2011 C L C 7 3
[Quetta]
Before Mrs. Syed a Tahira Safdar and Ghulam Mustafa Mengal, JJ
MUHAMMAD SALEEM and 5 others ---Appellants
Versus
MUHAMMAD EHSANUL HAQUE GHAURI ---Respondent
Civil Miscellaneous Appeal No. 5 of .2002, decided on 22nd September, 2010.
(a) Civil Procedure Code (V o f 1908) ---
----O. IX, R.13 & O. V, R.20 ---Limitation Act (IX of 1908), Art.164 ---Trial Court decreed
the suit for recovery and damages ex parte ---Defendants filed application for setting aside
the ex parte decree which was dismissed by the Trial Court ---Defendants contended that
plaintiff committed fraud and misrepresentation by procuring the effecting of service of
summons in a less prominent newspaper preventing them from having knowledge of the ex
parte decree which they came to know about through noti ce of the Executing Court which
issued the order of attachment of their property ---Defendants, thus, sought retrial and
decision of the case on merits ---Validity ---Record revealed that defendants mentioned the
same address as in the present case - in litiga tion pending between the parties before the
court in another city ---Defendants filed suits against plaintiff in said other city which
showed that they were fully aware of the decree and order of the Trial Court against them
and knowingly filed application for setting aside the ex parte decree with considerable
delay ---Under Art.164 of the Limitation Act, 1908, where summons was not served
properly, limitation would run from the date from which applicant came to know about the
decree ---Record evidently estab lished that defendants tried to impede the proceeding
pending for execution in said other city---Defendants could not establish
misrepresentation as fraud, therefore, case could not be remanded to Trial Court which
had correctly assessed the material and a rrived at right conclusion ---Appeal was dismissed
in circumstances.
(b) Limitation Act (IX of 1908) ---
----Art. 164---Limitation ---Under Art. 164 of the Limitation Act, 1908, where summons
was not served properly, limitation would run from the time wh en applicant came to know
about the decree.
Mian Badar Munir for Appellants.
Shaukat Rakhshani for Respondent.
Date of hearing: 24th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---It is case of the appellants that the respondent filed
a suit for recovery of Rs.7,13,538 and Rs.5,001,000 as damages against their predecessor
Muhammad Hanif and Muhammad Saleem appellant No.1, which was registered on 11 -8-
1996, while notices were issued for them. But, thereafter, without return of notice it w as
ordered that notice be served through publication in newspapers i.e. Daily Mashriq Lahore.
But with mala fide intention publication was not made in said paper, rather order was
obtained for publication of Notice in Daily Pakistan or Daily Khabrain, whic h are neither
popular, nor have good circulation in Punjab particularly in Gujranwala. Despite the same
publication was made in Daily Pakistan and on basis of the same the trial Court ordered them
to be proceeded ex parte, while on 16 -9-1997 the trial Cour t decreed the suit against the
appellants without observing the provisions of Order -V, C.P.C. It is further their case that the
respondent filed application for execution of decree in May 1999, which was transferred to
Civil Judge, Gujranwala, wherein orde r for attachment of their property was made. It is their
case that they came to know about the passing of ex parte decree on 16 -9-2001, when the
notice issued by Civil Judge Gujranwala was served on them. Feeling aggrieved of the same
they filed applicatio n under Order -IX, Rule -13, C.P.C. read with section 12(2) and 151,
C.P.C. for setting aside of the impugned order and decree before the trial Court, but the same
was dismissed through order dated 11 -12-2001.
Feeling aggrieved of the same they preferred p resent appeal on grounds that the impugned
order dated 11 -12-2001 and ex parte decree dated 16 -9-1997 are contrary to law and facts, the
grounds taken by them in the application are not considered, thus they have been condemned
unheard. Further, matter had been decided without calling of evidence, which is neither legal,
nor just. Furthermore, their proper address was not given, thus the respondent committed
fraud and misrepresentation to obtain the court for effecting of service in Daily Pakistan
instead o f Daily Mashriq, which had very small circulation in Gujranwala, as such they have
no knowledge, which they for the very first time came to know during course of execution
proceedings (at Gujranwala. The trial Court mis -exercised its jurisdiction; the matt er is
required to be decided on merits, rather avoiding the technicalities. Thus prayed for setting
aside of impugned order dated 11 -12-2001 and order and decree dated 20 -5-1997 and remand
of the case for re -trial and decision on merits.
The perusal of r ecord reveals that the respondent/plaintiff filed a suit for recovery of an
amount of Rs.7,13,538 due in respect of supply of coal under contract existed between the
parties and damages on account of breach of contract to tune of Rs.500,000. The record
'further reveals that notices for predecessor -in-interest of appellants and present appellant No.
1 being defendants were issued through registered posts, thereafter, through telegraph and
TCS. As notices were not returned after service, whereupon it was orde red that the service be
effected through publication in newspaper i.e. Daily Mashriq Lahore. But on 30 -4-1997 on
statement made by counsel for the respondent/ plaintiff to the effect that daily Mashriq
Lahore has closed, as notice has been returned to him, whereupon the trial Court ordered for
publication to be made in Daily Pakistan/Khabrain' Lahore. Thus on effecting of publication
and on receiving of newspaper, due to non -appearance on behalf of appellants/defendants
they were proceeded against ex parte. The trial Court after hearing the respondent/plaintiff
and relying on the evidence produced by him decreed the suit in his favour as prayed through
'order dated 16 -9-1997. Application for execution of decree was filed on 25 -5-1999, which
was transferred t o the District Judge, (Jujranwala on request of respondent on 16 -6-1999. The
appellants/ defendants filed application under Order -IX, Rule -13, C.P.C. read with section
12(2) and 151, C.P.C. for setting aside of ex parte decree in year 2001. They raised alm ost
similar grounds as raised in present appeal in said application, which was heard and decided
through order dated 11 -12-2001, now impugned in present appeal. While rejecting the same
the learned trial court observed therein that the appellants/ judgment debtors contested the
execution proceedings in Gujranwala since 11 -11-1999, while during pendency of execution
proceedings the appellants/judgment debtors filed a suit for permanent injunction, wherein
same address was given. That suit and review applicat ion both were rejected. Another suit for
rendition of account was also filed, with same address, which was also dismissed through
order dated 19 -10-2000. The trial Court while holding that no fraud and misrepresentation is
committed by the respondent/decre e holder rejected the application being time barred and
having no force through order dated 11 -12-2001. The respondent/ plaintiff filed his written
reply to the appeal contending therein that present appeal is not competent as order made
under section 12(2 ), C.P.C. is not appealable, rather revision lies, thus the same is liable to be
dismissed. Further, the present appeal has been filed with mala fide intention only to delay
the execution proceedings. The appellants were fully aware of the proceedings whil e they
were contesting the execution proceedings, further, they filed suits against him (respondent)
at Gujranwala, but intentionally avoided to appear before the trial Court at Quetta. No fraud
or misrepresentation has been committed by him; rather the ap pellants have concealed
material facts. He prayed for dismissal of appeal. The respondent along with his reply filed
several documents pertaining to the litigation pending between the parties in Courts at
Gujranwala.
The appellants being aggrieved of ord er dated 11 -12-2001, whereby the application filed by
them under Order -IX, Rule -13, C.P.C. read with sections 12(2) and 151, C.P.C. for setting
aside of ex parte decree dated 16 -9-1997 was dismissed, preferred present appeal for setting
aside of both the o rders dated 11 -12-2001 and 16 -9-1997. The first point, which requires
consideration is that whether present appeal is maintainable, as it has been objected by the
respondent that the order of rejecting application under section 12(2), C.P.C., is not
appeal able, rather revision was required to be filed. Section 104, C.P.C. provides the details
of orders from which appeal lies and Order -XLIII, Rule -1, C.P.C. also numerate the instances
of filing of appeal. Keeping in view the same order made under section 12( 2), C.P.C. is not
included therein, as such the order made thereunder is surely not appealable, rather revision
can be filed. But -it is to be noted that the appellants approached the trial Court for setting
aside of ex parte decree not only under provision s of section 12(2), C.P.C., rather they also
filed application invoking provisions of Order -IX, Rule -13, C.P.C. As per clause (d) of Rule -
1 of Order -XLIII appeal lies against such order. Keeping in view the same the present appeal
is very much maintainable .
The main contention of the appellants is to the effect that service was not properly effected on
them, while they were not in knowledge of the suit Filed against them by the respondent, who
misled the court while got effecting the service through publi cation in such a newspaper,
which has no circulation in Gujranwala. The trial Court failed to appreciate these acts while
deciding their application for setting aside of ex parte decree. The respondent strongly
controverted the contentions raised by the ap pellants. According to him the appellants were in
full knowledge of pendency of the suit, rather they intentionally avoided to, appear, service
was effected properly. The respondent placed on record several papers pertaining to litigation
pending between t he parties in the courts at Gujranwala.
The perusal of record reveals that the respondent filed suit for recovery of amount and
damages in year 1996, whereby the service was effected on the appellants/defendants through
publication in newspaper. The orde r sheets maintained by the trial Court, copies whereof are
placed on record by the respondent, reveals that the notices were issued repeatedly through
registered post telegram and TCS, but remained unserved or not returned, whereupon order
for publication was made. As per appellants the trial Court failed to observe the procedure
provided under Order -V C.P.C., the trial Court was required to wait for report of Civil Judge,
Gujranwala to whom summons was issued for effecting of service. Order -V, C.P.C. descr ibes
the mode in which service can be effected to the respondents/defendants to the suit. Rule -20
of the Order describe the way of substituted service, clause (c) is in respect of publication in
press. While sub -rule (2) of Rule 20 provides the effect of t he substituted service that it shall
be as effectual if had been made on the defendant personally. It is further provided therein
that before making order for substituted service the court must be satisfied that the defendant
is keeping out of the way for purpose of avoiding service or due to any other reason. In
present case, as per record, after institution of suit notices were issued for the appellants/
defendants several times, while through order dated 10 -4-1997 it was ordered that notices be
issued th rough publication. On effecting of publication through order dated 20 -5-1997 the
appellants defendants were proceeded against ex parte, whereafter, suit was decreed through
order dated 16 -9-1997. The perusal of papers placed on record by the respondent not disputed
by the appellants revealed that despite the fact that litigation was pending between the parties
at Guiranwala, while the appellants filed a suit for permanent injunction in year 1996
contested by the respondent. Thereafter, he filed second suit for rendition of accounts in year
2000, which were remained pending between the parties before courts at Gujranwala and
decided thereafter. The copies of the plaint pertaining to said suits, placed on record, reveals
that the same address is mentioned ther ein as mentioned in title of the plaint pertaining to suit
filed by the respondent before the trial Court at Quetta. It is further to be noted that after
obtaining the decree the respondent got transferred the application for execution of decree to
the Dis trict Judge, Gujranwala, which is still pending there. Despite the above mentioned
facts the appellants showed their ignorance about pendency of suit and passing of decree
against them by the trial Court. But it is evident from record that the appellants f iled
objections on execution application, which were decided and rejected by the court of' Civil
Judge Gujranwala through order dated 11 -11-1999 the court which is executing the decree.
Appeal was also preferred by them. Further, filing of several applicat ions by them before the
court executing the decree at Gujranwala, in all these years is also not denied. These facts
shows that they have full knowledge, about the decree and order made against them by the
trial Court, despite the same they filed applicati on for setting aside of ex parte order and
decree in 2001 before the court of Senior Civil Judge -I, Quetta with a considerable delay,
which was decided through order dated 11 -12-2001, which is impugned in Present appeal.
As per Article -164 Limitation Act the provided period for filing an application to set aside a
decree passed ex parte is 30 days. The time is to be computed from the date of decree. But in
case where the summons are not duly served, the date when the applicant has knowledge of
the decree the time starts to run. In present case also it is plea of the appellants that they have
not been properly served, while the decree has been obtained at their back. But contrary to
their own plea taken before the trial Court they approached the court, to w hom the execution
proceedings were transferred, by not only filing objection petition, but they repeatedly filed
several applications before the court on different stages of execution proceedings since 1999
till 2001. It is further apparent from perusal of Order dated 11 -11-1999 of Civil Judge,
Gujranwala that the appellants clearly referred to the proceedings held in the trial Court at
Quetta. All these facts established that the appellants got the knowledge about the order and
decree made against them sur ely in the year 1999, despite having the knowledge they failed
to approach the trial Court for setting aside of ex parte order and decree, in time, rather they
tried to only obstruct the proceedings pending for execution of the decree at Gujranwala. The
appellants in present appeal though have asserted that they came to know about 'the ex parte
order and decree when they were served through notice by the Civil Judge, Gujranwala in
execution of decree, but they have not mentioned any specific date or even ye ar when said
notice was served upon them and they get knowledge about the same, which shows their mala
fide.
The second contention raised by the appellants is to the effect that the order and decree has
been obtained through fraud and misrepresentation, as such their contention was required to
be established through evidence, but the trial Court without calling for the evidence decided
the application in haphazard manner, which is illegal, thus required to be set aside. Though
the plea of fraud and misrep resentation cannot be established without calling of evidence, but
in order to arrive to the stage of evidence the party alleging the same has to establish prima
facie the fraud committed by the other party. Mere assertion does not require calling of
evide nce. In present case though the appellants asserted that the respondent/plaintiff obtained
the decree through fraud and misrepresentation, but their only contention is that the trial
Court without waiting for the report about service from Civil Judge, Gujr anwala ordered for
effecting of service through publication in newspaper, which was effected in Daily Pakistan,
which has no circulation in Gujranwala. It has been noted and mentioned above that the
address of appellants given in title of the plaint is the same as mentioned in the title of the
suits, applications and, even objection petition filed by the appellants in courts at Gujranwala.
This is never the case of the appellants that their wrong address was provided to the trial
Court, due to which they we re not served properly, as such providing, of wrong address
amounts to fraud and misrepresentation, thus the decree is liable to be set aside. They further
did not deny the facts' of their participation in proceedings pending before Civil Judge,
Gujranwala for execution of decree. They further not denied filing of suits and miscellaneous
applications before the courts at Gujranwala, in all these years, which clearly shows that they
were in full knowledge of order and decree made against them in year 1997 by the trial Court,
but they instead of approaching the trial Court thereby seeking setting aside of ex parte
decree they consumed their energies in obstructing the. proceedings pending for execution of
decree passed in favour of the respondent, which was ne ither legal nor proper. In the
circumstances there was no occasion for the trial Court to call for the evidence of any sort in
order to establish plea of fraud or misrepresentation, as it also amounts to disapplication of
law.
In view of above discussion the appellants have completely failed to make out any case in
their favour. The trial Court has rightly assessed the material and comes to the right
conclusion, which does not require any interference by this court. No grounds are established
by the appel lants on basis of which their time barred application for setting aside of ex parte
order and decree can be accepted while condoning the delay occurred in filing of the same.
:The conduct of the appellants are highly objectionable, they deliberately avoide d to appear
before the trial Court and they tried and succeeded to delay the execution of decree in all
these years, which is unfortunate.
The appeal is dismissed with costs throughout in favour of the respondent. The impugned
orders dated 11 -12-2001, 16 -9-1997 and 20 -5-1997 of Senior Civil Jude -I, Quetta are hereby
upheld.
A.R.K./107/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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