2008 PLP 543 (CLC)

NASIM SIKANDAR, J.

This first appeal seeks to challenge an order of the learned trial Court, Additional District Judge, Depalpur, District Okara, dated 2-1-2004. Through that order he refused to set aside ex parte judgment and decree, earlier passed against the appellant on 24-10-2003.

2. The present respondent Aamir Naveed of Muhammad Pura, Okara, filed a suit for recovery of Rs.25,000 based upon a pro note, dated 22-7-2002. The suit, filed under Order XXXVII, C.P.C. on 24-6-2003, was decreed after the trial Court proceeded ex parte against him on receipt of the report "Ankarai", service through affixture and lastly through proclamation on 12-10-2003. The present appellant filed an application for setting aside ex parte judgment and decree on the ground that he was never properly summoned nor he ever refused to receive the Court's notice, the publication of notice in. the newspaper was also denied on account of absence of knowledge. Learned trial Court after hearing the parties refused to set aside the judgment and decree, dated 24-10-2003. The operative part of the order, contained in para. 4 of the order, dated 2-1-2004, reads as under:-- "(4) Arguments considered and record perused. The record reveals that firstly, the summonses under Order XXXVII, C.P.C. were issued in the name of the petitioner/judgment-debtor for 10-7-2003. He refused to accept the service as per report of Muhammad Saleem process-server, dated 8-7-2003 attested by Civil Nazir. Then fresh summonses were issued for 30-7-2003 and the service was effected through affixation of the summonses; vide report of Muhammad Saleem, process-server, dated 29-7-2003 attested by Civil Nazir. Lastly the petitioner/ judgment-debtor was served through proclamation in the "Daily Insaaf" on 2-10-2003. Postal service is also available on the record, which shows that the publication was duly sent to him. In spite of that, the petitioner/judgment-debtor opted to remain absent from the Court. He was, therefore, proceeded against ex parte. The respondent/decree-holder brought the original pro note on the record. The suit was, therefore, decreed. There are no special circumstances, in the present case as mentioned in rule 4, Order XXXVII, C.P.C. to set aside the impugned judgment and decree."

3. The respondent decree-holder' having failed to appear despite service was proceeded ex parte on 2-4-2007. As a matter of fact at the time of service last process he stated in writing that he had no existing dispute with the present appellant.

4. Learned counsel for the appellant in support of his submission that superior Courts have always favoured adjudication on merits, relies upon the ratio in re: Malik Mumtaz Ahmed and others v. Mst. Umtul Habib and others PLD 1955 FC 178 and Wall and others v. Manak Ali and others PLD 1965 SC 651.

5. After hearing the learned counsel for the appellant, I am not inclined to interfere. Following being the reasons:-- (i) A glance at the application for setting aside ex parte judgment and decree, moved on 31-10-2003, clearly shows that the present appellant deliberately avoided his date of knowledge of the ex parte judgment and decree. Also no occasion was mentioned as to how and when the appellant was put to an inquiry qua the judgment and decree passed against him. (ii) The impugned order of the learned trial Court, dated 2-1-2004, the operative part where6f has been reproduced above, has given all details of the attempts made by him to ensure service of the present appellant. The assertion of non-service of the process or a wrong report by the Process Serving Agency is neither here nor there. Learned trial Court used all three modes to serve the defendant/present appellant. On the exercising of the three modes; personal service, service through affixation and service through publication, it was simply not possible that the present appellant remained ignorant of the pending proceedings against him. Therefore, the present respondent/judgment-debtor rightly pointed out in his reply that the present appellant was doing his business in the Depalpur Bazar and it was not possible that he could not get the wind of pending proceedings. (iii) The learned trial Court rightly considered the postal certificate of dispatch of proclamation in daily "Insaaf", dated 2-10-2003 to be a factor weighing heavily against the petitioner/present appellant qua his request for setting aside ex parte decree. (iv) It is correct that the Courts have always leaned towards adjudication of lis on merits, yet it is equally correct that a party to the proceedings cannot be allowed to circumvent the process of justice by avoiding appearance before the Court and to standby to watch the proceedings. (v) In the backdrop of the aforementioned peculiar facts, the ratio settled in the aforementioned judgments of the Honourable Supreme Court is clearly distinguishable.

6. Appeal rejected. H.S.T./M-615/L Appeal dismissed.