2021 PLP 1189 (CLC)

ABDULLAH BALOCH, J.

This petition is directed against the ex-parte decree dated 04.08.2018 and order dated 07.05.2019 passed by learned Senior Civil Judge-III, Quetta (hereinafter referred as "the trial Court") and judgment dated 04.09.2019 (hereinafter referred as "the impugned judgment and decree") passed by the learned Additional District Judge-IV, Quetta (hereinafter referred as "the appellate Court") whereby the appeal of the petitioner was dismissed by way of upholding the ex-parte decree and order dated 07.05.2019 of the trial court.

2. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.245000/- and monthly rent of 11 months at the rate of Rs.5000/- per month against the mortgage principal loan amount of Rs.190,000/- w.e.f. 12.01.2010 till realization of decree.

3. After restoration of case, notices were issued to the petitioner/respondent, but he did not appear; thus, ex-party proceedings were initiated and after recording ex-party evidence case was decreed in favor of respondent/plaintiff vide judgment and decree dated 04.08.2018 and thereafter the decree-holder filed an execution application before the executing Court and during the course, the petitioner filed an application under Order IX, Rule 13, C.P.C. for setting aside the ex-party decree as well as application under section 21, Rule 26, C.P.C. for staying the proceeding of execution, which was contested by the other side and after hearing the parties, the application was dismissed fallowed by the appeal and the same was also dismissed by the learned appellate Court vide judgment dated 04.09.2019.

4. The learned counsel for petitioner mainly contended on sole ground that the service of notices have not been properly effected upon the petitioner/defendant due to wrong address mentioned in the plaint by the plaintiff/respondent due to mala fide intention; thus, the entire ex-parte proceedings carried, are not sustainable and liable to be set aside. It is further contended by the learned counsel for the petitioner that the valuable rights of the petitioner are involved in the matter and the petitioner was condemned unheard "Audi Alterm partem". Thus, the judgment and decree passed by Courts below are liable to be set aside and the matter be remanded after providing full and fair opportunity to the petitioner.

5. On the other hand, learned counsel for the respondent vehemently opposed the contention so raised by the learned counsel for the petitioner and he contended that the judgment-debtor willfully and intentionally avoided to receive the notices; thus, all modes of services were adopted by the learned trial Court, but the petitioner has failed to appear and contest the case. He further contended that several opportunities were afforded to the petitioner, but he has failed to avail any opportunity. The respondent/plaintiff proved its case through confidence inspiring evidence and the judgment and decrees passed by the Courts below does not suffer from any illegality or irregularity to be interfered by this Court. He requested for dismissal of petition.

6. Heard the learned counsel for the parties and perused the record, which reveals that suit for recovery was filed by the respondent/plaintiff against the petitioner/defendant for recovery of Rs.245000/-along with II month's rent. The record further reflects that though the notices were normally issued to the petitioner/defendant, but the same could not serve upon the petitioner and thereafter publication was made in daily newspaper i.e. Bakhabar Quetta dated 15.10.2017 for appearance of petitioner/defendant. Thereafter ex-parte proceedings were initiated against the petitioner and after recording ex-parte evidence the suit was decreed in favour of respondent/plaintiff. To ascertain the factual position whether the notices have properly been served upon the petitioner/defendant, the impugned decree and order passed by the learned trial Court does not justify the reasons for rejection of application under Order IX, Rule 13, C.P.C. In view of the provisions of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, wherein it is categorically mentioned that a person "shall" be entitled for fair trial and due process, for convenience Article 10-A of the Constitution is reproduced as under: "10-A Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."

7. Bare reading of above article made it crystal clear that the rights of a person for fair trial in civil and criminal proceedings are protected under the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise uncle Order V, Rule 20, C.P.C., substituted the service can only be ordered, where the Court was satisfied that there were reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way. It was held in the Case titled as "Malik Muhammad Nazir v. Mian Abdul Raheem and another" (PLD 1968 Lahore 792) that where there was no sufficient material on record to show that a defendant is either avoiding service or refusing to accept the service, the order for substituted service could not have been passed nor can ex-parte proceedings be ordered on the basis of such service.

8. Be that as it may, the learned trial Court should have done substantial justice between the parties and to restore the suit in its original position and open the suit to the parties to prosecute the suit on merits and to lead their evidence pro & contra, but in the case in hand, the learned trial Court has failed to get effect service of notice upon the petitioner/defendant through process server or on the pointation of the respondent/ plaintiff as the premises of defendant was well known by the respondent. Even at all, if the service could not be effected the trial Court was duty bound to have asked for filing of a fresh address of the defendant, but instead the trial Court ordered for proclamation in the newspaper, which procedure was bad in law and the process server had not reported either the avoidance or refusal of service by defendant, as such, defendant had not been properly served. Thus, in view of the above, the petitioner/defendant was non-suited and condemned unheard. It is the consistent view of the superior Courts that the cases be decided on merits instead of technicalities. For the above reasons, the petition is accepted and the impugned ex-parte order and decree dated 04.08.2018 and order dated 07.05.2019 passed by the learned trial Court and judgment and decree dated 04.09.2019 passed by the appellate Court are set aside and without touching the merit of the case, the matter is remanded to the learned trial Court with directions to proceed with the case from very initial stage and to provide full and fair opportunity to the parties to file written statement and lead their evidence and thereafter decide the case in accordance with law within a period of three months, positively. MQ/143/Bal. Petition allowed.