SULTAN MUHAMMAD vs Mst. HAMIDA BEGUM AND 18 Other
This petition for special leave to appeal challenged a High Court order that dismissed a revision petition under Section 115 of the Civil Procedure Code 1908. The underlying dispute involved an ex parte decree obtained by the petitioner against nineteen defendants after substituted service via newspaper publication. One defendant applied to set aside the ex parte decree under Order IX, Rule 13 of the Civil Procedure Code 1908, alleging fraudulent suppression of addresses. The trial court and High Court rejected the petitioner's argument that the application was time-barred, holding that limitation runs from the date of knowledge of the decree when fraudulent suppression of service is alleged, rather than from the date of the decree itself. The Supreme Court affirmed this decision, noting that because the newspaper citations contained incorrect addresses, the defendants were not duly served. The Court held that substituted service is ineffective if the publication itself contains incorrect information, preventing the running of limitation from the date of the decree. Consequently, the petition was dismissed as the lower courts correctly applied the law regarding limitation in cases of fraudulent service.
- Does the limitation period for setting aside an ex parte decree run from the date of the decree or the date of knowledge when fraudulent suppression of service is alleged?
- Is substituted service via newspaper publication effective if the publication contains incorrect addresses of the defendants?
- Can an application under Order IX Rule 13 of the Code of Civil Procedure 1908 be filed after the expiry of 30 days if the summons was not duly served?
- Section 115, Code of Civil Procedure 1908
- Order V Rule 20, Code of Civil Procedure 1908
- Order IX Rule 13, Code of Civil Procedure 1908
- Article 164, First Schedule to the Limitation Act 1908
1. HAMOODUR RAHMAN, C.J.- 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 115 of the civil procedure code.
2. 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.
3. 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).
4. 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.
5. 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.
6. There is no substance in this petition which is, accordingly, dismissed.
Cited by 3 cases
- MUHAMMAD IQBAL KHAN vs MUKHTAR AHMAD KHAN 2001 C.L.R. 39
- MUSHTAQ AHMAD vs Haji QAMARUDDIN and others 1991 CLC 1551
- THE PROVINCIAL INDUSTRIAL DEVELOPMENT CORPORATION vs MESSRS Sh. 1972 PLD Karachi 393