2000 PLP 530 (CLC)

5. On the other hand, the learned counsel appearing on behalf of the respondents vehemently opposed the arguments of the learned counsel for the petitioner and contended that the petitioner was served properly and his counsel had been appearing in the Court and then absented himself, so the ex parte proceedings were taken against the petitioner. 6. 1 have heard the arguments of the learned counsel for the parties and also perused the record.

7. The reference was received by the Senior Civil Judge, D.G. Khan through post on 22‑3‑1983. The application was entered and summons were issued to the defendant/petitioner for 26‑4‑1983, through registered post envelop. On that date the office has reported that the registered envelop was not deposited in the Court and the case was adjourned to 29‑5‑1983. On 29‑5‑1983 the Court has ordered that due to non‑deposit of form and registered envelop, the notices could not be issued to the defendants/ petitioners, and then the case was adjourned to 6‑7‑1983 and 12‑9‑1983. On 12‑9‑1983 it was ordered by the Court that the notices could not be issued due to non‑deposit of process fee and notices, and the case was adjourned to 5‑11‑1983. On that date, it was ordered b~ the Court that service of the petitioner should be effected through publication in the daily "Sang‑e-Meel", Multan and the case was adjourned to 11‑12‑1983 and then to 22‑2‑1984. On that date, the petitioner was proceeded against ex parte as the notice was issued in the daily "Sang‑e‑Meel", Multan. There is a summon with the file of the lower Court, which was issued in the name of Mr. Talib Khan Daudi, Advocate for 12‑9‑1983 and this counsel has written on the summon that the petitioner has not appointed him his counsel and the summons be issued to the petitioner in accordance with law.

8. The petitioner has been served through substitute service by the Court without adopting other mode of service as provided under the law. Order 5, Rule 10(a) of the C.P.C., has provided that (1) Simultaneously with the issue of summons under Rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgement due, another copy of the summons signed and sealed in the manner provided in Rule 10. (2) An acknowledgement purporting to be signed by the defendant of the receipt of the registered communication or an endorsement by a postal employee that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons is to be prima facie proof of service of summons.

9. From the record, it reveals that registered post was not issued by the Court as reported by the office on 22‑3‑1983, 26‑4‑1983 and 29‑5‑1983, that the plaintiffs have not deposited the process fee as well as registered envelop for issuance to the defendant/petitioner.

10. The petitioner never avoided the service of summon or notice issued by the Court and there was no reason to issue substitute service. Where the defendant evades service or cannot be served in the ordinary way or refuses A to accept service or has not been heard of for a long time and the service cannot be effected in the ordinary manner the Court, if, it is satisfied of the same can order substituted service under Rule 20, Order 5 of the C.P.C.

11. There is no order on the file that the service through ordinary mode of service could be effected on the petitioner or the process server had ever reported, that the petitioner had avoided the summon or refused to accept the same.

12. The object behind substitutive service is that the defendant may l, either himself learn about the proceedings pending against him in the court, or he may be informed by some other person, who has read such notice in the newspaper, in case the defendant has not read the same. Another object behind service through publication is that the proceedings in the suit may 8 continue and the same may not be defeated, merely because the defendant cannot be served with summons in. the ordinary manner.

13. The petitioner had made no attempt to avoid acceptance of service in ordinary way. The Trial Court by ordering substitutive service without justifying the legal position had proceeded against the petitioner ex parte.

14. Notice of a proceedings is a basic right of party and notice by substituted service cannot be ordered unless Court comes to the conclusion that party was avoiding service of notice or personal service was not C reasonably practicable upon all defendants. Mere issue of notice several times upon the defendants/party without any report of bailiff, that it was not reasonably practicable for him to serve such notice, would;not lay foundation for publication of notice. In this context a reference can be made to a case of M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643, Major Taj‑ud‑Din and others v. Muhammad Akhtar and others 1989 CLC 2183, Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67, Javed Raza v. Razi Ahmad 1991 MLD 2602, Major (Rend.) Muhammad Yusuf Baig v. Mst. Saeeda Parveen 1984 CLC 668.

15. The Trial Court without complying the condition laid down in the Order 5, Rules 10(a), 12, 13, 15, 17 and 20, C.P.C., had ordered for substitutive service against the petitioner.

16. In passing the impugned judgment on application under section 12(2), C; P.C., filed by the petitioner the Trial Court has not adverted to the above mentioned legal aspect of the case. The judgment, dated 13‑4‑1988 has been passed in slipshod manner, and in violation of the principle of natural justice. The petitioner has been proceeded against ex parte without legal justification and the Court has exercised the jurisdiction illegally and with material irregularities. The dictum laid down in the cases (supra) is fully D applicable to the present case.

17. Resultantly, the revision petition is accepted and the order, dated 28‑6‑1997 passed by the Senior Civil Judge, D.G. Khan is set aside and the application under section 12(2), C.P.C., is accepted. The case is remanded to the Reference Court. The reference application filed by the respondents shall be deemed to have been pending and the Court will decide it afresh after hearing the parties, and recording their evidence. Q.M.H./M.A.K./W‑2/L Order accordingly.