MUHAMMAD HALEEM, J.-This appeal by special leave is from the judgment dated 2nd June 1972, passed by a learned Single Judge of the Lahore High Court in Regular Second Appeal No. 820 of 1965 by which it was dismissed with costs.
2. The facts necessary for the' decision of this appeal are that the parties were carrying on partnership business under the name and style of Madina Foundry Works, Batala before 1947, and after Partition they were jointly allotted `Davi Das Mohan Singh Workshop' and `Kalu Ram Foundry' in 1974 and they continued to carry on the partnership business but the appellant denied to the respondent the profits earned by the partnership business and therefore, the respondent on the 10th of September 1959, filed a suit in the Court of Civil Judge, Lahore seeking for the dissolution of partnership and .For rendition of accounts. The appellant was served in the said suit on the address given in the plaint whereafter he filed the written statement in which he denied the alleged partnership. After the respondent had .Led some evidence on certain issues, the Court was abolished and the case finally stood transferred to the Court of the Special Civil Judge, Lahore, from which Court notices were issued by the parties for 7-12-1960. It transpires -that the notice on the counsel, Mr. Ahmed Saeed Kirmani for this date was served but he returned the notice with the endorsement that he was no longer appearing for the appellant. However, no service could be effected on the appellant and notwithstanding the service on the counsel, the Court again ordered for the issue of notice for service on the appellant for 17-4-1961 and this time the mode being substituted service. Such service was effected by affixation and the beat of drum as provided by rule 4, Order VII-8, Volume 4 of the High Court (Lahore) Rules and Orders. The appellant not having appeared again, further proceedings in the suit were ex parte against him and on 24-5-1961 ex parte preliminary decree was passed.
3. The appellant alleges that he came to know of the decree on 9-7-1961 when he received a notice from Mian Barkat A.I, the local Commissioner appointed for taking accounts and thereupon he applied on 11-7-1961 under Order IX, rule 13 read with Order XLVII, C. P. C. To have the decree set aside. The respondent contested the application firstly, on the ground that it was barred by limitation as it was filed after the period prescribed by Article 164 of the First Schedule to the Limitation Act ; and secondly, on the plea that the appellant was duly served.
4. At the same time the respondent denied having colluded with the process-server in regard to the making of false reports as regards the non-service of notices on the appellant. Two issues were framed, the first related to the question of limitation and the second, as to whether there was any sufficient cause for setting aside the ex parte preliminary decree. On both the issues the findings were against the appellant, and by order dated 10-11-1962, the application was rejected. The appellant also did not succeed before the Additional District Judge, Lahore who held that the application for setting the decree was beyond time and accordingly dismissed the appeal on 22- 12-1962. The appellant then filed a revision before the Lahore High Court which was dismissed in limine on 7-3-1966. The litigation did not end here. The appellant again filed a suit to set aside the ex parse preliminary decree on the ground of fraud in the Court of the Civil Judge, Lahore on 9-7- 1963 which was dismissed on 3-7-1964 as being barred by res judicata. The appellant did not succeed in appeal which was also dismissed on 31st of July 1964 and the revision preferred in the High Court against this order met the same fate and the order passed is impugned in this appeal.
5. It may also be mentioned at this stage that before the ex pane preliminary decree was passed, the appellant also filed a suit in which he sought relief of permanent injunction to restrain the respondent from claiming any benefit in the partnership business, which suit was dismissed on 21- 3-1963 and the judgment assumed finality as no appeal was filed to assail it.
6. Leave to appeal was granted to consider whether the Courts below were correct in denying to the appellant the opportunity to lead evidence on the plea of fraud set out to avoid the ex pane decree on the view taken that the suit was barred by the principles of res judicata.
7. In seeking to have the ex parte decree set aside the appellant in paragraph 8 of the application made to vague allegation that it was the respondent who was responsible for the making of the false reports by the process-server in regard to non-service of notices on him. No specific issue was framed but the second issue covered it namely, as to whether there was sufficient cause for setting aside the ex parse decree against the appellant. The mainstay for the plea of collusion being that he had not shifted from his house on which address he was served in the suit. However, in cross-examination he admitted that Mr. Ahmad Saeed Kirmani was his counsel and that thereafter he had engaged two other Advocates, namely, Messrs Muhammad Hussain and Arshad Hussain. The trial Court held that not only the appellant was served through his counsel Mr. Ahmad Saeed Kirmani for 7-12-1960, but that he was also duly served by substituted service for 17-4-1961 and therefore, he had knowledge of the date of hearing of the suit. Impliedly, the plea of collusion was repelled and further the application was held to be time--barred as he had filed it beyond the period prescribed by Article 164 in the wake of the knowledge as to the date of hearing of the suit.
The appellate Court also decided the issue of limitation against the appellant and this could not have been unless it had accepted the finding of the trial Court as to the date of service of notice on the appellant which was taken to be the starting point for the running of time for the purpose of Article 164 of the Limitation Act. The conclusion thus is inescapable that in accepting knowledge for the purpose of limitation the appellate Court also impliedly rejected the plea of collusion though there was no expression of opinion on that question. The High Court treating the question of limitation as the only one involved in the case, decided it against the appellant. No doubt it was urged before the High Court that the notices were suppressed and a false report was 14 made by the bailiff, yet this plea was not taken into consideration while deciding the issue of limitation against the appellant and it was observed that if the appellant felt aggrieved he could file a suit to have the ex parte decree set aside on the ground of fraud. It was this observation that led to the filing of the suit to avoid the decree.
8. In our view the litigation must be deemed to have concluded by the judgment of the High Court dated 6-3-1963, by which it was held that the application for setting aside the decree was time- barred. Mr, Ahmed Saeed Kirmani was duly served for 7-12-1960 and it was his duty to have inform the appellant of the date of hearing. The only way he could have avoid communicating with the appellant was to have filed a document in writing under Order III, rule 4, sub-clause (2) of the C. P.
C. Showing that his authority was determined in which case the Court would have granted him leave to withdraw. Not having done that the legal consequence provided by rule 5 of Order III, C. P.
C. Would follow, i.e., it shall be presumed that the notice was duly communicated and made known to the party. But for the presumption which arises under rule 5, a counsel if he were empowered, would decline to accept notice and thus the work of the Court would be impossible. It is for this reason that the Legislature) has provided for the consequence of service on the counsel. In the absence of anything to rebut it, the trial Court was justified in holding that the notice was duly communicated to the appellant as the appointment of the counsel had remained in force.
Therefore, the appellant was duly served for 7-12-1960. Not only that but it further held that the appellant was duly served by substituted service. Again this mode is as effectual as personal service on the defendant. It is one of the modes of service and has been given statutory recognition not only by Order V, rule 17 o the C. P. C. But also by rule 4, Order VII-8, Volume 4 of the Lahore High Court Rules and Orders. There is nothing on record to sustain that there was any non- compliance in which it had to be effected and none was pleaded. In the circumstances no fault can be found if the trial Court held it as good service on the appellant. There was, therefore, no scope for the plea of collusion in the light of this finding by the trial Court and the plea stood impliedly rejected.
9. The judgment of the High Court in Civil Revision should have concluded the litigation but the appellant taking the benefit of the observation which had no legal force commenced the second round of litigation by filing a suit for setting aside the ex parte decree. In the impugned judgment of the High Court it has been observed that the learned counsel for the petitioner did not lay much stress on any fraud alleged to have been practised by the respondent on the Court but raised a new point as to whether there was jurisdiction to order substituted service as no effort was, made to serve the appellant personally. This point was not considered for neither it was taken in the plaint nor was there any finding to sustain it. The learned counsel for the appellant wanted to wriggle out of the concession stating that it was not so made but there is nothing before us to conclude that the counsel had not said so. Thus, even at the stage of Revision the plea was not seriously pressed and the High Court was, therefore, justified in holding that the ex parte preliminary decree had attained finality consequent upon the Revision having been dismissed by the High Court. The plea of collusion was taken by the appellant and repelled by the Court. The suit, therefore, filed to challenge it on the same ground, was barred by section 11, C. P. C. No exception can be taken to the judgment of the High Court. The appeal, therefore, has no substance and is dismissed without any order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.