to the initial service of the petitioner could not have been relied upon by the learned Trial Court unless and until they were produced in evidence recorded in the application for setting aside of the ex parte decree. The learned Addl. District Judge has further held that the petitioner has failed to explain the delay of each day in filing of the application and as the petitioner has failed to explain the delay, consequently the learned Trial Court has illegally condoned the delay in filing of the application. Learned Additional District Judge has further held that the statement of A.W.1 is vague and therefore it cannot be said that he has proved a sufficient cause for setting aside of the ex parte decree. This Constitutional petition has been filed by the defendant petitioner against the order passed by the learned Additional District Judge.
3. In support of the writ petition, learned counsel for the petitioner has contended that the order passed by the learned Additional District Judge is arbitrary, perverse and is based upon conjectures. Elaborating his arguments, learned counsel has contended that while deciding the question of service or otherwise of a defendant, the learned Trial Court was well within its rights to have gone through the order sheet on the original file as well as the reports on the summons with regard to the initial service of the petitioner and that there is no legal bar to look into the above material while deciding the question as to whether a defendant has been properly served or not.
Learned counsel has further argued that the statement of A.W.1 is categorical and in fact a fraud has been committed in this case and by mentioning of a vague and incomplete address of the petitioner, an ex parte decree has been obtained in a title suit which has resulted in the cancellation of a registered sale-deed. This decree has been passed even without recording of evidence which could prove that the decree in favour of the petitioner is based upon fraud or is otherwise liable to be cancelled. Learned counsel has argued that no effort was ever made to serve the petitioner through registered post and proclamation in the newspaper will be of no legal effect as the same had been procured on the basis of the reports of the process-server which did not contemplate the passing of an order for the substituted service of the petitioner. According to the learned counsel, the order of substituted service being without lawful authority, it shall be deemed that the petitioner was never served.
' As against the above arguments, raised by the learned counsel for the petitioner, Sh. Khalil-ur- Rehman learned counsel for the respondents has contended that although the learned Trial Court could rely upon the reports of the process-server on the summons which were issued at the initial stage yet the service having been effected through a proclamation in the newspaper, the petitioner cannot get any benefit out of the reports which show that his address was incomplete.
Learned counsel has further argued that onus was upon the petitioner and he has failed to discharge that onus and therefore it cannot be said that he has proved that there was a sufficient cause for his absence on the date of hearing or that there is a sufficient cause for condonation of delay in filing of the application.
4. I have considered the arguments addressed by both the learned counsel for the parties and I feel that the learned Additional District Judge while setting aside the order passed by the learned Civil Judge has failed to follow the law on the subject and has also relied upon surmises and conjectures. There is absolutely no legal bar to rely upon the reports of the process-server on the summons initially issued while deciding the question of service of the defendant-petitioner. Service through proclamation being without jurisdiction, is of no legal effect and therefore, the learned Trial Court had rightly held that the petitioner was never served in the case and therefore in exercise of the discretion, ex parte decree was rightly set aside. Statement of A.W.1 which has been recorded on oath clearly proves that the petitioner was never served and that he acquired the knowledge of the ex parte decree on 29-5-1988. He filed the application on 12-6-1988 which is quite within time inasmuch as the period of limitation is to start from the date of knowledge. Consequently it is not, in fact, a case of condonation of delay and the petitioner as of right could have filed an application for setting aside of an ex parte decree within 30 days from the date of knowledge. The order passed by the learned Additional Judge is therefore misconceived and is based upon a wrong notion of the correct legal position. There is absolutely no contradiction in the statement of the petitioner and the statement of the respondent as R.W.1 does not disprove the contention raised by the petitioner that he was not served and that on coming to know of passing of the decree on 29- 5-1988, he filed application for setting aside of the same on 12-6-1988.
' Even otherwise it was a title suit seeking a declaration to the effect that a registered sale-deed in favour of the petitioner should be declared to be illegal and based upon fraud. No evidence worth consideration was recorded by 'the learned Trial Court while passing an ex parte decree against the petitioner. In fact it is a case where fraud has been committed and a decree has been obtained against the petitioner by mentioning of an incomplete address of the petitioner on which address, the initial and subsequent processes were issued. For the sake of convenience, the address as given in the plaint is as follows:- {{URDU TEXT}} ' It is clear from the address given in the plaint that the ex parte decree has been obtained in a fraudulent manner and therefore is not sustainable under the law. In this behalf reference can be made to a case titled Muhammad Aslam v. Additional District Judge, Rawalpindi etc. (1979 SCM R 85). Even otherwise law favours adjudication on merits and revisional Court could not have interfered with discretionary order passed by the learned trial Court. Reference can be made to cases of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 Supreme Court 139) and Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCM R 1744).
' In view of the above, I accept this writ petition and declare the order passed by the learned Additional District Judge dated 30-7-1990 as illegal and without lawful authority and set it aside.
The parties are left to bear their own costs.
' As it is an old dispute, the main suit shall be decided within six months from the date of receipt of this order by the trial Court. A copy of the order shall be sent to the learned Senior Civil Judge, Lahore who shall get the file of the learned Trial Court requisitioned and either shall hear the suit himself or may entrust the same to any other Court of competent jurisdiction including the successor Court of the learned trial Judge who had tried the suit..