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Civil Miscellaneous Appeal in Suit No. 339 of 1984, decided on 5th May, 1986.
‑‑‑O. IX, R. 13 & O. XXXVII, R. 4‑‑Setting aside, ex parte decree‑‑Ex parte decree passed after publication of service‑‑Requirements of publication‑‑By publication, due service, held, could be made only on establishing that defendants were avoiding service by post and through bailiff‑‑Merely making one attempt could not be presumed that defendants were avoiding service‑‑Making out a case for leave to defend suit was not an essential requirement for setting aside ex parte decree‑‑Such a decree could be set aside on special circumstances and if necessary leave could also be granted or execution thereof, could be stayed‑‑Non‑service of summons could be treated as a special case which was a valid and strong ground for setting aside a decree.
Nizam Ahmed Khan for Plaintiff.
Mamoon Hasan for Defendants.
This is an application under Order XXXVII, Rule 4, C.P.C. read with Order IX, Rule 13, C.P.C. for setting aside the decree passed against the defendants 1 to 5 on 25‑3‑1985. The main ground for setting aside the decree is that the defendants were never served with summons issued by the Court. From the record it is clear that the summonses were issued through the bailiff by registered post and publication was made on 21‑9‑1984. The summons issued by registered post were returned unserved. The bailiff also reported that the defendant No.l has closed the office and the defendants Nos. 2 to 5 were outside Karachi. After this report no further attempt seems to have been made to serve the defendants in any manner. The main emphasis of the learned counsel for the plaintiff is that as rule 8 has been complied with and publication has been made, it is a due service. In my view by publication due service can be made only if it is established that the defendants are avoiding the service by post and through the bailiff. By merely making one attempt it cannot be presumed that the defendants were avoiding service. Further in view of the order passed in suit No. 12/84 and 793/85 the service on the defendants cannot be held to be proper and valid. The learned counsel for the plaintiff also contended that the defendants should have made out a case for leave to defend which they have not, and therefore, the decree cannot be set aside. Order XXXVII, Rule 4 does not make it incumbent that such a case should be made out. In fact it provides that a decree can be set aside on special circumstances, and if necessary leave may also be granted or execution may be stayed. In the present case non‑service of summons can be treated a special case which is a valid and strong ground for setting aside the decree. The decree passed against the defendants No.l to 5 is set aside. These defendants are directed to file application under Order XXXVII, Rule 3, C.P.C within ten days from today. They should obtain the copy of the plaint from the office.
A . A . / U‑8/ K Application accepted
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