P L D 1994 Lahore 274 (PLP)

This petition under Article 199 of the Constitution was against an order of the learned District Judge, Bhakkar dated 20‑9‑1993, by which; an order of the learned trial Court, dated 23‑5‑1993 setting aside the ex parte judgment and decree, dated 3‑12‑1981 for trial of the suit on merits was affirmed.

2. Moondana was owner of some land in village Daggar Kotli of Tehsil Mankera of District Bhakkar. Learned counsel submitted that Moondana was owner of 24 Kanals and 14 Marlas of land only. He died in the year 1975. He was survived by his widow Mst. Moondan two sons namely Ghulam Rasool, Makhna, three daughters namely, Mst. Amiran, Mst. Waziran and Mst. Bhakho. By Mutation No.3265 sanctioned on 28‑1‑1976 the land owned by Moondana was distributed among his surviving heirs in accordance with Sharie shares. .

3. In or about the year 1980, Makhna and Ghulam Rasool brought a civil suit for declaration and perpetual injunction against Mst. Moondan and Mst. Bhakho for claiming their exclusion from the inheritance mutation sanctioned in their favour on 28‑1‑1976. It was averred that Mst. Moondan was not the widow of Moondana and Mst. Bhakho was not his real daughter. Both were stated to have misrepresented their relationship to him for claiming of a share from his legacy. The defendants in the suit were served through substituted service by publication in the Press. Since they did not appear at the trial, they were proceeded against ex parte. Upon strength of ex parte proof gathered in their absence, the trial Court felt satisfied of it, and decreed the suit ex parte against them on 3‑12‑1981. Thus, the mother and the daughter were excluded from the field.

4. Upon gaining knowledge of the ex parte decree against them on 20‑7‑1989, the defendants applied to the Court for setting aside of the ex parte decree against them. It was asserted that they were not served in the suit, and the ex parte decree was procured from the Court on the basis of fake reports for service of summons upon them. It was further asserted that their addresses given in the plaint were incorrect, and being illiterate village women, they did not read the newspaper containing the Notice from Court. Petitioners resisted the application. The trial of the application gave rise to as many as five issues, including that of relief. Both the parties gave evidence for and against their respective versions. Upon review of the record, the trial Court found that the defendants were not duly served in the suit; they had no knowledge of the proceedings taken in the suit against them, and therefore, the ex parte decree passed against them deserved to be set aside for trial of the suit on merits in their presence. On revision, the decision made by trial Court was maintained. Thereupon, this petition in Constitutional jurisdiction was filed.

5. I have heard the learned counsel at length. With his assistance, existing record was also examined. Copy of the plaint in the suit filed by petitioners for the relief, of declaration and perpetual injunction was not filed. It could have assisted for discovering the addresses of the defendants given in the plaint for service of summons upon them. Furthermore, the reports made by the process‑servers on the summons issued for service were also not made part of the record. It was a common ground that defendants were not personally served in the suit, and a substituted mode of service was adopted by the Court for effecting service upon them. It was not denied that Mst. Moondan and Mst. Bhakho were illiterate village women. From the record, was found by the lower Courts that the addresses of defendants in the plaint for service of summons upon them were not correct. Therefore, service by a substituted mode through publication in the Press was not justified. There was no material to suggest that the publication of notice in the Press ever reached the defendants, or they ever knew of it. In face of a clear denial of service of summons by the defendants on oath, presumption of due service through publication of notice in the Press was effectively dislodged. The learned Courts below, therefore, rightly set aside the ex parte judgment and decree against the defendants for allowing them a fair opportunity of defence in the suit filed against them by petitioners. Impugned orders were not only just, but were perfectly legal also. Those tended to advance the cause of justice and promoted its purpose also. Therefore, it shall be clearly inequitable to interfere to upset the orders which gave a fair chance to the illiterate village women for defending their legal status in the land distributed to them in inheritance mutation sanctioned on the demise of Moondana. In consequence, the writ petition fails in limine. AA./G‑196/L Petition dismissed.