2026 PLP 1316 (YLR)

Rasaal Hasan Syed, J.

This civil revision petition is directed against orders dated 12.12.2013 and 10.11.2015 of the courts below whereby application for setting aside of ex parte decree was declined and appeal thereagainst could not succeed.

2. Respondent/plaintiff filed a suit for specific performance to enforce the agreement of sale purportedly executed on 10.9.2008. The petitioner/defendant was not served personally in the proceedings of suit by any summons or registered post instead he was proceeded against ex parte on the basis of publication in Daily Pakistan and the suit was decreed on the basis of ex parte evidence on 08.10.2011. On acquiring knowledge of decree the petitioner filed an application for setting aside the ex parte decree dated 08.10.2011 which was contested by the respondent, issues were framed whereafter evidence was recorded and ultimately the application was dismissed vide order dated 12.12.2013. Appeal against the said order was also dismissed by learned Addl. District Judge vide order dated 10.11.2015. These orders are under challenge in this revision petition.

3. Main arguments on behalf of petitioner were that the order was violative of rule of natural justice; that the ex parte decree was passed without personal service in the suit; that the decree was violative of the rule of due process; that the agreement claimed was a forged and fictitious document and that no agreement was ever executed by the petitioner in favour of respondent nor any payment was received and further that the decree was obtained fraudulently by fabricating false report of process server who had never visited at the address of petitioner nor ever contacted for service of any summons and had prepared false report which was legally inadmissible. Contrariwise it was argued that the petitioner was duly served in accordance with law and that he had knowledge of the proceedings of suit and that the ex parte decree could not be assailed on the grounds taken in the application.

4. Submissions made by learned counsel have been given due consideration in the light of record of the case including oral and documentary evidence produced by the parties respectively. It is discernible therefrom that the respondent instituted a suit for specific performance of agreement to sell dated 10.9.2008 claiming therein that in terms of the agreement the petitioner had agreed to sell the suit land in a consideration of Rs.5,25,000/- and received Rs.4,75,000/- at the time of agreement while the balance consideration of Rs.50,000/- was to be paid at the time of registration of sale deed for which the date of 01.3.2011 was agreed between the parties and that despite efforts of the respondent the petitioner did not execute the sale deed and, therefore, indulgence of the court was solicited in the suit by the respondent for enforcement of the agreement. It was the case of the respondent that petitioner was attempted to be served in the suit through court process but he was not available and that the summons was allegedly delivered to his son and to his nephew and, thereafter, by publication in Daily Pakistan substituted service of petitioner was effected who did not appear and, in result, after recording evidence the suit was decreed ex parte on 08.10.2011. Petitioner filed an application for setting aside of ex parte proceeding order and ex-parte decree in the suit and claimed that he was not served by any process of the court and that he came to know of ex parte decree in the suit on 20.12.2011 when Imran son of Farzand Ali and Amanat Ali son of Rehmat Ali per chance met the respondent in the kutchery premises where they had gone for personal work when they met the respondent who during conversation claimed that he had filed a suit for specific performance in respect of property of the petitioner in which a decree had been passed in his favour and in execution he was directed to file the draft of sale deed and the next date of hearing in the case was 18.1.2012. Thereafter on the next day the petitioner engaged a counsel and got information of the decree passed against him upon which the petitioner filed the application for setting aside of ex parte proceeding order and ex parte decree.

5. It was claimed that petitioner had never executed any agreement of sale in favour of respondent and that the claim of alleged agreement was false and agreement was forged and fictitious which was never signed by the petitioner and that no process server had ever approached him for service of any summons of the court in the suit and that the respondents allegedly obtained service report in collusion with process server which was false and that petitioner never received any process of the court or newspaper on the basis of which he was proceeded against ex parte and that the suit against him was liable to be dismissed which the respondent knew, as such, he on the basis of collusive reports and false and forged document obtained the decree which was liable to be set aside.

6. The application was contested by the respondent who claimed that the petitioner had knowledge of the suit against him, he had no cause of action, summons was duly served upon the petitioner through son and nephew and that the reports were correctly made by process server and that there was no sufficient cause for setting aside the ex parte order and decree. Issues were framed and evidence was recorded wherein the petitioner produced Imran as AW1 and himself appeared as AW2 and also produced Zulfiqar Ahmad as AW3 and Muhammad Umar Hayat as AW

4. Respondent himself appeared as RW1 and produced Azeemullah process server as RW

2. On the completion of trial the learned Civil Judge dismissed the application of the petitioner vide order dated 12.12.2013 which order was affirmed in appeal vide order dated 10.11.2015 by learned Addl. District Judge, Chunian (Kasur).

7. On due examination of the orders of the courts below and record of the case it is observed that the same were passed without considering the real question and in fact they proceeded on irrelevant consideration for dismissing the application for setting aside of ex parte decree. The real question in the matter was as to whether petitioner was ever served personally in the suit and if so its effect. The perusal of file proves that no summons was ever served directly and personally on the petitioner either through process server or by registered post A.D. It is admitted position that process server never met the petitioner nor claimed to have reported avoidance receive the process. Rather reports were to the effect that the petitioner was never found at the place and that allegedly one Imran and Amanat were delivered the summons by the process server. Deeper analysis of reports and statements of process server shows that no service in accordance with Order V, C.P.C. was ever effected. Rule 10 of Order V, C.P.C. provides that service of summons shall be made by delivering a copy of the summons signed by the Judge with Seal of the Court, personally, to the individual who is required to be served. Rule 10-A of Order V, C.P.C. provides that simultaneously with the issuance of summons under Rule 9 of Order V, C.P.C. there shall be sent a notice through registered post A. D. and that the acknowledgement of summons purported to be signed by defendant on the receipt of registered communication or endorsement by postal employee that the defendant refused to take delivery of the same shall be deemed by the court to be prima facie proof of service of summons. Rule 17 of Order V, C.P.C. mandates that if the defendant or his agent refused to sign the acknowledgment or where the serving officer, after using of due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept such service the serving officer shall affix a copy of summons at the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and shall return the original to the court from which it was issued with a report enclosed stating that he has so affixed the copy, the circumstances under which he did so and name and address of persons by whom the house was identified and in whose presence the copy was affixed. Rule 18 of Order V, C.P.C. requires that serving officer shall, in all cases in which summons were served under Rule 16 of Order V, C.P.C., endorse or annex a return stating the time and manner in which the summons was served and the name and address of person identifying the person served and witnessing the delivery or tender of summons. Rule 19 of Order V, C.P.C. provides that where summons is returned under Rule 17 of Order V, C.P.C. the court shall, if the return under the rule had not been verified by the affidavit of serving officer or if it had so been verified, examine the serving officer on oath or cause him to be so examined by another court touching his proceedings and may make such further inquiry in the matter as thought fit and shall either declare that the summons was duly served or order of such service thought fit.

8. In the first instance admittedly no summons was ever alleged to have been delivered to the petitioner or ever presented for service on him. The evidence on record including statement of RW2, process server, showed that he had never met the petitioner for delivery of summons or process of court and that at the time of reports he never claimed to have met the petitioner nor did he report that petitioner was deliberately avoiding service. In these circumstances there was no justification for process server to deliver the summons to any other person who was not the addressee of summons. The other part of the question is about the alleged delivery of summons to Imran and Amanat claimed to be nephew and son of petitioner. The evidence on record could not prove any delivery of summons to these persons, reason being that the process server admitted in his cross-examination that he had not written witnesses identity card number on the report qua these persons nor had he obtained any thumb-impression and that the name of these persons could have been written by anyone. In these circumstances delivery of summons even upon these two persons could not be assumed.

9. The other aspect of the matter is that Muhammad Imran appeared as AW1 and deposed that he had not received the summons nor the process server ever met him while the witness was not confronted with the report on which alleged service of summons was recorded. As regards Amanat Ali the petitioner in his deposition did not accept that he had ever received any process of the court. It was, therefore, incumbent upon the respondent to produce him as a witness if in his view the summons was received by Amanat Ali as duty to prove service by positive evidence was upon the respondent who did not produce him and, therefore, the presumption would be against him. Even otherwise the trial court did not rely on the reports of process server about the alleged delivery of summons to either Imran Ali or Amanat Ali and proceeded to order issuance of summons by the process server upon the petitioner and, thereafter, despite the report that the petitioner was not available at the house order for publication was passed. The question will be whether such a course was admissible particularly when there was no report of refusal or avoidance to receive the summons and, therefore, the order of alleged service through publication was illegal. Reference can be made to Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq (1985 SCMR 1228) where it was observed to the effect that the court while ordering substituted service on the defendant had to form opinion that the defendant was keeping out of way for the purpose of avoiding service and that there is material on record to show that the court could form such opinion and that if the ordinary ways of service of summons were not resorted to in the lawful manner, irregular service could not be treated as due service. In the present case the record shows that there was no report of process server that petitioner was avoiding service and had refused to accept service in the presence of witnesses nor the report was verified properly nor it gives the time at which process server had visited the site for service. The report indicated lack of due diligence and reasonable efforts to obtain service and gave the impression of casual exercise of duties by the process server who claimed to have visited the defendant s house and delivered the summons to a person without verification as to whether he had any relationship with the addressee and whether he lived there or was competent to receive the summons. Neither the thumb-impression of the alleged recipient was obtained nor his CNIC number was recorded in the report. Being inadmissible report, the court could not proceed to pass an order for publication by substituted mode as there was neither any report of avoidance or denial from the receipt of summons. In view of the rule in the cases supra the whole exercise was unlawful and the decree was liable to be set aside. Reference can also be made to the rule in case of Muhammad Inayat v. Additional District Judge Phalia and 2 others (2012 MLD 1605) and Muhammad Hussain v. Rana Sohail Anjum and others (2022 CLC 1529).

10. The courts below did not consider the real question in the case in accordance with law and the rule on the subject referred supra and, being so, the impugned orders are illegal, suffering from serious error of law and jurisdiction, which are liable to be annulled and are, accordingly, declared as such.

11. For the reasons supra the revision petition is allowed and the impugned order dated 12.12.2013 passed by Civil Judge, Chunian and order dated 10.11.2015 of learned Addl. District Judge, Chunian (Kasur) are set aside and, in consequence thereof, application filed by petitioner for setting aside of ex parte proceedings order and ex parte decree is accepted. The main case shall be deemed to be pending which shall be decided by the trial court on its own merits in accordance with law after giving opportunity to the petitioner to file written statement and evidence of both parties. JK/M-10/L Petition allowed.