1. ' By the instant revision petition preferred under section 115, C.P.C., orders, dated 17-12-1995 and 29- 8-1996 passed by the Court of Qazi Kharan and order, dated 30-11-1996 passed by the Majlis-e- Shoora, Kalat at Mastung, have been assailed by the petitioners with the prayer that the impugned orders be set aside and the case be remanded to the trial Court to be disposed of on merits in accordance with law.
2. ' Briefly, the stated facts of the case are that on 27-1-1994 the respondent filed civil suit for declaration, injunction and correction of the entries of Revenue record in respect of Khatooni numbers 1 to 6, 8 to 11, 14, 15 and 18 to 20 situate to Ziarat, Sub-Tehsil Besima Sub-Division Rakhshan, District Kharan, in the Court of Qazi Kharan against the petitioners. The petitioners filed their written statement before the trial Court and contested the suit of the plaintiff on certain factual and legal grounds. On 25-6-1995 the learned Qazi Court dismissed the suit of the respondent/plaintiff on the ground that the respondent was under obligation to produce his own witnesses, which he failed to produce and the witnesses already produced by the respondent, have stated that they have no knowledge nor they have given evidence for the respondent. It was specifically observed in the order/decision that the suit is dismissed for want of evidence/proof.
3. ' On 15-8-1995 the respondent filed application for review of order/decision, dated 25-6-1995 whereby the suit of respondent was dismissed. On 31-8-1995 the petitioners filed their rejoinder to the review application contesting the said application on factual and legal grounds, on which date the parties were heard and the learned trial Court recalled its order, dated 25-6-1995 and accordingly permitted the respondent to prosecute the suit and this order was announced in the presence of the parties without fixing any date in the suit and observing that after completion of necessary formalities the same may be placed alongwith the original file. On the same date on 31- 8-1995 the suit was ordered to be registered and case was fixed for 12-9-1995. On such date the case was taken up. The respondent was marked as present with the directions that the petitioners defendants to be summoned as they were not inadvertently summoned for 8-10-1995. In the order-sheet, dated 8-10-1995 it has been noted that the attorney for the respondent was present in Court and the petitioner's were noted to be not present with the specific observations that no reply of the summons/Murasla has been received {{URDU TEXT}} 6s4rjethwitilJov) and accordingly next date was fixed for 9-11-1995 for summons to tne petitioners/defendants. The diary sheet, dated 9- 11-1995 indicates that on such date it was noted as public holiday and the case was taken on 12-11- 1995 on which date the attorney for plaintiff was present while the petitioners/defendants were marked as absent, accordingly the case was next fixed for 26-11-1995 for summoning the petitioners and in the order-sheet, dated 26-11-1995 the presence of the attorney for the respondent has been noted whereas; the petitioners have been shown as absent with the observation that reply of the Murasla/summon has not been received, accordingly directions were issued for service of summon on the petitioners to be affixed on the main door and the case accordingly fixed for 17-12-1995. On the fixed date i,e,, 17-12-1995 the order-sheet maintained by the trial Court shows that attorney for the respondent was present and the defendants were marked absent with the observation that the notices issued for the respondents have been duly affixed on the main door but despite such substituted service the defendants were noted to be not present and the case was kept pending till the Court hours and as per order-sheet of even date, the defendants remained absent accordingly they were proceeded ex parte under Order 9, Rule 6, C.P.C., and the suit was decreed ex parte in favour of the respondent/plaintiff. On 14-5-1996 the petitioners filed application under Order 9, Rule 13 for setting aside for ex parte decree, dated 17-12- 1995 which was registered as per order-sheet of even date and notices were ordered to be issued to the respondent for 5-6-1996 on which date the notice was not served on the respondent/plaintiff and ultimately the application was taken up on 27-8-1996 on which date rejoinder to the application for setting aside ex parte decree was filed by the respondent and the hearing was adjourned to 29-8-1996. On 29-8-1996 as per order sheet annexed with the petition, the application was taken up for hearing and the parties were heard, the learned trial Court observed that the applicant/petitioners did not produce any solid proof in support of the application and the application for setting aside the ex parte decree was treated to be hopelessly barred by time with the further observation that the petitioners were well-aware about the decree having been passed by the Court but they were not vigilant and as such the application for setting aside of ex parte decree was dismissed for having not been filed within the prescribed period of thirty days as provided under section 6 of Dastoorul Amal Dewan-i-Kalat thereupon, the petitioners being aggrieved and dissatisfied with the order of the Qazi Kharan, dated 29-8-1996 preferred Civil Appeal No,71 of 1996 before Majlis-e-Shoora Kalat Division at Mastung wherein orders, dated 17-12- 1995 and 29-8-1996 respectively passed by the Qazi Kharan were assailed. The learned Majlis- eShoora after hearing the parties vide its judgment and decree, dated 30-11-1996 dismissed the appeal filed by the petitioners on the ground that the counsel for the petitioners was present before Qazi Kharan on 31-8-1995 i,e,, the date on which the review application filed by the respondent/plaintiff was allowed and the suit was accordingly registered and the counsel for the petitioner was bound down and in any case if the counsel for the appellant did not intend to represent the petitioners he should have informed the petitioners or submitted application in Court and moreover; on 14-5-1996 the learned counsel for the petitioners Mr. Ghulam Farooq, Advocate submitted application under Order 9, Rule 13, C.P.C., before the Qazi Court alongwith his Vakalatnama which facts indicate that the petitioners and their counsel remained aware and had all the knowledge of the proceedings being drawn before trial Court. On such conclusions drawn by the learned Majlis-e-Shoora the appeal was dismissed vide impugned judgment, dated 30-11-1996.
4. The petitioners, thus, have preferred the instant revision petition against the orders passed by the learned Qazi Kharan and the Majlis-e-Shoora as abovementioned.
5. ' I have heard the learned counsel for the petitioner and the respondent in support of their respective contentions at length. The learned counsel for the petitioner contended that no date was fixed by the learned Qazi on 31-8-1995 in the case when the dismissal order of the suit was recalled and thereafter, no notice in respect of hearing/proceedings of the suit was served upon the petitioner. The learned counsel vehemently contended that substituted service by affixation of notice was not a due service nor there was any valid basis available with the trial Court to have ordered to effect substituted service by affixation to be made, is as much as; the same was not in fact so effected. According to the learned counsel in such view of the facts; the application for setting aside of ex parte decree was not hit by limitation for which the prescribed period of limitation is not governed under Article 164 of the Limitation Act, rather the period of limitation would be three years under Article 181 of the Limitation Act. The learned counsel vehemently contended that the abovementioned legal points involved in the case were not attended to by the Majlis-e-Shoora even, which dismissed the appeal on extraneous grounds, the impugned orders as such deserve to be set aside.
6. ' Controverting the contentions put-forth on behalf of the petitioners, the learned counsel for the respondent contended that the petitioners had the knowledge as in the presence of their counsel Mr. Farooq, Advocate order, dated 25-6-1996 dismissing the suit of the respondent was set aside/recalled by learned Qazi vide order, dated 31-8-1995 but despite such knowledge about the suit having been revived for proceedings on merits, the petitioners deliberately avoided to appear in Court. Further, the learned counsel contended that for hearing of the suit substituted service was effected by affixation of the notices yet they not either of them (petitioners) attended the Court to defend the proceedings and accordingly suit was decreed ex parte and application for setting aside of ex parte was moved beyond the prescribed period of limitation as provided under Article 164 of the Limitation Act, and for such delay no application for condonation of delay was submitted and accordingly the application filed under Order IX, Rule 13, C.P.C., has been appropriately dismissed by the trial Court. The learned counsel submitted that the impugned orders passed by the Courts below are not open to any exception, which have been passed in accordance with law in view of the given facts and circumstances of the case. The learned counsel submitted that copy of the application for setting aside of ex parte decree has not been annexed with the petition and only the copy of the affidavit filed alongwith such application has been filed on record which is not sufficient for the effective disposal of the instant petition.
7. ' I have considered the contentions advanced on behalf of the parties in the light of the record of the case annexed with the petition and the relevant provisions of the law applicable in the case in hand.
8. ' It is an admitted fact on record that the suit of the respondent was dismissed by the Court of Qazi Kharan on 26-6-1995 on the ground that the evidence of the witnesses produced by the plaintiff was not sufficient to decree the suit in his favour and the plaintiff being under legal obligation to produce the other cited witnesses which he failed to produce. Such order of dismissal of suit was recalled on 31-6-1995 by allowing the review application in presence of the petitioners' counsel but no date was fixed in the case. The order-sheet, dated 12-8-1995 indicates that the petitioners were not inadvertently summoned for the proceedings and accordingly notices were ordered to be issued. The subsequent order-sheets, dated 8-10-1995, 9-11-1995 would reveal that the notices sent for service on the petitioners were not returned to the Court and on 2641-1995 the learned trial Court in its order-sheet of even date observed that notice/Murasila not returned {{URDU TEXT}} and accordingly directed that notice be affixed, on the main door and adjourned the case for 17-12- 1995. On the fixed date i,e,, 17-12-1995 the learned Qazi noted in the order sheet that despite affixation of the notice on the main door, the petitioners were absent till working hours of the Court and accordingly they were proceeded ex parte and simultaneously the suit was decreed in favour of the respondent as prayed for. The application for setting aside of ex parte decree was presented on 14-5-1996, was dismissed on 29-8-1996 by the Qazi Court on the ground that it was filed beyond the prescribed period of 30 days and no solid proof in support of application was furnished.
9. It may be noted that substituted service by affixation of notice under Order V, Rule 20, C.P.C., can only be directed when in the ordinary course such notice/summons cannot be served or that the defendant is deliberately avoiding to receive the summons of the Court and the Court, as such, becomes satisfied that service in the ordinary mode cannot be made, can legitimately order for service through affixation. As abovementioned the relevant order-sheets indicate that the Murasila sent to the petitioner for the dates fixed in the matter was/were not returned to the Court and, thus, there was no material or report available with the Trial Court to conclude that the petitioner or any one of them were avoiding to receive the notice of the Court or that they could not be served in the ordinary mode, which could have justified for the Trial Court to have ordered for service of notice through affixation.
10. The prerequisites provided in Rule 20 of Order V, C.P.C., directing for effecting substituted service on the defendants/petitioners were completely wanting in the case, therefore, such service cannot be legally termed to be valid and legal service of notice on the defendants. Moreover, ex parte decree can be passed only on 1st date of hearing fixed by the Court after institution of the suit without recording evidence if the defendants despite service of summons failed to appear, under Order 9, Rule 6, C.P.C., and not on any subsequent date. The impugned order shows that ex parte decree was passed under Order 9, Rule 6, C.P.C., without recording any evidence. As above discussed consequent upon recalling the order of dismissal of suit on the review application, the previous proceedings in the suit stood revived from the stage where it was left when the suit was dismissed and, thus, was not the first date of hearing after institution of the suit for which the summons were served on the defendants in terms of Order 9, Rule 6, C.P.C., and therefore, ex parte decree without recording evidence could not have been passed. The ex parte decree as such is a nullity in the eye of law.
11. In such view of the matter as abovementioned, the date i,e,, 31-8-1995 fixed by the Court being not the date initially fixed upon institution of suit for service of summons on the petitioners, who failed to appeal and consequently ex parte decree was passed. To set aside such ex parte decree, the limitation period of 30 days provided in Article 164 of the Limitation Act, would not be applicable; rather the period of limitation prescribed in Article 181 of the Limitation Act, 1908 would apply which provides three years' period for an application under Order 9, Rule 13, C.P.C., seeking for setting aside of ex parte decree, to be reckoned from the date when the right to apply accrues PLD 1981 SC 21 referred. The learned Appellate Court has dismissed the appeal preferred against the impugned order of trial Court dismissing the application for setting aside of ex parte order; on the ground that the petitioners who were represented by their counsel had the knowledge of the suit consequent upon the setting aside of the dismissal order of the suit, in my opinion cannot be termed or treated to be a substitute of valid service of notice. The learned Majlis-e-Shoora did not attend to the legal aspects of the case as abovenoted and erred in law in the exercise of jurisdiction vesting in it while passing the judgment in the light of the record of the case. The contentions raised by the learned counsel or the respondent are devoid of any legal force and in view of the above discussion I am of the considered view that the suit needs to be adjudicated on merits, as the impugned orders are not sustainable. For the reasons abovementioned, the impugned order, dated 17-12-1995 and 29- 8-1996 passed by the learned Qazi Kharan and order, dated 30-11-1996 passed by the Majlis-e- Shoora, Kalat at Mastung in Civil Appeal No,71 of 1996 are set aside and the case is remanded to the learned Qazi Court, Kharan with the direction to proceed and decide the case in accordance with law; consequently, the petition is allowed with no order as to costs.