MUHAMMAD ASHRAF LEGHARI, J.--- The appellant through this 1st Appeal has challenged the .Order passed by District Judge West Karachi whereby he refused to set aside the order dated 21.10.1992 and ex pane judgment and decree dated 13.1.1990 and 20.1.1990.
2. Briefly stated the facts of this case are that respondent Muhammad Taj filed summary Suit bearing No. 8/89 on 12.9.1989 for recovery of amount of Rs.18,000/- against the appellant Noor Hussain. This suit was admitted to regular hearing on 26.9.1989. Summons were issued to defendant/appellant (hereinafter referred to as the appellant). The summons were issued to appellant for two dates i.e. 17.10.1989, and 8.11.1989. Thereafter application was moved by the plaintiff/respondent (hereinafter referred to as respondent) for substituted service. The said application was allowed and publication was made in daily newspaper IMROZE dated 23.11.1989 for the date of hearing fixed on 16.12.1989. The appellant remained absent and service was held good.
The matter was adjourned to 4.1.1989 for ex parte proof. On that day the affidavit of respondent was filed in ex parte proof. The matter was fixed for judgment on 13.1.1990. Resultantly, the suit of respondent was decreed on the aforesaid date. On 19.4.1990, the appellant came to no of this decree when he received a notice for execution proceedings from the District Judge Chakwal as the execution was transferred to aforesaid Court having the jurisdiction in the matter.
3. On coming to know of this ex parte decree, the appellant moved an application for opening his side and allowing-him to defend the suit filed under Order 37, Rule 1, CPC. The aforesaid application was dismissed on 21.10.1992. The said order is impugned in this 1st Appeal.
4. This matter was admitted on 14.2.1993. The respondent was served and Mr. Imtiaz Hussain Gondal, Advocate had appeared for the respondent on 31.1.2001, thereafter the learned Advocate did not appear for respondent. The notices were issued to Advocate time and again but he did not turn-up.
5. I have heard Mr. Akhtar Hussain learned counsel for appellant. It is mainly contended that the suit was admitted for hearing and for two dates only the summons were issued in the name of appellant, thereafter, the publication was made in newspaper daily IMROZE and on the basis of that publication, the service was held good. It is submitted that the appellant is an illiterate man belonging to village Chakwal Tehsil and District Chakwal, Punjab, whereas the suit was filed at Karachi in the Court of District Judge, West Karachi. It is argued that appellant and respondent are closely related. They had disputed over landed property situated at Punjab. The respondent managed this promissory note and filed suit at Karachi. He referred to certain documents produced on record. The result was that ex parte order was passed against him and the appellant could not get knowledge of ex parte decree passed against him. It is submitted that ex parte order was passed on 16.12.1989 and the matter was adjourned to 4.1.1990 for ex parte proof. It is submitted that the suit was decreed on the basis of an affidavit filed by respondent which is contrary to the provisions of CPC since there was no such specific order by the Trial Court, therefore the affidavit in proof of averments of plaint was without lawful justification. The reliance in this context is made to the cases of Muhammad Suleman v. Habib Bank Limited, Hyderabad (1988 CLC 969) and Bashir Ahmed v. Abdul Waheed (PLD 1995 Lah. 98).
6. I have gone through the record. It appears that the suit was admitted on 26.9.1989 and summons were issued to appellant for 17.10.1989. The matter was then taken on 17.10.1989 and the summons were issued to plaintiff for 8.11.1989. On that date, order of substituted service was passed and the matter was fixed on 16.12.1989. On that date the service was held good on the basis of publication made in roznama IMROZE dated 23.11.1989. The appellant admittedly belonged to District Chakwal of Province Punjab. Summons had been issued for two dates only and publication in newspaper in such situation was not sufficient service. Appellant is an illiterate man belonging to a small village of District Chakwal. The next point argued before me has force in it as in ex parte proof affidavit of respondent was filed which was relied upon by the learned Trial Court and decree was passed against the appellant. There was no specific order by the Trial Court to the effect that ex parte proof should be given by way of affidavit. The affidavit of respondent has no evidentiary value in absence of any specific order by the Trial Court. The respondent should have come in witness-box to support the averments of paint but he did not examine himself . In this context the reliance is placed upon the cases referred above which support the point raised by learned counsel for appellant.
7. In this view of the matter, the impugned order dated 21.10.1992 and judgments and decree dated 13.1.1990 and 20.1.1990 respectively are set aside and the application under Order 37, Rule 4 read with Section 12(2), CPC is remanded to the Trial Court for deciding the same afresh on merits.