2021 PLP 2119 (CLC)

AHMAD NADEEM ARSHAD, J.

Brief facts, necessary for disposal of this petition, are that one Muhammad Din, who was owner of property measuring 06 Marla, 75 square feet consisting of 05 shops and Veranda bearing Khasra No. 782/239, khata No. 326/1306, situated in Mouza Pindi Rajputan, Tehsil Cantt, District Lahore (hereinafter called the suit property), died on 29.08.2004 leaving behind 07 sons and 02 daughters. His inheritance Mutation No.1685 was sanctioned on 16.03.2009. Respondent No.1/plaintiff Hussain Bibi, one of the legal heirs of said Muhammad Din deceased, instituted a suit for possession on the basis of partition and permanent injunction on 31.10.2009 titled as "Hussain Bibi v. Ghulam Muhammad and others" against all the other legal heirs. The petitioners are legal heirs of defendant No.1 Ghulam Muhammad. During the pendency of the suit, plaintiff filed an application under Order I, Rule 10, C.P.C. for impleading the legal heirs of defendant No. 1 by disclosing that he had died, which was allowed by the learned trial court vide order dated 25.02.2010. Amended plaint was filed on the same day and the learned trial Court directed that defendants Nos. 1, 2, 5, 6, 7 and 8 be summoned through publication in newspaper 'Daily Din' and the remaining defendants Nos.3 and 4 be served through TCS for 22.03.2010. Thereafter, the case was adjourned to 19.04.2010, 30.04.2010, 03.05.2010, 05.06.2010 and 08.07.2010 awaiting citation in the newspaper. On 08.07.2010, after publication of proclamation in the newspaper, ex parte proceedings were initiated against defendants Nos.1, 2, 5, 6, 7 and

8. Thereafter, respondents Nos.3 and 4 were also summoned through citation in the newspaper and after publication of citation, the learned trial Court proceeded against defendants Nos.3 and 4 ex parte on 24.01.2011 and after recording exparte evidence of respondent No. 1/plaintiff, passed a preliminary decree on 09.05.2012 and on the same day also appointed Mian Makshoof Ahmad Advocate as local commission to devise various modes of partition of the suit property with the observation if the local commission was of the opinion that suit property was not physically partitionable, then to determine its market value for the purpose of determining stamp duty and to assess the reserve price. The local commission submitted his report on 31.01.2013, according to which, the suit property was not physically partitionable and he suggested for its sale. In the light of said report, the Court decided to auction the suit property vide order, dated 04.02.2013 and prepared Schedule for auction and fixed 03.04.2013 for auction. However, before that date, petitioners moved an application for setting aside ex-parte preliminary decree which was dismissed by the learned trial Court vide order dated 23.07.2013. After dismissal of application for setting aside ex-parte preliminary decree, the learned trial Court again issued Schedule for auction on 23.07.2013. Thereafter, schedule for auction was issued on 15.01.2014, 06.05.2014, 26.07.2014, 30.09.2014, 23.01.2015, 30.03.2015, 05.06.2015 but the auction could not materialize. Learned trial Court while keeping in view the provision of section 10 of the Punjab Partition of Immovable Property Act, 2012, decided to conduct the internal auction of property and vide order, dated 16.01.2016, fixed 18.02.2016 for internal auction in the court-room at 10:00 am. On the said date, no one appeared on behalf of the parties and the learned trial Court decided to proceed for public auction and in this regard issued a schedule for auction on 18.02.2016. In the light of schedule, auction was conducted on 20.03.2016 and report of auction was submitted on 24.03.2016. Separate applications under Order XXI, Rule 89, C.P.C. and Order XXI, Rule 90, C.P.C. were filed on behalf of some of the respondents which were dismissed on 02.09.2016 and auction/sale in favour of respondent No.12 was confirmed on 09.12.2016.

2. The petitioners, after getting the knowledge that their inherited property was put to auction/sale in the light of ex-parte preliminary decree, moved an application under section 12(2), C.P.C. on 18.03.2013 for setting-aside the exparte preliminary decree dated 09.05.2012. Written reply was called upon which was filed on 05.04.2013 and after hearing the arguments, the learned trial Court dismissed the same vide order dated 23.07.2013. Feeling aggrieved, the petitioners filed a revision petition which was accepted on 06.01.2017, on the conceding statements of respondents Nos. 1, 2, 5, 7, 8, 9 and 10-A to 10-H. After dismissal of the application for setting aside of ex-parte preliminary decree and during the pendency of civil revision, which was filed against that order, property was again put to auction and it was auctioned on 20.03.2016 and respondent No. 12 was declared the highest bidder, and thereafter auction was confirmed in his favour. Therefore, when the auction purchaser came to know about the revisional Court's order dated 06.01.2017 whereby the preliminary decree dated 09.05.2012 was set-aside, he filed an application under section 12(2), C.P.C. against the said order on the ground that he is successful bidder/auction purchaser of the suit property and this fact was concealed from the Court while getting allowed the revision petition on the conceding statements of the respondents. The application under section 12(2), C.P.C., of respondent No.12 was allowed vide order dated 22.03.2018 on the ground that he was not impleaded in the revision petition and in this way concealed the material facts before the revisional Court and while setting aside the order dated 06.01.2017, restored the main revision petition filed by the petitioners with the observation that their civil revision be decided again after impleading respondent No. 12 as a party. Ultimately the revision petition of the petitioners was dismissed vide order dated 06.11.2019 against which the instant writ petition has been filed.

3. Learned counsel for the petitioners submits that respondent No.1 instituted a suit against a dead person as their predecessor, namely, Ghulam Muhammad died on 07.06.2003; that summon/notice of suit was not issued in the name of the petitioners/legal heirs of defendant No.1; that without complying with the condition as contemplated under Order V, Rule 20, C.P.C. the learned trial Court directly summoned the petitioners through publication in the newspaper; that neither the newspaper was sent at the address of the petitioners nor it was received to them and they remained unaware regarding pendency of the suit; that the learned trial Court proceeded against ex parte on a date which was not the date of hearing as per citation in the newspaper; that the plaintiff got the preliminary decree by misrepresentation and practicing fraud with the Court; that the learned trial Court while dismissing their application under section 12(2), C.P.C. and the learned revisional Court while dismissing their revision petition, failed to consider all these facts; that the learned trial Court badly failed to consider that fraud and mis-representation cannot be proved without recording of evidence but the learned lower Court dismissed their application summarily without framing of issues and recording of evidence.

4. On 20.08.2020, respondents Nos.1, 5 and 7, got recorded their statement to the effect that they have no objection against acceptance of this writ petition. Likewise, respondents Nos.1 to 11 filed conceding written reply on 23.11.2020. In this way, respondent No.12 is the only contestant.

5. Learned counsel representing respondent No. 12 submits that both the lower Courts have passed orders in accordance with law and facts; that suit for partition was filed on 31.10.2009 whereas preliminary decree was passed on 09.05.2012 while final decree was passed on 04.02.2013 meaning thereby that final decree was passed after more than 3 years of the filing of the suit; that since all the parties are close relatives and it is not believable that they remained ignorant regarding pendency of the suit for such a long time; that in the execution proceedings schedule for auction was prepared and approved for so many times and after an open auction, the suit property was auctioned and purchased by respondent No. 12 against which objection petitions were filed which were dismissed on 02.09.2016 and auction was confirmed in the name of respondent No. 12 on 09.12.2016 and sale certificate was also issued hence no illegality was committed by the courts below while passing the impugned orders; that the predecessor of the petitioners was alive at the time of preliminary decree, hence, petitioners' step into the shoes of their predecessor; that no fraud or mis-representation was committed by the respondent, hence, the ingredients of section 12(2), C.P.C. were not attracted in this matter; that since the petitioners themselves participated in the auction proceedings, they were estopped to challenge the auction proceedings and preliminary decree and that the writ petition being not maintainable is liable to be dismissed. To fortify his arguments, he placed reliance on cases titled "Muhammad Ibrahim and another v. Muhamamd Ismail and 4 others" (2003 YLR 1903) and "Muslim Commercial Bank through Branchy Manager/General Attorney v. Fashion Prider (Private) Ltd. (2016 CLD 124).

6. I have heard the submissions made by both the learned counsel for the parties and have also gone through the file with their able assistance.

7. Before touching the merits of case, it is made clear that this Court is not deciding any question regarding auction proceedings, its result, sale/auction of the property, confirmation of sale, issuance of sale certificate etc. The only points for determination before this Court are that whether ex-parte preliminary decree was passed in accordance with law and whether the impugned orders have been passed in accordance with law or not. Admittedly, the suit was filed on 31.10.2009 by impleading predecessor of the petitioners as defendant No.1. The petitioners produced copy of death certificate of Ghulam Muhammad son of Muhammad Din which was not denied by any of the party. From perusal of the death certificate, which was issued by the Secretary Union Council No.123, Liaqatabad, Nishter Colony Lahore, it appears that Ghulam Muhammad son of Muhammad Din died on 07.06.2003 and factum of his death was reported on 23.06.2003 only after sixteen days of his death. This fact shows that when the suit was instituted, defendant No. 1 Ghulam Muhammad was not alive and the suit was instituted against a dead person thus the same was defective in nature. Admittedly, the suit was filed by real sister of defendant No.1 and it cannot be believed that she remained unaware of the death of her brother for such a long period of six years. It clearly suggests that suit was deliberately filed against a dead person for some ulterior motive.

8. After institution of the suit, summons/ notices were issued in the name of defendants. On the summons, issued for the service of defendants for 18.01.2010, the Process Server made the following report:- Thereafter, the trial court again issued summons for 29.01.2010 and upon those summons following report of the Process Server is available:- The learned trial Court without getting the correct addresses of the defendants, vide order dated 29.01.2010, summoned the defendants Nos. 1, 5, 6, 7 and 8 through publication in the newspaper "Daily Din" for 15.02.2010. In this way, the defendants, who were not residing at the given addresses, were summoned through citation in the newspaper without verifying their exact addresses. On 25.02.2010 the plaintiff moved an application under Order I, Rule 10, C.P.C. to implead the legal heirs of defendant No.1/Ghulam Muhammad (deceased) which was allowed on the same day and defendants Nos.1-A to 1-H were impleaded as party in the suit. The respondent No.1 submitted amended plaint on the same day i.e. 25.02.2010 and the learned trial Court on the same day i.e. 25.02.2010 at 12.30 p.m. again ordered that the defendants Nos.1, 5, 6, 7 and 8 be summoned through publication in the newspaper "Daily Din" and regarding remaining defendants Nos.2 to 4 notices/summons be issued through TCS for 22.03.2010. From perusal of this order, it appears that in-spite of this fact, the legal heirs of defendant No. 1 Ghulam Muhammad were impleaded and brought on record, the learned trial Court did not bother to summon them and again summoned a dead person i.e. the defendant No. 1 through citation in the newspaper. On 22.03.2010, due to leave of the learned Presiding Officer, the case was adjourned to 19.04.2010. On 19.04.2010 the case was adjourned awaiting publication for 03.05.2010. On 03.05.2010 the case was again adjourned to 05.06.2010 and 08.07.2010. On 08.07.2010 the learned trial Court initiated ex-parte proceedings against the defendants Nos. 1, 2, 5, 6 and 7 on the report of the Court official which is available on the margin of the order sheet that newspaper has been published and attached with the file. It appears from the perusal of order dated 08.07.2010 that the learned trial Court did not pass an order of exparte proceedings against the legal heirs of defendant No. 1 inspite of their impleadment and proceeded exparte against the defendant No. 1 who was not alive at that time.

9. Considering from another angle, a cursory glance of advertisement published in "Daily Din Lahore", brings it to limelight that the defendants were summoned for 03.05.2010 but as discussed above, on that date exparte proceedings were not initiated against them. Although, in that citation the names of petitioners were mentioned, but ex-parte proceedings were never initiated against them. The addresses of the petitioners were not correctly mentioned in the plaint, summons and as well as in the newspaper. The addresses of the defendant No. 1 and his legal heirs were described as "Main Bazar, Mohallah Liaqat Abad, Kot Lakhpat, Lahore" and the summons, through registered post and citation in the newspaper were also issued on the said address despite the fact that the petitioners are resident of "Ibrahim Street Badwan, Kot Lakhpat, Lahore."

10. The petitioners/legal heirs of defendant No.1 in their application inter alia took the plea that firstly, the suit was instituted against their predecessor Ghulam Muhammad who was not alive at the time of institution of the suit; secondly, his wrong address was mentioned in the plaint as well as summons/notices; thirdly, after impleading the legal heirs of defendant No.1 no summons/ notices were issued in their names and without complying with the procedure as laid down in Order V, C.P.C. regarding service of summons and notices, substituted procedure of service was adopted and petitioners were directly summoned through publication in the newspaper by giving their wrong address; fourthly, the newspaper was not sent at their correct addresses and if sent, the same was sent on a wrong address; fifthly, the newspaper published for summoning of the defendants for 03.05.2010 but ex parte proceedings were initiated against them on 08.07.2010 and admittedly for such date, no notices/summons or citation was published.

11. For summoning of the defendants, a complete procedure has been described in Order V, C.P.C. but the learned trial Court, without adopting the proper procedure, as described in Order V, C.P.C. straightaway ordered the substituted service for publication of citation in the newspaper. When a suit is instituted, the Court calls upon the defendant to appear and answer the claim of the plaintiff and in this regard, Court issue summons in the name of the defendant. The purpose of summoning the defendant is to provide him proper opportunity of hearing and it is based upon the universally acknowledged maxim "audi alteram partem". It is inalienable right of every party to have a fair and ample opportunity to plead and defend his cause. Before passing any adverse order against a party, his due service is necessary. Due service is the fundamental right of a person and in order to ensure due service, there should be substantial compliance with the provisions relating to service of summons and it is not merely a formality but a matter of such importance that Courts are obliged while deciding the service to be sufficient, must be satisfied that all requirements of law have been strictly complied with. The procedure of issuance of summons is provided in Order V, Rule 1, C.P.C., and the main object is that defendant should have notice of case against him. The process of service of summons, mentioned in Order V, Rule 9 and Rule 10-A of that order describes the service by post. Rule 17 of Order V, C.P.C. states the procedure when defendant refuses to accept service or cannot be found, in that eventuality the Process Server affixes a copy of summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. Order V, Rule 20, C.P.C. empowers the Court to affect service upon the defendant through substituted means subject to the condition that Court should have satisfied itself that defendant was keeping him away to avoid service or his service could not be affected through ordinary way. This provision of law empowers the Court to adopt substituted modes of service including affixation of a copy of the summons at some conspicuous part of the defendant's house or at the beat of drum in the locality where he resides or publication in the press or any other manner or mode as it may think. For ready reference Order V, Rule 20 of C.P.C. is reproduced as under: - "

20. Substituted service.-(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by- (a) Affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or (b) Any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television, or (c) Urgent mail service or public courier services, or (d) Beat the drum in the locality where the defendant reside; or (e) Publication in press; or (f) Any other manner or mode as it may thing fit; Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously. Effect of substituted service.-(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Where service substituted time for appearance to be fixed.-(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require,[which shall not ordinarily exceed fifteen days]" Substituted process is in the nature of a proceeding of last resort and cannot be opted for except when all procedural requirements have been met and the pre-conditions for a substituted service as required by Code of Civil Procedure, 1908 may not be strictly made applicable i.e., the defendant cannot be served personally or by post or he is avoiding service. There is no cavil with the proposition that unless all efforts to effect service in the ordinary manner are verified to have failed substituted service cannot be resorted. If the validity of the impugned orders is adjudged on the touchstone of the afore-referred provision there leaves no ambiguity that order, dated 25.02.2010, does not demonstrate that the trial Court satisfied itself that defendants had been avoiding their service and while over throwing these provisions jumped to publication in the newspaper.

12. Order V, Rule 6 of C.P.C. makes it mandatory for the Courts to mention time, date and place in the summons for appearance of the defendant, with sufficient period, enabling them to appear and answer on such date. Language of this provision of law is unambiguous whereby the defendant has to be called upon on a prefixed time, date and place for appearance. For the sake of convenience Order V, Rule 6 of C.P.C. is reproduced as under:-

6. Fixing day for appearance of defendant.-The day for the appearance of the defendant shall be fixed with reference to the current business of the court, the place of residence of the defendant and the time necessary for the service of the summons, and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day." It transpires from the record that publication was made in 'Daily Din Lahore' and that citation in newspaper required the defendants to appear before the Court on 03.05.2010 but the petitioners were not proceeded ex-parte on the said date meaning thereby that no action against them was taken. The matter was adjourned by the learned trial Court for 05.06.2010, 08.07.2010 and on 08.07.2010 without issuing any fresh notices/ summons for 08.07.2010, or without making any fresh publication for 08.07.2010 the learned trial Court proceeded ex parte on the basis of publication made for 03.05.2010 which being grave illegality caused injustice to the petitioners. It is relevant to note that Order IX, Rule 6, C.P.C. authorizes the Court to initiate the ex-parte proceedings and this rule only applies to the date fixed in the summons for hearing of the suit and not to adjourned date of hearing. For better understanding Order IX, Rule 6 of C.P.C. is reproduced as under:- "

6. Procedure when only plaintiff appears.-(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- When summons duly served.-(a) if it is proved that the summons was duly served, the Court may proceed ex-parte [and pass decree without recording evidence]; When summons not duly served.-(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; When summons served, but not in due time.-(c) if it is proved that the summons was swerved on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement." While dilating upon the afore-quoted provision of law the august Supreme Court of Pakistan in the case reported as 'Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies' (PLD 1964 Supreme Court 97) held as under:- "On the other hand, a reference to Order IX, Rules 6 and 8 and Order XVII, Rule 2 will show that the parties to a suit are penalized for their absence only on the date fixed for hearing or the date to which the hearing is adjourned. Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearings. As Rule 1 of Order IX will show, this order states only the procedure of the Court on the date fixed in the summons sent to the defendant. Under rule 6 the defendant is to be proceeded against ex parte only when the summons has been duly served. Order XVII, Rule 2 provides that if a party fails to appear on "the day to which the hearing of the suit is adjourned" the Court may proceed to pass orders in accordance with Order IX, Rule 6 and Order XVII, Rule 2 being the only provisions authorizing ex parte proceedings against a defendant it is clear that exparte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course "adjourned" means adjourned by the Court." Similarly, a learned Division Bench of Hon'ble Balochistan High Court in the matter reported as "Ghulam Nabi v. Mir Muhammad Ali Rind" (2020 YLR 172), clinched the issue under discussion in the following manner:- "

10. Record transpires that publication was made in Daily Intekhab Hub for the date of 23.04.2012 but the appellant was not proceeded against ex-parte on the said date and the matter was adjourned by the trial court for 27.04.2012. Without issuing any notice the appellant for 27.04.2012 and without making any publication for 27.04.2012, the appellant was proceeded ex-parte by the trial Court on the basis of publication made for the date of 23.04.2012 which is a grave illegality."

13. The file is absolutely bereft of proof as to whether newspaper reflecting citation for appearance of the defendants was dispatched through post to them. Likewise, respondent No.12 failed to prove that petitioners were aware of the pendency of the suit. The learned revisional Court while dismissing the revision petition, declared that the final decree was passed but after perusing the complete order sheet it appears that no final decree was ever passed.

14. Now coming to the case-law referred by the learned counsel for respondent No.12, I am of the view that the same is inapplicable to the facts and circumstances of the present case for the reason that in the case reported as 2003 YLR 1903 this Court held that order of sale of property in a suit for partition is deemed to be a decree and against which regular first appeal is competent which is not the position in the case in hand. Likewise, in 2016 CLD 124 the question of confirmation of a sale was resolved, hence, not helpful to respondent No.12.

15. Keeping in view all the facts and circumstances of the case, I have reached to the conclusion that the order dated 08.07.2010, through which the exparte proceedings were initiated, is bad in the eye of law and on the basis of it, ex-parte preliminary decree dated 09.05.2012 was passed, is also without jurisdiction, therefore, the impugned order dated 23.07.2013 through which application under Section 12(2), C.P.C. was dismissed and the order dated 06.11.2019, through which the revision petition filed by the petitioners was dismissed, are set-aside. Resultantly, while allowing this writ petition the application under section 12(2), C.P.C. is accepted and ex-parte preliminary decree passed by the learned trial Court vide order dated 09.05.2012 is hereby set-aside. In consequence of it, the suit instituted by respondent No.1/plaintiff will be deemed to be pending before the learned trial Court, which shall proceed with the same afresh after summoning all the defendants and getting their written statements. ZH/A-78/L Case remanded.