The prayer of the defendant is that this Court may be pleased to set aside judgment and decree passed ex parte in the above matter on 12-10-1992 and further the suit may be decided on merits.
In support of this application Hashim son of Haji Suleman Patel, the defendant has sworn an affidavit stating therein that "on 10-11-1993 he received a notice dated 7-11-1993, issued by the learned Official Assignee/Commissioner, for taking accounts. That upon receipt of notice he through his advocate made inquiries and came to know about the institution of the above suit and its ex parte disposal on 12-10-1992. That he was not served and prior to 10-11-1993, he had no knowledge of the institution of the above suit and as such he could not appear before the Court and contest the suit. That the plaintiff is his real younger brother and had always known his whereabout and that the plaintiff has been intentionally avoiding to have the service of the process effected on him in order to obtain ex parte judgment and decree against him. That he has a very strong defence and that has been served, he would have contested the same and that setting aside of the ex parte order and the decision of the suit purely on merits will be in the interest of justice".
2. Mr. Aziz Malik, learned counsel for the defendant has contended (i) that the report of the bailiff was that the defendant was not residing there. Fresh address of the defendant was given as 26/1 Town Houses, Block-IV, Kehkashan Clifton, Karachi; (ii) that according to 3rd report dated 2-2-1992 a notice was affixed on the Court Notice Board. He has contended that no evidence was led as required under section 143 of the Sindh Chief Court Rules (O.S). For the sake of convenience section 143 is reproduced as under: "S.143: If a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:---
(1) the number of times and the dates and hours at which he went to the house;
(2) the attempts made by him to find the person to be served;
(3) whether he had any, and what, reason to suppose that such person was within the house or in its neighborhood, or endeavouring to evade service?
(4) whether any adult male member of the family of the person to be served was residing with him?"
3. Mr. Muhammad Younus, learned counsel for the plaintiff has contended (i) that the defendant was served through publication in daily Mashriq dated 1-2-1992; (ii) that no any private person had accompanied the bailiff at the time of service; (iii) that the application is time-barred because the defendant has not filed the application for condonation of delay.
4. Mr. Aziz Malik, learned counsel for the defendant has referred the following case-law:---
(1) PLD 1981 SC 21 relevant page 39---Case Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan:--- The Hon'ble Supreme Court has held as under:--- "In this case, as both the applications were made within three years of the ex parte decree as also from the date of the knowledge of the decree, therefore, they were within limitation on the assumption that the defendant had no "notice" of the date of hearing when the decree was passed---the decree having been passed on a dale after the initial service of "summon" and on fresh hearing, after the return of the records from the High Court. In this view of the matter, the impugned judgment does not suffer from any defect regarding question of limitation. Although the course suggested and followed in Muhammad Sweleh's case could also be adopted in this case, in view of the legal position clarified earlier, it is not necessary to do so."
2. PLD 1979 SC 18---Case of Mst. Afzal Begum v. Y.M.C.A.; 'The Hon'ble Supreme Court has held as under, "However, the necessary application in this behalf has to be made within the period of limitation prescribed under Article 164 of the Limitation Act to set aside a decree passed ex parse on the original aside and under Article 169 thereof for re-hearing of an appeal heard ex parte. According to both these Articles the period of limitation prescribed is thirty days only from the date of the original or appellate decree or where the summons or the notice of the appeal, according as the case may be, was not "duly served", when the applicant had knowledge of the decree. In other words under these provisions when there is due service of the summons in the suit or notice of the appeal the period of limitation prescribed for the application to set aside the ex parte decree or for rehearing of the appeal heard ex parte, shall be computed from the date of the decree in question.
In case however, the summons or notice of the appeal was not "duly served" then the limitation commences only when the applicant has knowledge of the decree. It may be seen that under these provisions the time will run from the date of knowledge of the decree only where the summons or the notice of the appeal, according as the case may be, is not duly served. In case however, summons or notice has been duly served then the date of knowledge of the decree by the applicant is immaterial and period of limitation starts running from the date of the decree itself."
3. 1973 SCM R 589---Case of Ibrahim v. Mst. Kulsoom Begun: The Hon'ble Supreme Court has held as under:---
4. 1984 CLC 668---Case of Major (Retd.) Muhammad Yousuf v. Mst. Saeeda Parveen: The Hon'ble Judge has held as under; "Petition making no attempt to avoid acceptance of service in ordinary way--- Trial Court by ordering substituted service without justifiable legal bases and proceedings ex pane against him, held, committed material irregularity. "'
5. I have gone through the material placed on record and the case-law, cited above by Mr. Aziz Malik. It is an admitted position that neither proper service was effected on the defendant, nor necessary legal evidence has been furnished as required under section 143 of the Sindh Chief Court Rules (O.S). I would like to refer the actual endorsement of the bailiff dated 1-12-1991 which is as under:
6. Admittedly no any respectable person had accompanied the bailiff at the time of service, which is admitted by the learned counsel for the plaintiff at Bar. According to section 140 of the Sindh Chief Court Rules (O.S) if the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served.
7. In view of the non-compliance of sections 140 and 143 of the Sindh Chief Court Rules (O.S.) the substituted service, by publication and notice in daily Mashriq, in any case, is not to be held a good and proper service. Moreover the case-law cited and discussed above, is also favourable to the case of the defendant. The conclusion of the above discussion is that this CMA is allowed. Orders accordingly.