ZULFIQAR ALI Versus MUHAMMAD SODAGAR

MUHAMMAD SHERAZ KAYANI, J.--- The above captioned revision petition calls in question the validity and legality of the order passed by the Additional District Judge, Dudyal on 30.08.2015, whereby, the learned Court below has dismissed the application filed on behalf of the present petitioners, on the ground of limitation.

2. Precise facts, culminating into the filing of the above titled revision petition are that Zulfiqar Ali and another, applicant/petitioners, herein, filed an application for setting aside the ex parte decree dated 28.02.2011, against Muhammad Sodagar, non applicant/respondent, herein, before the Court of Additional District Judge, Dudyal on 21.03.2013. It is stated that the plaintiff/non applicant, therein, wanted to snatch the landed property of the defendant/applicants/petitioners, herein and for that purpose, he filed a suit and with the connivance of the concerned staff, obtained wrong reports regarding service of the defendants, whereas, the fact of the matter is that the process server never visited the defendant nor the applicants ever refused to acknowledge the summons and all the reports were fake and fictitious. It is claimed that valuable rights of the applicants are attached with the suit property and the applicants got knowledge of the ex parte decree, in March, 2013 and they filed the application for vacation of ex parte decree.

3. The application was contested by the other side by filing objections and in light of the pleadings of the parties, the learned trial Court, vide judgment and order dated 30.08.2015, rejected the application on the ground of limitation and also for want of proof, hence, the above titled revision petition before this Court.

4. Mr. Kamran Tariq, Advocate, the learned counsel for the petitioners, while reiterating the facts of the petition contended that the petitioner No.2 was never served and the report was submitted, fraudulently, with the connivance of the plaintiff and the concerned process server. The learned counsel maintained that under Order V, rule 17 of the C.P.C., if the defendant had refused to acknowledge the summons, it was enjoined upon the serving officer to affix a copy of the summons on the outer door of the house of the defendant but this procedure was not adopted in the case in hand and just a vague and ambiguous report was submitted to the trial Court, that too, without affidavit on the prescribed form, which has been provided in the Code of Civil Procedure. The learned counsel further submitted that the trial Court has rejected the application under Section 12(2) of C.P.C. on the ground of limitation, whereas, under Article 181 of the Limitation Act, the prescribed limitation is 3 years and the application was filed within the prescribed period, hence, the findings of the trial Court are not in accordance with law, hence, not sustainable. The learned counsel stressed the point that the suit property is highly valuable and it was illogical for the defendant to sleep over his own cause, therefore, by accepting the instant revision petition, the judgment under challenge be set aside and the trial Court be directed to decide the case after recording evidence. In support of his submissions, the learned counsel referred the following case law:--

1. 2011 SCR 214

2. 1987 CLC 1994 [Karachi]

5. Mr. Mumtaz Hussain Chaudhary, Advocate, the learned counsel for the plaintiff/respondent , herein controverted the stand taken by the learned counsel for the petitioners, supported the impugned order on all corners and raised a preliminary objection regarding maintainability of the petition on the ground that the requirements of Section 115 of the C.P.C. have not been fulfilled while filing the instant revision petition because the attested copies of the pleadings of the parties have not been attached with the petition, therefore, the petition merits dismissal on this sole ground. On merits, the learned counsel submitted that the application for vacation of ex parte decree was hopelessly time-barred, therefore, has rightly been rejected by the trial Court. The learned counsel maintained that the petitioner No.1 was duly served however did not appear before the Court, whereas, the other petitioner refused to receive the summons, whereupon, ex parte decree was passed, in accordance with law. The learned counsel submitted that under Article 164 of Limitation Act, the prescribed period for filing an application for vacation of ex-parte decree is (30) days, whereas, the application in the case in hand was filed after elapse of more than two years, which was clearly time barred and the same has rightly been held by the trial Court. The learned counsel, finally craved that by dismissing the instant revision petition, the impugned order be maintained.

6. I have heard the learned counsel for the parties, gone through the record and considered the controversy, carefully.

7. A careful perusal of the file reveals that the application under Section 12(2), filed on behalf of the present petitioners has been dismissed, mainly on the ground of limitation. According to the learned counsel for the plaintiff/respondent, herein, the case in hand is covered with Article 164 of the Limitation Act. In this regard, it may be stated that the above Article 164 is applicable, where the defendant is served and he absents himself after service, whereas, in the case in hand, the service of the defendant is denied and it has been alleged that the service was not effected under law and the report was fake, vague and ambiguous one. In case, where the service of the defendant is denied, the limitation under Article 181 of Limitation Act is (3) years.

8. The controversy regarding limitation came under the consideration of the Hon'ble apex Court of Azad Jammu & Kashmir in case titled Muhammad Bashir Khan v. Muhammad Sharif and 2 others, 2011 SCR 214, wherein, their Lordships in the apex Court have pleased to observe as under:

"11. The trial Court dismissed the suit on the ground of limitation. Although the limitation for setting aside an ex parte/consent decree by way of an application under section 12(2), C.P.C. can be filed within 3 years and the suit for cancellation of the decree was filed after a period of 13 years of the decree, but it is on the record that the appellant was not a party in consent decree. We agree with the view expressed in cases titled Syed Kamal Shah v. Sher Baz Khan and another [1994 MLD 2334] and Muhammad Sultan v. Sardar Begum and 6 others, [2005 SCR 80] that if a person is not a party in a case, there is no limitation for filing a suit for cancellation of decree adversely affecting him, but we refrain to express any opinion on the limitation because what is limitation for filing a suit for cancellation of a decree passed in absence of a party can only be determined by the trial Court. It may be observed that the question of limitation is a mixed question of law and facts and in the present case it can be determined after recording evidence of the parties. Since, we have decided that the suit for cancellation of a consent decree is also competent and the judgment of the trial Court as well as of the High Court is being vacated by this Court, we leave it to the wisdom of the trial Court to decide the question of limitation."

9. As far the contention of the learned counsel for the petitioners that the procedure, laid down in Order V, rule 17 of the C.P.C. was not adopted, while effecting service upon the defendant is concerned, I would like to reproduce the relevant provision of law, which reads as follows:--

"17. Procedure when defendant refuses to accept service or cannot be found- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service on the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which was issued, while a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in those presence the copy was affixed."

10. Now, I would also like to reproduce the contents of the report, submitted by the process server, which is as follows:

11. Likewise, the affidavit, sworn by the process server contains the following wording: -

12. A perusal of the above reproduced provision of law, in contemplation with the report of process server, it becomes crystal clear that the requirement of the above rule was not fulfilled. Neither the copy of the summons was affixed nor the report was submitted in accordance with law and when, the service was not effected under law, no resolution could have been passed and if the same was rendered, the same must have been vacated on the application of the defendant, after recording evidence. The proposition has already been resolved by the Karachi High Court in case titled Muhammad Ibrahim v. Mst. Mehmooda, [1987 CLC 1994] Karachi. Relevant observation lies at page 1998 of the report, which reads as under: -

"The Court will set aside the ex-parte decree if it finds that the defendant was not duly served. Whether the defendant was duly served or not, the Court must find it on evidence and give parties opportunity to lead evidence. The word 'duly' in Order IX, rule 13, C.P.C. is not equivalent to 'Personally'. Due service of summons comprises of, apart from tendering a copy of the notice, reading and explaining the contents thereof for the cognizance of a party as to the factum of pending litigation is posted. The indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of or refusal to receive the summons. A vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant/petitioner had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular relief/sum. Therefore, if the defendant/petitioner is shown to have no knowledge of the suit or the decree, he can be taken to have shown sufficient cause for non - appearance so as to enable him to invoke Order IX, rule 13, C.P.C. . "

13. Now, coming to the conclusion of the case, as observed above that the limitation for filing of application under Section 12(2) C.P.C. is (3) years, therefore, the findings of the trial Court regarding limitation was not in accordance with law.

14. The other point is regarding the procedure to be adopted while effecting service upon a defendant, under Order V, rule 17 of C.P.C. The file speaks loud that the requisite procedure has not been adopted, while serving the defendant No.2, therefore, it can safely be concluded that the findings of the trial Court are not in line with law, hence, not sustainable under law.

15. What emerges from the above detailed discussion is that while accepting the instant revision petition, the application under Section 12(2) of C.P.C., filed before the Court below is hereby accepted. The impugned judgment of the trial Court is set aside and the judgment and decree passed dated 28.02.2011 is also set at naught and the case is remanded to the trial Court with the direction to obtain the written statement from the defendant/petitioners herein and decide the controversy after providing reasonable opportunity of producing evidence and hearing the parties, within a reasonable time.

ZC/34-AJK(HC) Case remanded.