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Civil Petition for Special Leave to Appeal No. 365 of 1969, decided on 26th February 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 7th October 1969, in Civil Revision No. 215 of 1969).

O. IX, r. 13 and Limitation Act (IX of 1908), Art. 164‑Ex parte decree, setting aside of Limitation‑Wrong address of defendant mentioned in summons as well as in citation by way of substituted service‑Limitation computed from date of knowledge of decree.

Mohammad Hussain, Advocate Supreme Court instructed by Masud Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 26th February 1970,

- This is a petition for special leave to appeal from an order of a learned single judge of the High Court of West Pakistan Lahore Seat dismissing in limine a petition under section 115of the civil procedure code.

The above mentioned petition arose out of a suit filed by the present petitioner for a declaration and a permanent injunction. The defendants in the suit could not be served and, therefore, the petitioner obtained an order for substituted service under Order V, rule 20 of the Civil Procedure Code. After this was done, by publication in newspapers, then he obtained an ex parte decree against all the defendants.

Out of the 19 defendants only one, namely Mst. Inayat Begum filed an application under Order IX, rule 13 of the Civil Procedure Code for setting aside the ex parte decree on the ground that the summonses had never been served as the petitioner had fraudulently suppressed their correct addresses and thereby misled the Court. The application for setting aside the ex parte decree was made after the expiry of 30 days on 2‑4‑1968 to have the decree passed on 21‑2‑1968 se aside. An objection was accordingly taken that the application was barred by limitation. This objection was repelled b both the trial Court as well as the High Court on the ground that the 30 days' period of limitation was in a case where the summons had been duly served, to be counted from the date of the decree and in a case where it was alleged that a fraudulent suppression of the summons bad taken place, the limitation would begin to run from the date of knowledge of the decree (vide Article 164 of the First Schedule to the Limitation Act, 1908).

Learned counsel appearing in support of the petition contends that since substituted service is just as good as any other service, this was a case where service had been duly effected and, therefore, the limitation should have been calculated from the date of the decree, namely; 21st February 1968. This is not correct, for, even the citation in the newspapers gave the wrong addresses. It could not, therefore, be said that defendants in the suit were duly served or that they must have known that they were the persons referred to in the citation.

There is no substance in this petition which is, accordingly, dismissed.

Petition dismissed

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