1. This is an appeal under Order XLIII, rule 1, clause (t) of Civil P.C. from the order of learned Additional District Judge, Faisalabad passed on 16-5-1985 by which an application for rehearing of an appeal decreed ex parte was dismissed.
2. Broad outlines of the case in brief are:-- Manzoor Ahmad owned 8 Kanals of agricultural land, in square No.15 of Chak No.28/G.B., Tehsil Jaranwala of District Lyallpur. He gave it for cultivation to Muhammad Hussain and received a sum of Rs.1,100 from him. Later, he agreed for its sale to him for a sum of Rs.5,000 on 17-5-1974, and, received portions of the sale-- price in instalments. As the sale of the land did not take place, Muhammad Husain brought a suit for specific performance of agreement to sell in his favour. Suit was instituted, on 18-12-1974, in the Court of Civil Judge at Jaranwala. Initially, suit was brought against Manzoor Ahmad only. Upon disclosure that the land, subject-matter of the suit for specific performance, was further sold by Manzoor Ahmad, Jamal Din and five others including Shamman were impleaded as defendants in the suit. On trial, the suit was dismissed on 20-5-1978. It was held that agreement to sell was not proved. '
3. Muhammad Hussain preferred an appeal. It was heard by a learned Additional District Judge at Faisalabad. It was allowed ex parte by him on 29-11-1981. Respondents to the appeal had failed to appear and were consequently proceeded against ex parte. On 12-6-1983, Shamman presented a petition under Order XLI; rule 21, Civil P.C. for setting aside of the ex parte decree against him and for rehearing of the appeal on merits. Petition was resisted by the other side. On 16-5-1985; the petition for rehearing of the appeal was dismissed. Against this order, an appeal was filed in this Court. It was admitted to hearing on 10-12-1985.
4. On view of the record I 'take, this appeal deserves to be allowed, Shamman was respondent No.6 in the appeal. Upon substitution of legal representatives of respondent No.5, he was respondent No.10 in the appeal. He was initially served in the appeal and had attended its hearing on different dates.
5. However, in course of time, the hearing of the appeal was transferred to another learned Additional District Judge. The appeal was received in the transferee Court on 12-1-1981. On this date, notice Pairvi to the respondent and the counsel were issued for 7-2-1981. Leaving aside the case of other respondents, notice Pairvi could not be served on respondent No.10. No notice was ever issued to his counsel. Presumably, he had not appointed any. Eventually, on 25-5-1981, the lower appellate Court ordered that if personal service could not be effected on respondent No.10, service by affixation may be resorted to and adjourned hearing of the appeal to 19-7-1981. Since respondent No.10 was not available at his residence, the notice was pasted on the outer --door of his residence on 9-7-1981. Lower appellate Court took it to be a sufficient service upon him and proceeded ex pane against him and upon hearing arguments, accepted the appeal and decreed the suit for specific performance in favour of Muhammad Hussain plaintiff/appellant.
6. On 12-6-1983, Shamman filed a petition for setting aside of the ex parte decree passed in appeal against him and for rehearing of the appeal on merits in his presence. It was averred that he was neither served in person nor by substituted service and the report of the process-server was fake and collusive. The other side contested the averments in the restoration petition. without holding of an inquiry into the question of due service of notice Pairvi upon the applicant/appellant and consequent sufficiency of cause given to explain the default in appearance, learned lower appellate Court by reference to record only, dismissed the petition and upheld its earlier order decreeing the suit ex parte in appeal.
7. Two material points were required to be examined in the appeal. Firstly, whether the applicant/appellant was duly served and secondly, whether the petition for rehearing of the appeal was in time prescribed by Article 169 of the First Schedule of Limitation Act, 1908. There was not much dispute that on .transfer of the appeal without notice, applicant was entitled to a fresh intimation of the date of hearing in the transferee Court. Case of Ram Sukul Pathak and others v.
8. Kesho Prasad Singh and others AIR 1918 Patna 341 was in point. In compliance with this requirement of law, the transferee Court issued notice Pairvi to respondent No.10. He could not be served in person. Therefore, alternative mode for service suggested in the order of Court was adopted by the process-server. Whether he did comply with the essential requirements of law for affixing of the notice on the outer-door of the residence of respondent No.10 was seriously a disputed question and the appellant joined issues on it. When the correctness of the report of the process--server was questioned by the appellant and a prayer for his personal examination as witness was also made for testing its correctness as well as soundness, the learned appellate Judge could not have relied upon it for holding against the appellant that he was duly served. An application for rehearing of an appeal decreed ex parte could not be summarily rejected without holding of an inquiry into the question of due service of notice and also sufficiency of cause given for condoning the default in appearance. An opportunity to substantiate by evidence, the averments in the restoration application was legally necessary. Unfortunately, learned appellate Judge did not adopt the correct course. The result was clearly an erroneous decision. As far period of limitation, Article 169 of First Schedule of Limitation Act applied. it prescribed a period of 30 days. Terminus a quo was the date of the decree in appeal or when notice of the appeal was not duly served, when the applicant had gained knowledge of the decree. Therefore, the question of limitation was closely linked with and dependent upon the related important question of due service of notice in the appeal. Since the impugned decision was arrived at without investigation of the disputed issues, it could not be upheld and allowed to be maintained.
9. Upon the above view of the matter, appeal is allowed, impugned order of learned Additional District Judge dated 16-5-1985 is set aside and the matter is remitted for its reconsideration and decision afresh after allowing a reasonable opportunity to the parties for substantiating their variant versions. Needless to observe, it shall be open to the learned Additional district Judge to settle necessary issues on the disputed points to enable the parties to lead their evidence on them. In the circumstances, there shall be no order for the costs in this Court.
10. Records be returned to the Court below.