TALAT QAYUM QURESHI, J.---Hussan Din respondent No,1 was owner of house alongwith land underneath measuring 1 Kanal 9 Marlas comprising Khasra No,426 situated at Sikandarpur, Haripur.
He mortgaged the said house in favour of respondent No,2 for a sum of Rs,5,000 and handed over the possession of the house to him and Haji Ghulam Sarwar predecessor-in-interest of respondents Nos.4 to 12 vide mortgage deed No,7, book No,1 dated 7-1-1996 registered in the Office of Sub-Registrar, Haripur. The period of mortgage was fixed one year and one of the conditions of mortgage was that if the mortgagor failed to redeem the mortgaged property on expiry of one year, the period of mortgage, the mortgagee would be entitled to recover the amount from the sale of mortgaged property.
2. After mortgaging the said house respondent No,1 took the said house on monthly rent of Rs,40 from the mortgagee and took over the possession of the house on 17-1-1961, in this regard, agreement was also executed between the parties on 17-1-1961.
3. Subsequently, Hafiz Ghulam Kibria respondent No,4, and his father Haji Ghulam Sarwar instituted an application for ejectment and recovery of arrears of rent against respondent No,1 (Hussan Khan and his wife Mst. Chandarmi Khanurn). The said application was decided in their favour (Ghulam Kibria and Haji Ghulam Sarwar) and consequently respondent No,1 and his wife (Hussan Din and Mst. Channani Khanum) were ejected from the property in question. It is worth mentioning that Mst.
Chandanni Khanum wife of respondent No,1 also instituted Civil Suit No,97/1 (Mst. Chandanni Khanum v. Haji Ghulam Sarwar and others) on 5-3-1968 claiming the ownership of the aforesaid property alleging that the same had been transferred in her favour in lieu of her dower by respondent No,1 and that the mortgage by respondent No,1 in respect of respondent Vo.2 and, his father Haji Ghulam Sarwar and the ejectment proceedings were illegal. The said suit of Mst.
Chandanni Khanum was, however, dismissed on 4-9-1968 under Order 9, Rule 8, C.P.C.
4. Since respondent No,1 had failed to redeem the mortgaged property after the expiry of one year and a sum of Rs,2,280 was also due from him, on account of rent, the respondent No,4 Hafiz Ghulam Kibria and his father Haji Ghulam Sarwar instituted a Civil Suit No,14/1 on 971-1969 in'the Court of Civil Judge, Haripur against respondent No,1 (Hussan Din) for declaration to the effect that abovementioned property was mortgaged in their favour for Rs,5,000 and then amount of Rs,2,280 was also due to them from respondent No,1 on account of rent and were, therefore, entitled to the recovery of Rs,7,280 through sale and auction of mortgaged property. Since the service of respondent No,1 could not be effected in ordinary manner, notice against him was published in newspaper "Hamdam" for 19-3-1969. In spite of substituted service the respondent No, I did not appear and the Court proceeded ex parte and passed ex parte preliminary dedree in favour of respondent No,4 and his father on 28-3-1969. Thereafter respondent No,4 and his father submitted an application for final decree on 12-5-1970. During the proceedings for final decree the respondent No,1 again could not be served through ordinary means and the trial Court on 29-7-1970 directed the service of the respondent No,1 by publication in the newspapers known as "Hurriat Karachi" as he was reported to be in Karachi in those days. Respondent No,1 instead of appearing in the Court sent an application dated 21-9-1970 to the Court from Karachi praying therein that if there was any case against him he may be intimated at his address given in the said application. On 19-11-1970, the trial Court ordered ex parte proceedings against respondent No,1 and passed an ex parte final decree in favour of Haji Ghulam Sarwar and respondent No,4 Hafiz Ghulam Kibria.
5. Haji Ghulam Sarwar and respondent No,4 Hafiz Ghulam Kibria instituted execution proceedings and the abovementioned house and vacant site were put to auction by the Executing Court. On 25-6-1971 the decree-holders, namely, Hafiz Ghulam Kibria and Haji Ghulam Sarwar purchased the said house alongwith vacant site for Rs,7,320. Auction certificate was issued in their favol!r on 31-7- 1971 by the Executing Court.
6. The petitioners purchased the abovementioned house alongwith vacant site for a sale consideration of Rs,30,000 from Haji Ghulam Sarwar and Haji Ghulam Kibria vide Mutation No,3914 attested on 28-9-1973. After purchase of the said property, the petitioners carried out extensive repairs and renovation of the existing constructions as the structure was very old and decaying.
Additional constructions were also made on the vacant site by the petitioners by spending huge amount.
7. It was on 23-11-1978 that respondent No,1 moved an application No,55/6 of 1978 for setting aside ex parte decrees dated 28-3-1969 and 17-11-1970 passed in Civil Suit No,14/1 alleging that he was neither served in the suit nor he had any knowledge of the same. Haji Ghulam Sarwar had died before filing of the said application. One of his legal representative Mst. Sahira Khatoon, his daughter (respondent No,12) was omitted from the list of legal representatives of Haji Ghulam Sarwar in the application for setting aside ex parte decree. The petitioners, who had purchased the suit property were not impleaded in the said application though the applicant/respondent No,1 had the knowledge of the sale of the said property in favour of petitioners. The said application was contested by the L.Rs, of Haji Ghulam Sarwar.
8. The respondent No,1 on 26-11-1978 also instituted a Civil Suit No,277/1 for redemption of the abovementioned property alleging that the property still continued to be mortgage and in the said suit also challenged decrees dated 28-3-1969 and 17-11-1970 passed in Civil Suit No,14/1. In the said suit the respondent No,1 alio impleaded the petitioners as defendants.
9. The learned trial Court after recording the evidence of the parties vide order dated 25-10-1980 set aside the ex parte decrees dated 28-3-1969 and 17-11-1970. Respondents Nos.4 to 11 and widow of Haji Ghulam Sarwar filed Revision Petition No,25/C.R. Of 1980 against order dated 25-10-1980 in the Court of District Judge, Abbottabad. The petitioners (Hafiz Abdul Salam and others) also filed Revision Petition (24/C.R.). Mst. Sahira Khatoon daughter of Haji Ghulam Sarwar who was not impleaded as party in the application for setting aside ex parte decree also filed Revision Petition (C.R. No,27 of 1980) in the Court of learned District Judge, Abbottabad. The aforesaid revision petitions were dismissed by the learned District Judge, Abbottabad vide order dated 25-1-1982 and the order of the lower Court was maintained. The petitioners (Hafiz Abdul Salam and others) filed Writ Petition No,12/82 in this Court which was accepted on 11-12-1984. The impugned orders were set aside and direction was issued that petitioners (Hajiz Abdul Salam and others) be impleaded as party to the original application for setting aside ex parte decree and be afforded with opportunity to plead their case and produce evidence in support of their case. The respondent No,1 filed Petition for Leave to Appeal No,100 of 1985 before Hon'ble Supreme Court of Pakistan but his petition was dismissed by the august Supreme Court of Pakistan on 20-94990. After dismissal of petition by the august Supreme Court of Pakistan, respondent No,1 presented amended application for setting aside ex parte decree wherein the petitioners had also been impleaded as respondents. The said application was contested by petitioners and after recording evidence the learned Civil Judge, Haripur vide order dated 8-9-1992 again set aside the ex parte decrees dated 28-3-1969 and 17-11- 1970 passed in Civil Suit No,14/1. Against the order dated 8-9-1992; the petitioner (Hafiz Abdul Salam and others) and widow of Haji Ghulam Sarwar filed Revision Petition (No,25/CR of 1992) in the Court of learned District Judge, Haripur on 24-9-1992. The learned Additional District Judge, Haripur vide order dated 26-6-1996 dismissed the revision petition. The petitioners have now challenged the order dated 8-9-1992 and 26-6-1996 passed by the learned Civil Judge and Additional District Judge, Haripur respectively through writ petition in hand.
10. Mr. Muhammad Younas Khan Tanoli, Advocate, the learned counsel representing the petitioners argued that respondent No,1 Hussan Din had been properly and duly served through publication in newspaper before the passing of the preliminary decree. He was also served through publication in daily "Hurriat Karachi" and had the knowledge of the pendency of proceedings of Civil Suit No,14 of 1969 as was clearly evident and established from his own application dated 21-9-1970 which was sent by him to the trial Court from Karachi. The substituted service was as effective as personal service under the law. The conclusions drawn by the learned Civil Judge, Haripur on the question of service of respondent No,.1. Are against the facts on record and law.
11. The respondent No,1 moved an application for setting aside ex parte decree on 23-11-1978 which was hopelessly barred by time. The Courts below have not correctly appreciated the facts and law involved in the case on the point of limitation. The learned District Judge though held that respondent No,1 was fully aware of the suit and that he had deliberately avoided to appear in the Court and had intentionally kept quiet for long time but the learned Court acted illegally in not accepting the revision petition filed by the petitioners.
12. It was further argued that both the Courts below have completely ignored that decree in Suit No,14/1 had already been satisfied and the exectution proceedings had been finalized and consigned to record long ago. The suit property was sold in execution of decree on 25-6-1971 and the sale was duly confirmed and sale certificate was also issued by the learned Executing Court on 31-7-1971, therefore, under Article 166 of the Limitation Act the judgment-debtor/respondent No,1 could move an application for setting aside the sale within 30 days from the date of sale/auction of the suit property. The respondent No,1 had not filed any application for setting aside the sale/auction of the suit property within the time fixed under the law but still the learned Additional District Judge had made certain unwarranted observations in respect of the sale of the property which belonged to the petitioners.
13. On the other hand, Mr. Al-haj Sardar Bahadur Khan, Advocate, while repelling the arguments of the learned counsel for the petitioners argued that the petitioners have no locus standi to file the writ petition in hand. The decree obtained by respondent No,4 and his father against respondent No,1 was set aside and the petitioners in no case can be termed as aggrieved person. The petitioners have purchased property from respondent No,4 and his father and if any of their rights have been affected they can sue them for redressal of their grievance. The decree-holders, respondent No,4 and L.Rs, of Haji Ghulam Sarwar have not come forward to challenge the orders passed by the learned Civil Judge as well as learned District Judge, Haripur,
14. He further argued that there was no mala fide and jurisdictional defect in the orders of the Courts below and that concurrent findings of fact cannot be interfered with while exercising writ jurisdiction by this Court and prayed that the writ petition be dismissed.
15. We have heard the learned counsel for the .Parties at length and perused the record of the case carefully.
16. The argument of the learned counsel for the petitioners that respondent No,1 Hussan Din had been duly served through publication in newspaper before passing of decrees against him and that he had the knowledge of pendency of suit against him as is clearly evident from his own application dated 21-9-1970 sent by him to trial Court from Karachi, has a force in it.
17. Hafiz Ghulam Kibria respondent No,4 and his father Ilaji Ghulam Sarwar who is predecessor of respondents Nos. 5 to 12, instituted Civil Suit No,14/1' on 9-1-1969 in the Court of Civil Judge, Haripur against respondent No,1 for declaration to the effect that the property in dispute (mentioned in the heading of- the plaint) was mortgaged in their favour for a sum of Rs,5,000 and an amount of Rs,2,280 was also due to them from respondent No,1 on account of arrears of rent and were entitled to the recovery of Rs,7,280 through the sale and auction of the mortgaged property. The service on respondent No,1 could not be effected in ordinary manner, hence the Civil Judge ordered the service of respondent No,1 by publication of notice in the newspapers known as "Hamdam Kohat" for 19-3-1969. Despite substituted service respondent No,1 did not appear, hence ex parte preliminary decree was passed in favour of respondent No,4 and his father, against respondent No,1 Hussan Din on 23-8-1969. The decree-holders submitted application for final decree on 12-5- 1970. During the proceedings for final decree, in order to serve the respondent No,1 the learned trial Court on 29-8-1980 directed the service of respondent No,1 by publication in the newspapers known as "Hurriat Karachi" as the respondent No,1 was stated to be residing at Karachi in those days. Having come to know about the pendency of suit/proceedings against, him the respondent No,1 instead of appearing in the Court, sent an application dated 21-9-1970 to the Court from Karachi asking the Court to intimate at his address given in .The said application as to whether there was any case against him. The learned trial Court, however, on 17-11-1970 passed ex parte final decree in favour of Haji Ghulam Sarwar and Hafiz Ghulam Kibria (respondent No,4). The decree-holders instituted execution proceedings and the property in dispute (mortgaged property) was auctioned on 25-6-1971 which the decree-holders purchased for Rs,7,320 and consequently, auction certificate was also issued in favour of respondent No,4 on 31-7-1971.
Thereafter they sold the property in dispute against a sum of Rs,30,000 in favour of petitioners vide Mutation No,3914 attested on 28-9-1973. The petitioners after purchasing the property, renovated and repaired the same and made additional construction by spending huge amount thereon. The respondent No,1 kept mum and did not bother to attend the Court after sending application deed 21-9-1970 from Karachi. It was on 23-11-1978 that respondent No,1 moved an application (55/6) for setting aside the ex parte decree dated 28-3-1969 and 17-11-1970 passed in Civil Suit No,14/1 on the ground that he was neither served nor had the knowledge of the suit. In the meantime Haji Ghulam Sarwar one of the decree-holders had expired. His L.Rs, except Mst. Sahira Khatoon respondent No,12 were impleaded as respondents in the said application but the petitioners (Hafiz Abdul Salam and others) were not impleaded in the said application, They were, however, impleaded as per directions of this Court dated 11-12-1984 in Writ Petition No,12/82 through which the case was remanded back to the learned Civil Judge for decision afresh after giving the petitioners proper opportunity to defend their case.
18. The application dated 21-9-1970 clearly shows that the respondent No,1 had knowledge of pendency of suit/proceedings against him. Instead of coming to the Court, he preferred to submit application. The fact of receipt of application was mentioned by trial Court in its order dated 7-10- 1970. In his subsequent application for setting aside ex parte decree filed on 23-11-1978 he admitted that he had sent an application from Karachi. He appeared as P.W.1 in support of his application for setting aside ex parte decree in which he also admitted that he had come to Haripur about 5 years ago at the death of his brother and that he had told Maulvi Khalilur Rehman that Haji. Ghuiam Sarwar had obtained decree fraudulently against him. The said statement was recorded on 15-4- 1980. This also shows that respondent No,1 had in the year 1975 knowledge that the ex parte decree had been passed against him. He also admitted in his statement which was recorded after the case was remanded by this Court that his wife and children were evicted from the suit house.
Moreover, in 1975, when he came to attend the funeral of his brother the property had already been sold to petitioners and they had brought material changes by raising new constructions and the said property was in their own possession. This fact was sufficient to put him on guard that how the strangers were occupying property and why the material changes had been brought in it.
19. We are clear in our minds that the respondent No,1 had been properly served in accordance with law and had the knowledge of pendency ' of suit against him. The record of the case reveals that he was served/had knowledge when:
(1) He was served through publication in daily "Hamdam Kohat" before preliminary decree was passed against.
(2) He was served through daily, "Hurriat Karachi" before passing final decree against him.
(3) He had the knowledge of the pendency of the suit when he addressed application dated 21-9- 1970 from Karachi to the learned Civil Judge, Haripur and had sufficient time to appear before the said Court.
(4) He was informed of the decree by his co-villagers who stayed with him at Karachi while leaving for Haj.
(5) He had the knowledge of passage of decree against him when he visited Haripur in the year 1975 to attend the funeral of his brother.
(6) He also had the knowledge of ex pane decree in 1975 when he told Maulvi Khalilur Rehman that Haji Ghulam Sarwar had obtained a decree against him fraudulently.
(7) He had the knowledge that the property had been sold to someone else who had brought material alterations and changes through new constructions in the property when he visited Haripur in the year 1975. This fact was sufficient to put him on guard to inquire as to how the nature of the property has been changed and by whom the same was done.
20. So far as the service of respondent No,1 through publication in newspaper daily "Hamdam Kohat" and daily "Hurriat Karachi" is concerned, the same is in accordance with law. The respondent No,1 could not be served through ordinary means of service, hence the trial Court ordered that he should be served through publication in newspapers and thus mode of service A is valid and proper as per Order 5, Rule 20, C.P.C. It has been held in Sheikh Abdul Haq v. Syed Muhammad Anwar PLD 1979 Lahore 332: "Under Order 5, Rule 20 proclamation of summons in newspaper is a mode altogether different and is within the scope of alternative provided by the words, 'or in such other manner as the Court thinks ." Likewise in another case Abdul Haq v. Muhammad Azam 1988 MLD 1254 it was held: "The record of the learned Appellate Court shows that the service of appellant was attempted several times but a report came that he had gone to England. The report as such was correct.
However, that does not mean that the respondent should have known and filed address of the appellant of England. The legal -position is that in such circumstances the service is to be effected at his last known address. The service was attempted at both the addresses of Gujrat and Gujranwala of the appellant. There is no dispute permanent address of the appellant was of Gooran Jattan, Teshil Kharian, District Gujrat. A proclamation in daily Pakistan Times of 10-3-1982 was issued on his address for 20-3-1982. No other mode of service in the circumstances was possible and no other mode of service was legally required, therefore, the service of the appellant was effected in accordance with law and was sufficient."
In the light of the abovementioned judgments and the clear-cut provisions of law we have no hesitation to hold that the respondent No,1 had been properly served. Even otherwise ex parte decree cannot be set aside merely on ground of any irregularity in service of summons. As per amendment brought by virtue of Law Reforms Ordinance, 1972 in Order 9, rule 13, C.P.C. a second proviso was added in the said order which' reads as follows:-- "Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for the reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on the date and answer the claim." In a case Zafrul Haq v. Waris Iqbal and another PLD 1979 Lahore 793 it was held: "Defendant having knowledge of date of hearing in sufficient time to appear on such date and answer claim, ex parte decree against the defendant not to be set aside merely on ground of any irregularity in service of summons."' Likewise in case Sheikh Abdul Haque v. Syed Muhammad Anwar it was held: "The findings about knowledge of the suit and the date of hearing coupled with the proviso to Order IX, Rule 13, C.P.C. Proves that the respondent was duly served. The limitation for the application for setting aside the ex pane decree started in these circumstances from the date of the decree. The application submitted after a month and nine days was thus barred by time." In another case "Asif Mahmood and others v. Farkhanda Akhtar and others" it was held: "It is true that generally an application for setting aside ex parte decree under Order 9. Rule 13 of C.P.0 cannot be summarily rejected and as applicant/defendant is entitled to demonstrate by leading evidence that he was not served with summons in accordance with law. But this has no application to the present case where it is apparent on the face of the record that the appellants were fully aware of the proceedings in the suit and had purposely kept away. Consequently, even if there be some irregularity in the service of summons, the ex parte decree against them cannot be set aside in view of second proviso to Order 9, rule 13 of C.P.C. Which was added by the Law Reforms Ordinance, 1972 in order to prevent the misuse of the process of Court by the parties who do not intentionally appear in the Court despite full knowledge of the proceedings." The respondent No,1 also had the knowledge of pendency of suit against him when he addressed an application dated 21-9-1970 from Karachi to the learned Civil Judge, Haripur. He had sufficient time to approach the Court in order to find out the nature of suit pending against him but he did not bother to attend the Court. In a case M/s. Fatima Export Corporation and another v. Habib Bank Ltd.. Faisalabad it was held: "As for the knowledge of the appellant, it is evident from the letter and the telegram mentioned above that it was much before the date of hearing, namely, 6th July, 1981, that the appellant had become aware of the said date. Faced with this situation, it was argued by learned counsel for the appellants that the letter had not been written by Mr. Zafar Ahmed Malik nor the telegram had been sent by the Manager of the aforesaid Corporation (appellant No,1). No plea in this behalf was, however, raised in the application for setting aside the ex parte decree. It is, therefore, clearly an afterthought. Besides the letter and the telegram there is an acknowledgment receipt showing that the summonses were served on the appellants through registered post before the above date. It is not the case of the appellants that the acknowledgement receipt was not signed by any of their employees. We are, therefore, convinced that it was sufficiently before the date fixed for the hearing of the suit that the appellants gained knowledge of the suit and of the date of its hearing but they opted to stay back from the trial Court on the said date."
22. As mentioned above, he had sufficient knowledge in the year 1975 of the passage of the ex parte decree against him. This fact, the respondent No,1, had made clear in his own statement when he stated that he had told Maulvi Khalilur Rehman that Haji Ghulam Sarwar had obtained a decree fraudulently against him. He visited Haripur in the year 1975 to attend the funeral of his brother but he did not bother to visit the Court to get information as to whether any decree has been passed against him by the Court. The property in dispute in the meantime had been sold to petitioner in the year 1973 who had invested huge amount, brought material changes into the same. He did not bother to ask as' to how material changes have been brought into the property and who was in possession of the same. All this shows that he had sufficient knowledge of passage of ex parte decree against him but he did not care at all.
23. The next argument of the learned counsel for the petitioners is that the application filed by respondent No,1 on 23-11-1978 for setting aside ex parte decree was hopelessly barred by time. This argument of the learned counsel also has merit in it. Ex parte preliminary decree was passed against respondent No, 1 on 28-3-1969 whereas final decree was passed on 17-11-1970 against him.
As discussed above in detail, the respondent No,1 had been properly served through publication in newspapers and had the knowledge of pendency of suit against him as is clear and evident from his application dated 21-9-1970. Thereafter he demonstrated that he had the knowledge of ex parte decree obtained by Haji Ghulam Sarwar when he narrated the same to Maulvi Khalilur Rehman in 1975. He has owned the application dated 21-9-1970 in his application for setting aside ex parte decree dated 23-11-1978. Thereafter he appeared as P.W.1 in support of his application for setting aside ex parte decree. He confirmed having written and despatched an application dated 21-9- 1970. This conduct of respondent. No,1 shows that despite having clear-cut knowledge of the pendency of suit he did not bother to file application for setting aside ex parte decree :n time. The period of limitation for filing application for setting aside ex parte decree is 30 days under Article 164 of the Limitation Act. In a case Abdul Hague v. Muhammad Anwar PLD 1979 Lahore 332 it was held: "The finding about knowledge of the suit and the date of hearing coupled with the proviso to Order IX, Rule 13, C.P.C. Proves that the respondent was duly served. The limitation for the application for setting aside the ex parte decree started in these circumstances from the date of the decree. The application submitted after a month and nine days was thus barred by time."
24. The learned Additional District Judge has admitted that respondent N". I had the knowledge of pendency of suit against him. He stated: All these facts lead me to irresistible conclusion that the absence or non-appearance of the respondent was deliberate." But even then he dismissed the revision petition filed by the petitioners. We therefore, have no hesitation to hold that application filed by respondent No,1 for setting aside ex parte decree was hopelessly barred by time but both the Courts below have not properly appreciated the material available on record as well as the evidence led by the parties. They failed to apply their judicial mind. The law governing the subject was conveniently ignored by them. Their findings are, therefore, based on misreading of evidence and against the clear-cut provisions of law.
25. The argument of the learned counsel for respondent No,1 that petitioners have no locus standi to file writ petition as the original decree-holders have not joined them in filing the writ petition, this argument of the learned counsel has no force at all. The petitioners have purchased the property in nispute, have now stepped into the shoes of the decree-holders and they have legal right to challenge any order which obviously affects their rights. They were impleaded as respondents in the application for setting aside ex pane decree as per order of this Court and petition for leave to appeal filed by respondent No,1 was also dismissed by.August Supreme Court of Pakistan. The petitioners, therefore, have locus standi to challenge the impugned orders.
26. The learned trial Court under "compulsion of conscious" made observations regarding the rights of petitioners Nos.1 to 4 as subsequent vendees, we hold that those observations were uncalled for as the only question before the learned Court was as to whether the application for setting aside ex parte decree has been accepted properly by the lower Court or not.
27, As a net result of the above discussion, we accept the writ petition and set aside the impugned orders dated 8-9-1992 and 26-6-1996. The parties are left to bear their own costs.