2020 PLP 172 (YLR)

ABDUL HAMEED BALOCH, J.

This appeal is directed against the order dated 07.04.2017 ("impugned order") passed by learned Additional District Judge-VI, Quetta ("trial court") whereby an application under Order IX, Rule 13, C.P.C. filed by the appellant for setting aside the ex-parte decree dated 31.12.2012 was dismissed.

2. Brief facts of the case are that the respondent/plaintiff Mir Muhammad Ali Rind filed a suit against the appellant for recovery of damages worth Rs.250 million, for loss of reputation due to making false allegations of corruption and running Terrorist Camps against him. On receipt of suit, notice was issued to the appellant, whereupon the appellant filed his written statement through his counsel. Out of the pleadings of the parties the issues were framed on 08.02.2007. On 02.05.2009 suit of the respondent/plaintiff was dismissed under Order XVII, Rules 2, and 3, C.P.C., against the said order, the respondent/plaintiff filed an application before the Additional District Judge-VI, Quetta for its recalling, which was dismissed. Feeling aggrieved by the said order, the respondent/plaintiff assailed the same before this court by filing Civil Miscellaneous Appeal No.13 of 2009 and with consent of both the parties, the case was remanded. On receipt of case file, the trial court issued notices to the parties but neither the appellant nor his counsel made their appearance and from 13.08.2011 till 14.03.2012 the notice of the appellant was ordered to be repeated for twelve dates of hearing but due to non-appearance of appellant, on 14.03.2012 order for issuance of notice through publication was passed and on 05.04.2012 the counsel for the appellant informed that the daily newspaper Jang has not circulation in Turbat and requested for publication of notice in the Daily Intekhab, which was accepted, but in spite of publication the appellant failed to appear before the court, therefore he was proceeded against ex parte and the trial court after hearing the respondent/plaintiff decreed the suit in his favour vide judgment and decree dated 31.12.2012.

3. Thereafter the respondent/ plaintiff filed an Execution Application before the executing court, which is still pending.

4. Meanwhile the appellant filed an application under Order IX, Rule 13, P.P.C. for setting aside the judgment and decree dated 31.12.2012, which was contested by the respondent/plaintiff by way of filing rejoinder. The trial court after hearing the parties, rejected the application under Order IX, Rule 13, C.P.C. Hence this appeal.

5. Learned counsel for the appellant contended that after remand of the case by this Hon'able Court on 27.06.2011, the process issued by the trial court was never served upon the appellant; that there is nothing on record to show that the appellant deliberately avoided acceptance of summons issued by the trial court; that without adopting proper procedure and instead of ordering affixation of notice on the outer door of the house of the appellant, the trial court ordered for making publication in the name of the appellant in daily `Intekhab'; that the appellant did not come across the publication; that consequently an ex-parte order was passed against the appellant by the trial court on 27.4.2012, which was followed by ex-parte judgment and decree dated 31.12.2012, which did not come to the knowledge of the appellant; that on 20.8.2015 an execution application was also filed by the respondent but notice of the same was also not served upon the appellant till 13.6.2016; that on 13.6.2016 the appellant got knowledge about pendency of the execution application against him, upon which the appellant approached the trial and submitted an application for setting aside the ex-parte judgment and decree but the trial court dismissed the said application vide impugned order; that the time start from the knowledge and the law does not favour the adjudication on technicalities rather on merits. He therefore prayed for accepting the application by setting aside the impugned order.

6. Learned counsel for the respondent contended that the appeal filed by the appellant is barred by time as the appellant has failed to explain the long standing delay; that the learned counsel for the appellant was present when the case remanded by this Hon'ble court. He therefore prayed for dismissal of the appeal.

7. We have heard the learned counsel for the parties and have perused the record. The perusal of record reveals that the case was remanded by this court on 26.6.2011, whereupon the trial court registered the case and on 13.8.2011 issued notices to the parties for appearance. On 7.9.2011, 21.9.2011, 10.10.2011, 20.10.2011, 29.10.2011, 17.11.2011, 29.11.2011 none was present on behalf of the parties. On 15.12.2011 counsel for the plaintiff/respondent appeared. On 14.3.2012 the trial court directed the plaintiff for publication of notice in the daily 'Jang' newspaper, however on 05.04.2012 the counsel for the plaintiff requested for publication in the daily 'Intekhab' instead of Daily 'Jang'. The request so made was allowed by the trial court and the plaintiff was directed to submit the publication on 23.04.2012, but the plaintiff did not submit the publication on the same day however on 27.4.2012 the plaintiff submitted copy of the publication. On 20.11.2012 statement of the representative of Daily Sangeen Zhob was recorded and thereafter on 31.12.2012 the suit of the plaintiff was decreed.

8. In view of the referred facts, the Order V, sub-rule (1) of Rule 20, C.P.C. comes into play, therefore it would be appropriate to reproduced the same herein below: Order V, Rule 20 C.P.C. Substituted service (1). Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by- a) Affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or c) Urgent mail service or public courier services; or d) Beat of drum in the locality where the defendant resides; or e) Publication in press; or f) Any other manner or mode as it may think fit; Provided that the court may order the use of all or any of the aforesaid manners and modes of service simultaneously."

9. The referred provision clearly shows that the court has power to adopt procedure of substituted service, only when all efforts to effect the service upon the defendant in the ordinary course are made. The perusal of record reveals that the appellant was residing at Turbat City and running business by the name of Mekran Petroleum Service at main Road Turbat but there is no report of the process server as to whether the summons were served or un-served upon the appellant. The record further reveals that the trial court did not order for affixation of the notice at the outer door of the house of the appellant or at his business address nor the same was sent through courier service. It seems that the trial court has failed to follow the procedures as provided under Rule 20 of Order V, C.P.C., therefore the publication in the Daily Intekhab cannot be considered as effective service of notice upon the appellants/ defendants.

10. Record transpires that publication was made in Daily Intekhab Hub for the date of 23.04.2012 but the appellant was not proceeded against ex-parte on the said date and the matter was adjourned by the trial court for 27.04.2012. Without issuing any notice for the appellant for 27.04.2012 and without making any publication for 27.04.2012, the appellant was proceeded ex-parte by the trial Court on the basis of publication made for the date of 23.04.2012 which is a grave illegality. For rendering this view, we are fortified from the dictum laid down by this Court in the case of Abdullah Jan v. Bibi Almas 2016 CLC 1465, wherein it has been held as under: "Even otherwise, the trial court before making order for publication of notice in press, did not order affixation of copy of summons at some conspicuous part of the house or place of business of the appellants. If such procedure was adopted, the appellants could have been served. Thus, the given facts lead us to the conclusion that even proper procedure as provided by Rule 20 of Order V of the C.P.C. has also not been adopted by the trial court, therefore, the publication of notice in the daily newspaper Baakhabar cannot be considered as effectual service of notice upon the appellants/ defendants."

11. Record reveals that on getting knowledge of impugned ex-parte judgment and decree, the appellant filed the application for setting aside the same. In the circumstances of the instant case the limitation will run from the date of knowledge of the appellant. It has been established that the appellant was not aware about the announcement of ex-parte judgment and decree passed by the trial court and no notice was served upon him, therefore limitation will not be a hurdle in the way of the appellant. It is settled principle of law that the matters should be decided on merits and not on technicalities. In view of above, the appeal is allowed and the impugned order dated 07.04.2017 as well as ex-parte judgment and decree dated 31.12.2012, respectively passed by the Additional District Judge-VI, Quetta are set aside. The case is remanded back to the trial court with direction to decide the same on merits within a period of four months strictly in accordance with law by providing fair opportunity of defense to the appellant. SA/79/Bal. Appeal allowed.