2005 PLP 3278 (YLR)

MUHAMMAD RAZA KHAN, J.

The facts leading to the present appeal are that Colonel (Retired) Muhammad Latif Khan filed a suit on 28-9-2002 for recovery of Rs.7,90,000 on the basis of promissory note executed on 7-3-2002. Summons was issued to the defendant Rehmatullah under Order XXXVII, rule 2, C.P.C. on 30-9-2002. On 16-10-2002 it was reported that the defendant was avoiding the service, hence, order of substituted service was passed which was duly executed but on 5-11-2002 the learned Additional District Judge, D.

1. Khan found that the Moharrir has failed to issue the summons in accordance with Appendix-13 of Form-IV, C.P.C., hence, fresh summons was issued for service in person or through substituted service. On 27-11-2002 the substituted service was executed. The boundaries of the house of the defendant, where the summons was affixed, were specified, however, the defendant was absent. A decree for recovery of Rs.7,90,000 was passed ex parte on 27-11-2002. An application for setting aside the ex parte decree was moved on 12-3-2003 and after getting reply from the plaintiff/decree holder, the said application was dismissed on 9-6-2003. This order has been challenged through the present appeal on the grounds that the Process Server had duly recorded that the appellant/defendant was not present in D. I. Khan and had gone to Karachi, therefore, there was no service on the defendant. In such a situation, the application should not have been dismissed without recording evidence about the service or the knowledge of the appellant.

2. Arguments heard and record was examined with the help and assistance of learned counsel for the parties.

3. It may be stated here that the summons was issued through the Process Serving Agency and on the report, that the defendant was avoiding service, an order of substituted service was passed which was executed and the learned Additional District Judge-I, D.I. Khan, while dismissing the application for setting aside ex parte decree, had observed that Order XXXVII, C.P.C. was a special procedure and extraordinary circumstances have to be proved by the applicant for setting aside the ex parte decree and since the said standard is not achieved, the ex parte decree was not set aside. However, it has to be observed that while stressing on the provisions of Order XXXVII, C.P.C. and the responsibility of the defendant/appellant, the learned trial Court has not complied with Rule 10-A of Order V, C.P.C. which provides that "simultaneously with the issue of service through the Process Serving Agency, a copy of the summons along with copy of the plaint must be despatched to the defendant through the registered post AID." Had it been done, the matter would not have delayed so far. Under the said Rule, any endorsement recorded by the postal staff could be proved to be the due service. The Process Server,, who could report that the defendant had gone to Karachi for earning his livelihood, could also find out the postal address of the defendant and another notice under registered cover could have been dispatched to the said address so that the ex parte decree and the chances of application for setting aside ex parte decrees could be avoided. When the law requires that a particular procedure must be followed, its non-compliance creates numerous complications. Any action performed, howsoever, honestly but in violation of the A statutory provisions, damages the end result. The application for setting aside ex parte decree was not decided after recording evidence. The applicant could have been asked to prove his constant stay at Karachi during the entire period when the process was issued after the institution of suit. However, no opportunity of production of evidence was given. Even the Process Server was not required to appear in the witness-box to affirm his report on oath. The decisions on technicalities and that too for huge amount are never encouraged. In series of cases, it has been held that instead of technical knock out, the cases should be decided on merits and in such-like cases, the acceptance of application on payment of cost is normally adopted as a golden device for conclusive settlement of controversies. Rule 4 of Order XXXVII, C.P.C. especially provides a (sic) set aside the decree under Order XXXVII, C.P.C. It (sic). "

4. Power to set aside decree:--After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit." Hence, a person appearing with an application for setting aside the decree needs to be heard. If it seems reasonable to Court, such application can be accepted on such terms as the Court thinks fit. Hence, this provision specifically authorizes the Court to set aside decree under special circumstances on appropriate terms. For the disposal of cases on merits and to avoid the ex parte decree of huge amount of Rs.7,90,000, the ex parte decree and proceedings should have been set aside and thereafter the application for leave to defend should have been considered whether it can be allowed or refused. If there was a justification to allow the application for leave to defend, the leave could be granted either conditionally or unconditionally. During the conditional grant of leave, either the entire amount or part of the amount could be ordered to be deposited in Court while the security bond should have been obtained for the rest of the suit money.

5. The learned Court should examine the application for leave to defend drafted on 7-3-2005 and presented to the Court on 12-3-2003 which should be disposed of as stated hereinabove and if the leave is granted, the specific issue may be framed with a direction to the appellant/ defendant Rehmatullah to prove that the promissory note was bogus and fake. The trial of the case may be held in the above manner.

6. With these observations, the appeal is accepted on payment of cost of Rs.3,000, the impugned order dated 9-6-2003 and the ex parte decree dated 27-11-2002 are set aside. The parties are directed to appear before the learned Additional District Judge-I, D.I. Khan on 19-7-2005. M H.B.T./512/P Appeal accepted.