2025 PLP 797 (CLC)

SHAHID BILAL HASSAN, J.

Tersely, the facts of the case relevant for the disposal of this appeal are that a Notification under Section 4 of the Land Acquisition Act, 1894 dated 26.05.2007 was issued for the construction of Habibabad Flyover Bridge, Tehsil Pattoki, District Kasur. Later on, Notification under Sections 17(4) and 6 of the Act dated 03.10.2014 was also issued. After following all the procedural and codal formalities, the Award for the acquisition of the land measuring 285-Kanals was announced on 17.03.2015 whereby the acquired land of the respondents was evaluated at Rs.75,000/- per marla along with 15% requisition costs and 8% compound interest. Additionally, Rs.1,458,000/- was adjudicated as compensation for the building. Being dissatisfied with the quantum of the evaluation in the Award dated 17.03.2015, the Respondent No.1 filed a reference under Section 18 of the Act, challenging the Award, on 23.04.2015. Along with the reference, the Respondent No.1 also filed an application under Section 5 of the Limitation Act, 1908 for the condonation of delay. The reference was entrusted to the learned trial Court on 20.06.2015, wherein notices were issued to all the appellants initially vide order dated 20.06.2015. The Respondent No. 1 did not deposit the process fee and Talbana and the similar position remained till 16.06.2016. However, on 27.06.2016, ignoring the fact that the Respondent No. 1 did not deposit the process fee and Talbana, the learned trial Court resorted to issuance of notice through publication in newspaper and adjourned the case for 29.07.2016 and on the said date the present appellants were proceeded against ex parte. Eventually, the reference was decreed ex parte after recording evidence vide ex parte judgment and decree dated 09.11.2021. The appellants on gaining knowledge on 20.11.2021 filed an application under Order IX, Rule 13, Code of Civil Procedure, 1908 for setting aside ex parte proceedings dated 29.07.2016 and decree dated 09.11.2021. The Respondent No. 1 contested the said application by filing its written reply. The learned trial Court vide impugned order dated 24.10.2022 dismissed the said application. The appellants earlier filed a writ petition against the said order but the office raised objection which was sustained vide order dated 20.01.2023; hence, the instant appeal.

2. Heard.

3. Considering the arguments and going through the record, it is observed that the matter requires consideration with regard to the applicability of the provisions contained under Order V, Rule 20, C.P.C. Record divulges that the learned trial Court ordered to issue notices to the appellants subject to deposit of process fee and Talbana by the Respondent No. 1 but the same was not deposited despite grant of different dates and the learned trial Court without considering the same resorted to substituted service through publication of court notice in the newspaper. Even if for the sake of arguments it is presumed that the process purportedly issued for the service upon the present appellants was served or refused to be accepted, the learned trial Court, before resorting to substituted service under Rule 20 of Order V, Code of Civil Procedure, 1908, could not satisfy itself by recording statement of the process server as required under Rule 19 of the Order V of the Code, 190, which stipulates:- '

19. Examination of serving officer. Where a summons is returned under Rule 17, the Court shall, if the return under that rule had not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be examined by another Court, touching hi proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.' When the position remained as such, the act of the Court for resorting to substituted service cannot be said more than an illegality and nullity in the eye of law. It is a settled principle of law that unless all efforts to effect the service in the ordinary manner are verified to have been failed, substitute service cannot be resorted to. There is a series of authorities on this proposition of law. However, the reference can be made to Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99) and Haji Akbar and others v. Gul Baran and 7 others (1996 SCMR 1703). I have no, slightest doubt in holding that the orders for substitute service were passed in a mechanical fashion and without proper application of mind. Such orders were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile. In such circumstances the substituted service being in violation of the law and the rule laid down by the Honourable Supreme Court as referred above could not be deemed to be valid service. Therefore, when the basic order dated 29.07.2016 for initiating ex parte proceedings against the present appellants has no backing of law and has been passed without adopting due process of law, the superstructure and edifice built thereon i.e. subsequent ex parte decree dated 09.11.2021 cannot stand because if the same is allowed to hold field, it would definitely infringe the rights of the appellants' inalienable right of defending the case and would amount to condemn the appellants without affording an opportunity of hearing. The above fact is sufficient to condone the delay in filing the application under Order IX, Rule 13, Code of Civil Procedure, 1908.

4. In view of the above, the appeal in hand is accepted, impugned judgment and decree dated 09.11.2021 and order dated 29.07.2016 are set aside, consequent whereof the application under Order IX, Rule 13, Code of Civil Procedure, 1908 moved by the appellants stands allowed. The trial Court is directed to proceed with the reference after obtaining reply from the present appellant and conclude the same preferably within a period of three months, even if it has to fix the case on day to day basis. MQ/C-25/L Appeal allowed.