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Civil Revision No. 705‑D of 1981, heard on 28th March, 1983.

‑‑ ON, r. 20 read with High Court (Lahore) Rules and Orders, Vol. 1V, Chap. 7(B), r.8‑Notice published in newspaper Presumption of effective service from‑Defendant's address men tioned in summons sent through process‑server different from that mentioned in notice published in newspaper‑Rule 8, Chap. 7(B), Vol. IV of High Court (Lahore) Rules and Orders not complied with by trial Court‑Trial Court accepting service through newspaper as effective and passing ex parte decree‑Petitioners' application for setting aside ex pane decree dismissed and appeal also failed‑Held, had said rule been complied with, only then presumption about reading of notice could be raised and as such trial Court acted with material irregularity in proceeding ex parte.

M. Muhammad Sarwar Awan for Petitioners.

Mian Ihsanul Haq Chaudhry for Respondent.

Dates of hearing : 9th and 28th March, 1983.

Briefly stated the facts giving rise to this revision petition under section 115, C. P. C. are that Muhammad Boota respondent filed a suit for declaration to the effect that by virtue of agreement 8th November, 1961 the defendants‑petitioners were not entitled to transfer the house to any other person. In this suit, the learned trial Court ordered issuance of summons for 15th January, 1972. One and a joint summons was issued for the service of the eight defendants who has jointly filed the suit. These named persons were to be served on the address given as ‑No. 4‑Ranjeet Park, Masson Road, Lahore". This summons were returned unserved with the report that the owner of house had himself noted down on the summons that no one of the names, given in the sum mons, resides in the said house. The learned trial Court, therefore, directed repetition of service and the summons again indicating the address of the petitioners as No. "4‑Ranjeet Park, Masson Road, Lahore" was issued. This summons was also returned with the report that the persons, named therein have avoided service and that the ladies are not prepared to come out to accept the summons and that the summons was affixed on the outer door of the house. On receipt of this report the learn. ed trial Court directed substituted service by publication of the notice in the daily Musawat". The matter was adjourned to 4th March, 1972. A notice was published in the daily "Musawat" of 26th February, 1972 and in this notice the address of the petitioners as published reads. ,14‑Ranjeet Park, Masson Road, Lahore."

As against the address mentioned in the summons, sent through the Process‑Server and the notice published in the newspaper, the address of the petitioners, admittedly, was "4‑Ranjeet Park, Mission Road, Lahore." It is common knowledge that Masson Road is at the back of Ganga Ram Hospital whereas Mission Road is near McLeod Road. The learned trial Court, however, accepting the service so effected as effective service proceeded ex parte and ultimately passed ex parte decree dated 17th June, 1972. The respondent, after obtaining this decree filed a suit for specific performance in the civil Court at Lahore in the year 1974. In this suit the process was served on the petitioners and they appeared for the first time in the civil Court on 23rd November, 1974. They claim that then on coming to know the ex parte decree passed against them.

They moved an application under Order IX, rule 13, C. P. C. on 27^th November, 1974 for setting aside the ex parte decree. This application was, however, dismissed on 17th June, 1978 by learned Civil Judge and the appeal, filed against the said order, also failed vide order dated 3^rd May, 1981 of the learned District Judge, Lahore.

2. The learned District Judge observed that a proclamation in the daily "Musawat" was issued from which a legal presumption arises that it must have been read by the petitioners‑defendants and that it is difficult to accept that the proclamation was not read by them. He further observed that the petitioners‑defendants had the habit of suffering ex parts proceed ings as they had not shown due diligence because in another suit also, they were proceeded ex parte.

3. Learned counsel for the petitioners argued that there was no basis for ordering substituted service on the basis of the summons issued on the wrong address and even in the notice published incorrect address was given. Hence the ex parte proceedings could not legally be ordered against the petitioners.

4. In reply, learned counsel for the respondent argued that even if the plea as to mention of wrong address in the notice issued and publish ed is accepted even then the application under Order IX, rule 13, C. P. C., filed on 27th November, 1974 was barred by time as the petitioners were served in the other suit on 14th October, 1974. According to him, the petitioners came to know of the decree on 14th October, 1974 and calcu lating from this date the application was clearly barred by time. In sup port of this submission, there is only a bald assertion of the respondent made in his statement before the learned Civil Judge. One of the petition ers, on the other hand, in his statement refuted this suggestion in the cross‑examination. The case of the petitioners was that they came to know of the decree few days prior to the submission of the application after they were served in the other suit.

On the basis of the above, it cannot be successfully argued that the application under Order IX, rule 13, C. P. C. was barred by time. The view of the learned District Judge that a legal presumption arises that a notice published in the newspaper trust have been read by the petitioners is not sound, No such legal presumption under the law of evidence arises in this case as it was rightly pointed out by the learned counsel for the petitioners that even rule 8, Chapter 7 (B). Volume IV of the High Court Rules and Orders was not shown to ,have been complied with. Rule 8 (ibid)reads as under:

"In loading a judicial notice for publication In a newspaper, the Court should, in the covering letter, require newspaper to send, under postal certificate, the copy of the paper containing the notice to the party for whose perusal it is intended at the address given in the notice, marking the notice in question with rep ink, he should also be required, as proof of compliance with this order, to attach the postal certificate to his bill when submit ting the latter to the Court for payment."

Had this rule been complied with and the postal certificate had been on record, then it could be said that a presumption of fact should have been raised about the reading of the notice. This was, admittedly, no done. As such the learned trial Court acted with material irregularity proceeding ex parte. Thus there is no alternative but to set aside the order for proceeding ex parte as well as the ex parte decree passed on the basis thereof.

5. For the reasons given above, this revision petition is accepted in terms that the application under Order IX, rule 13, C. P. C. stands accepted with the result that the learned trial Court shall proceed to dispose of the suit in accordance with law and on merits. There shall be no order as to costs.

Petition accepted.

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