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Civil Revision No. 295 of 1966, decided on 13th July 1967.

O. IX, r. 13‑(Setting aside ex parte decree)‑Notice served on defendant's counsel on date on which, such notice required him to appear in Court‑Held hardly sufficient.

O. V, r. 20‑Court ordering substituted service by promulgation in newspaper without waiting for return of notice already issued‑Order held to be with out jurisdiction‑(No material before Court by which it could be "satisfied" that defendant was avoiding service)‑Defendant, held, not duly served.

O. V, r. 20 (2)‑Substi tuted service as effective as personal service‑Defendant, however, not debarred from showing that there was no justification for ordinary substituted service or that circumstances did not exist to warrant any such order‑[Ashique Hussain and others v. Lachmi Narain and others A I R 1940 Oudh 81; Kedar Mull Agarwalla and another v. Wazifunnessa and another A I R 1934 Cal. 745 and Panju Ram v. Uttam Chand and another A I R 1928 Lah. 799 ref.].

O. IX, r. 13 read with O. IX, r. 6 and Ss. 115, 151 and Limitation Act (IX of 1908), Arts. 164 & 181‑Order for ex parte proceedings and ex parte decree passed without notice of date of hearing to defendant‑Orders, held, not passed in accordance with O. IX, r. 6‑Application to set aside such order and decree did not properly fall under O. IX, r. 13 but under S. 15 ‑Limitation for such application prescribed not by Art. 164, Limitation Act i.e. 30 days but by Art. 181 (i.e. three years)‑High Court bound to set aside such an order or decree under its revisional powers under S. 115.

The ex parte order against the defendant was passed without any notice of the date of hearing to them. It was not passed in accordance with the provisions of Order IX, rule 6, C. P. C. and the application by defendant No. 1 to set aside the ex parte decree did not properly fall under Order IX, rule 13 of the Code to which Article 164 of the Limitation Act was applicable. The application was competent under section 151 of the Code for which the period of limitation is three years as prescribed by the residuary Article 181 of the Limitation Act.

Mst. Zainab Bibi and others v. Bihara Lal and others A I R 1935 Pesh. 186; Rahimuddin Sheikh and others v. Sarifan Nisa and other A I R 1954 Assam 92; Ram Reddy and another v. Yenka Reddy A I R 1956 Hyd. 139 and Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore P L D 1954 Lah. 575 ref.

Mst. Lal Devi and another v. Amar Nath A I R 1920 Lah. 261; Mian Kamal Din v. Malik Muhammad Bashir and others P L D 1952 Lah. 456 and Netai Sikari and others v. Sashi Bhusan Biswas and others P L D 1962 Dacca 60 not applicable.

Moreover on a parity of reasoning set out in P L D 1964 S C 91 even if it were to be held that the application by respondent to set aside the ex parte decree gassed against him, was barred by time; the High Court was bound, under the circumstances of this case, to set aside the order by the learned trial Court for the ex parte proceedings in the suit and the ex parte decree, as these were procured without due service of the notices on the defendant.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97 rel.

Kh. Muhammad Tufail for Petitioner.

Zulfiqar Ali for Respondent No. 1.

Nemo for Respondent No. 2.

Hate of hearing: 1st June 1967.

This is a revision by Malik Muhammad Nazir petitioner under section 115 of the Code of Civil Procedure against the order dated 17‑5‑1966 passed by the learned Civil Judge, Lahore, whereby, in accepting the application of Mian Abdul Rahim respondent No. 1, he decided to set aside the ex parte decree passed against him on 29‑6‑1964.

2. Briefly the facts are these: On 25‑2‑1964, the petitioner brought the suit against respondent No. 1 and another for possession by pre‑emption of some land, in the Court of Ch. Ghulam Rasul, Civil Judge, at Lahore. Afterwards the suit was transferred to the Court of Mr. Rasa Bakhsh Leghari, Civil Judge, Lahore. On 24‑2‑1964, after the file was received by him, he ordered the issue of notices to the parties and their learned counsel for 9‑4‑1964. On the next date of hearing on 9‑4‑1964, the learned Civil Judge directed fresh notices to be issued to them defendants and their counsel for 4‑5‑1964. Again on 4‑5‑1964 fresh notices were ordered to issue to them for 30‑5‑196, These notices were not returned to the Court after service when the case was taken up by the Court on 30‑5‑1964.

On this date the Court proceeded to order that the service on the defendants be effected by publication in the newspaper for 10‑6‑1964 After the publication in the "Kohistan", Lahore, neither the defendants nor their learned counsel appeared in Court on the next date of hearing on 10‑6‑1964, and ex paste proceedings were taken against them. The Court after recording the ex parte evidence, eventually decreed the suit of the plaintiff petitioner on 29‑6‑1964.

3. It was on 30‑9‑1964, that Mian Abdur Rahim respondent No. 1 put in the application under Order IX, rule 13 read with section 151, C. P. C. to set aside the ex paste decree passed against him, inter alia, on the main ground that after the transfer of the suit to the Court of Mr. Rasul Bakhsh Leghari, Civil Judge, Lahore, he was not duly served for any date of hearing fixed in the case. There was no effective service on him by publication through the newspaper under Order V, rule 20, C. P. C. and was there sufficient cause to set aside the ex parte decree passed against him. This application was resisted by plaintiff petitioner on the ground of limitation as well as on the merits and the trial Court, therefore, framed the following issues in the case:‑--

(1) Is the application barred by time

(2) Was the plaintiff not duly served If so, what is its effect on the case

(3) Relief.

After recording the evidence led by the parties, the learned Court below on 17‑5‑1966, accepted the application by respondent No. 1 and decided to set aside the ex parse decree passed against him. The Court found on both the issues in favour of respondent No. 1. In the opinion of the Court after the transfer of the suit to the Court of Mr. Rasul Bakhsh Leghari, Civil Judge, Lahore, it was necessary to have served the defendants with the notices sent to them. The notice sent to the defendants and their learned counsel for 9‑4‑1964, was actually served on Mr. Muhammad Tufail Dhami the learned counsel for respondent No. 1. But what appears to have happened is that on 9‑4‑1964 before the process could be returned after the service, the Court had already adjourned the case to the next date for 4‑5‑1964 and ordered fresh notices to issue to the defendants and their learned counsel. On the next date of hearing, in the absence of the service, again the Court had to order fresh notices to issue to them for 30‑5‑1964. From the statement by A. W. 1 Muhammad Luqman Ahmad Civil Court, Lahore, it is clear that the Court had not received the two notices issued to the defendants and their learned counsel for 4‑5‑1964 and 30‑5‑1964, after service. In these circumstances on 30‑5‑1964, the Court was not justified in ordering the service to be effected on the defendants by proclamation in the newspaper in contravention of the require ments of Order V, rule 20, C. P. C. Therefore, in the opinion of the Court below, after the transfer of the suit to the Court of Mr. Rasul Bakhsh Leghari, the defendants were not duly served with the notices for the date of hearing when the ex parte proceedings were ordered against them. There was, under the circumstances, sufficient cause to set aside the ex paste decree against the defendants and the application made by the respondent was held to be within time.

4. I have heard the learned counsel for the petitioner who has argued the case with vehemence. The notice (Exh. A. W. 1/1) sent to respondent No. 1 and his learned counsel Mr. Muhammad Tufail Dhami Advocate for 9.4‑1964, was served on the counsel on 9‑4‑1964. Apparently, after service the notice had not been sent in time to the Court on 9‑4‑1964. The Court had, therefore, ordered fresh notices to the defendants and their learned counsel for 4‑5‑1964. Mr. Dhami, has appeared as a witness (A. W. 3) for respondent No. 1 to depose that after the service of the notice on him on 9‑4‑1964, when he went to the Court, he learnt from the Reader that the case had already been postponed to the next date for which fresh notices had been ordered to be served on them. This explanation by the teamed counsel in the case, has been accepted by the Court below and is consistent with the proceedings taken on 9‑4‑1964. Even otherwise this notice to the learned counsel served on 9‑4‑1964 to appear in Court on the same date was hardly sufficient. Be A that as it may the trial Court, in the exercise of its discretion] did not act upon the service of that notice on the learned counsel and decided to issue fresh notices to the defendants and their learned counsel for 4‑5‑1964.

5. As is evident, the processes issued by the Court to the defendants and their learned counsel for the two successive dates for 4‑5‑1964 and 30‑5‑1964 were never received back by the Court. Therefore, the real cause for the failure of the service of the notices issued to the defendants and their learned counsel for the two dates, could not be ascertained. There is nothing what ever to show that the defendants had refused or avoided to accept service of the notices issued to them. In these circumstances, there was no material before the Court on 30‑5‑1964, to have ordered the service to be effected on the defendants by the substituted process by advertisement in the newspaper. Order V, rule 20 of the Code of Civil Procedure provides that where the Court is "satisfied" that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the same cannot be served in the ordinary way, the Court shall order the summons to be served in such other manner as it may deem fit. The laconic order dated 30‑5‑1964, passed by the Court is altogether silent and in the absence of any material on the record, it cannot be said that the Court had "satisfied" itself about it before ordering the substituted service by proclamation in the newspaper against the defendants. I am inclined to think that in these circumstances the Court had no jurisdiction to order the service to be effected against the defendant by the substituted mode, and I have no hesitation in agreeing with the Court below that the defendants were not duly served for the 10th of June 1964, when the ex paste proceedings were ordered against them by the Court.

6. Under sub‑rule (2) of rule 20 of Order V of the Code of Civil Procedure, service substituted by order of the Court is as effectual as it had been made on the defendant personally But the party concerned as not debarred from showing that there was no justification for ordering substituted service against him by the Court and the circumstances did not exist to warrant any order for the substituted service, passed against him. In Ashique Husain and others v. Lachhmi Narain and others (A I R 1940 Oudh 81). The Court observed:‑

"The proposition in clause (2) of Order V, rule 20 that substituted service is to be taken as effectual as personal service means that the Court hearing the case may proceed with the case after the substituted service as if the defendant had been personally served, but it does not preclude the defendant from coming forward later on and showing that the substituted service effected against him had been improperly ordered."

Similarly in Kedar Mull Agarwalla and another v. Wazifunnessa and another (A I R 1934 Cal. 745) it was held:‑

"Even though the substituted service may be considered as personal service on the defendants under the provisions of Order V, rule 20 and clause (2) this does not preclude the defendants from afterwards showing that in fact there had been no service on him at all and that the order‑for substituted service was procured on misrepresentation of facts."

Similarly in Panju Ram v. Uttam Chand and another (A I R 1928 Lah. 799) it was held that "an ex parte decree should be set aside when there is nothing on record to show that the provisions of Order V, rules 19 and 20 were satisfied before ordering substituted service."

7. The learned counsel for the petitioner has challenged the order under revision on the main ground that the application of the respondent to set aside the ex parte decree was barred by time under Article 164 of the Limitation Act. In support of this contention the learned counsel has strongly relied on Mat. Lai Devi and another v. Amar Nath (A I R 1920 Lah. 261), Mian Kamal Din v. Malik Muhammad Bashir and others (P L D 1952 Lah. 456) and Netai Sikari and others v. Sashi Bhusan Biswas and others (P L D 1962 Dacca 60). These authorities are to the effect that the words "when the summons was not duly served" in Article 164, Schedule I, Limitation Act, refer to the summons sent for the first hearing of the suit and where there has been due service of the summons the mere fact that the defendant has not received notice of an adjourned hearing will not cause limitation to run from the date on which the defendant becomes aware of the decree having been passed against him and in such a case the time for the application to set aside the ex parte decree commences to run from the date of the decree under this Article. But these cases on which the learned counsel has relied are not applicable to the present case.

8. In Mst. Zainab Bibi and others v. Bihari Lal and others (A I R 1935 Pesh. 186) the facts were that no notice of the adjourned hearing was issued to the plaintiffs in pursuance to the directions by the Court.

The plaintiffs were not aware of the date fixed in the suit, which was taken up and dismissed in default. In those circumstances, the Court held that the case was covered by section 151 and not by Order IX, rules 8 and 9 and that Article 181 of the Limitation Act was applicable and not Article 163. According to Rahimuddin Sheikh and others v. Sarifan Nesa and others (A I R 1954 Assam 92), where date for hearing is not fixed or is not notified to the plaintiff or the petitioner, Order IX, rule 8 has no application and the period of limitation for restoration of the application would be three years under Article 181, the residuary Article. In such a case the restoration application can only b. made under section 151 and not under Order IX, rule 9, and Article 163 was not applicable. In another case from the Indian Jurisdiction, in Ram Reddy and another v. Yenka Reddy (A I R 1956 Hyd. 139), it was held that Order IX, rule 3 contemplates a default by the plaintiff when the suit is called on for hearing. The suit could only be called on for hearing under this rule when parties have notice of the hearing. Where the parties were not served, as such it cannot be said that the plaintiff had notice of the hearing. The dismissal therefore cannot be deemed to be under Order IX, rule 3. In the result Order IX, rule 9 would also not become applicable. In the opinion of the Court, Article 163, Limitation Act, which prescribes limitation for an application to set aside the order of dismissal, contemplates default of the plaintiff's appearance and where no notice was served, it cannot be said that there was any default by the plaintiff to appear within the meaning of this Article. An application to set aside the order of dismissal in such cases would be under section 151, C. P. C. governed by Article 181, Limitation Act. Both these cases from the Indian jurisdiction have relied on Mst. Zainab Bibi and others v. Bihari Lal and others from Peshawar, discussed above. In Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limned, Lahore (P L D 1954 Lah. 575) learned Single Judge of the Lahore High Court had held that if the date is not fixed for the hearing of the suit then neither Order IX, rule 8 nor Order XVII, rule 2, C; P. C., would give any power to the Court to dismiss the suit for default on that date. The order of dismissal for default in these circumstances being without jurisdiction and nullity, it was not necessary to have it set aside. To such a case Article 181, Limitation Act applied and not Article 163, and the application for restoration lay under section 151, C. P. C., and not under Order IX, rules 8 and 9.

9. On the same reasoning it is, therefore, evident that the ex parte order against the defendants in the present case was passed without any notice of the date of hearing to them. It was not passed in accordance with the provisions of Order IX, rule 6, C. P. C. and the application by defendant No. 1 to set D aside the ex parte decree did not properly fall under Order IX, rule 13 of the Code to which Article 164 of the Limitation Act was applicable. The application was competent under section 151 of the Code for which the period of limitation is three years as prescribed by the residuary Article 181 of the Limitation Act.

10. Last but not the least, I have to follow with respect the decision in Muhammad Sawleh and another v. Messrs United Grain and Fodder Agencies (P L D 1964 S C 97) an instructive case on the subject. The relevant facts in that case are simple. The suit was fixed for hearing for 21‑4‑1960 : but this date was subsequently declared to be holiday and the Court had closed. The file was put up before the learned Sub‑Judge instead on 22‑4‑1960 and he passed the ex parts order against the defendants in their absence. Eventually on 27‑4‑1960, the Court passed the ex parte decree in favour of the plaintiff against the defendants. On the application made by the defendants in that case to set aside the decree passed against them the trial Court held that in the circumstances, the two orders dated 22‑4‑1960 and 27‑4‑1960, passed by tire learned Sub‑Judge were without jurisdiction and that the application for the restoration under section 151, C. P. C. was competent. To this Article 181 and not Article 164 of the Limitation Act was applicable. The trial Court therefore, accepted the applica tion of the defendants to set aside the ex parte decree passed against them. But on revision the High Court of West Pakistan reversed the order, inter alia, on the finding that "if the case was fixed for a day on which the Court was closed the litigant was bound to appear the next day." But after the matter had gone up, the Supreme Court was clearly of the opinion that the ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned, and that the order passed on 22‑4‑1960, directing ex parte proceedings was not a valid order. In the background of these facts the Supreme Court also observed:‑

"The contention on behalf of the appellant is that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. The argument on the other hand is that when a Court is seized of a case it has jurisdiction to determine whether summons has been duly served and this will include a case where the Court finds though not quite correctly that there is sufficient legal notice to the defendant.

It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court is taking up a case on a particular day without proper notice acted without jurisdic tion and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction."

But in the circumstances of that case, the Supreme Court did not find it necessary to decide as to whether the order of the learned Sub‑Judge, dated 22‑4‑1960, and the ex parte decree of the 27th April 1960, were not wholly void ; although there was no doubt as to their being not in accordance with law. In the opinion of the Supreme Court this was a sufficient ground to set them aside and the learned Single Judge sitting in the revision, in exercise of his jurisdiction under section 115, C. P. C. bad the authority and was bound to set aside the ex parte proceedings and the ex parte decree, for they were the result of illegal or materially irregular exercise of jurisdiction. In this context the Supreme Court remarked:‑--

"Even if it were found that the order of the trial Court recalling the ex parte decree could not be sustained because the application for setting aside the decree lay only under Order IX, rule 13, C. P. C. and was time‑barred the learned Judge could and under the circumstances should have set aside the illegal order directing ex parte proceedings. The learned Single Judge failed however to exercise his jurisdiction on account of the view which he took and which we have found to be mistaken that the appellants were bound to appear on the 22nd April 1960. We would therefore ourselves exercise the jurisdiction which he should have exercised and would set aside the order of 22nd April 1960, and the decree based upon it. It is true that the learned Single Judge had a discretion to set aside or not to set aside the order of 22nd April 1960, but the discretion is judicial and subject to the appellate powers of this Court and in this case the failure to exercise jurisdiction was due to a mistaken view of law. At the same time it should be stated that if there be jurisdiction in a Court to act the jurisdiction should be exercised if the failure to exercise it will lead to injustice and there is no principle of public policy which forbids its exercise in the particular ,circumstances.

When questioned as to why the illegal order of 22nd April 1960, should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limitation for filing an application for revision had expired when the learned Single Judge decided the case, and the revision before him was not directed against the order of 22nd April 1960, but against the order of the trial Court setting aside the ex parte decree. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limitation for an application in revision. The only article which could be applicable was the residuary Article 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu. At the same time it should be remembered that the respondents had themselves approached the High Court in the exercise of its revisional jurisdiction and once the High Court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C. P. C. make such order in the case as it thinks fit." On a parity of these reasonings, even if I were to hold that the application by respondent No. 1 to set aside the ex parte decree passed against him, is barred by time, I am bound, under the E. circumstances of this case, to set aside the order dated 10‑6‑1964 by the learned trial Court for the ex parte proceedings in the suit and the ex parse decree dated 29‑6‑1964, against them, as these were procured without due service of the notices on them.

Under the circumstances, discussed above, this revision has no force and is dismissed. But there shall be no order as to costs.

A. H. Petition dismissed.

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