Substituted Service

Petitioner / plaintiff filed suit for specific performance of agreement to sell and Trial Court proceeded ex-parte against respondent / defendant

Lower Appellate Court in exercise of revisional jurisdiction set aside the order on the ground that substituted service was not properly issued

Validity

Implementation of substituted service requires adherence to strict procedural requirements

Substituted service serves as an essential tool in ensuring effective communication within the legal system, as it enables progress of legal proceedings even when personal service is not possible ensuring that parties are duly informed and given an opportunity to respond

By utilizing substituted service, legal system strives to uphold principles of fairness, transparency and access to justice

Before resorting to manner of service provided under O.V, R.17, C.P.C., the Court should observe requirements regarding personal service of defendant, failing which rest of the exercise in such respect should not be considered as lawful

High Court declined to interfere in order passed by Lower Appellate Court in exercise of revisional jurisdiction as it had rightly invoked provision of O.IX, C.P.C., for providing opportunity of hearing to respondent / defendant

No prejudice was caused to petitioner / plaintiff as civil revision was pending adjudication before Lower Appellate Court

Writ of certiorari could only be issued when fora below had flagrantly disregarded law or acted against provisions of law

Constitutional petition was dismissed, in circumstances.

After receipts of registered post A.D. were presented the Trial Court ordered publication in the newspaper on the basis that he (defendant) could not be served through summons; subsequently ex-parte judgment / decree was passed against the defendant

Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside

Validity

Admittedly, in the present case, the summons issued to the petitioner/defendant was never returned with any report, whereas, though receipts of registered post A.D. were presented but the Trial Court never received back the card of A.D., therefore, the order of the Trial Court that he (petitioner/defendant) could not be served through summons appeared to have been passed in betrayal of mandate of law and it seemed that the Trial Court failed to exercise its jurisdiction in accordance with law

First obligation of the Trial Court was that if it had noticed that the petitioner/ defendant was resident of another district, the safest mode should have been to follow the provisions of O.V, Rr.21 & 23 of the Civil Procedure Code, 1908 ('C.P.C'), which provided that if defendant resides within the jurisdiction of another Court, the summons shall be sent by the Court by which it is issued either by one of its officers or by post to any Court having jurisdiction in the place where the defendant resides

Under R.23 of O. V of the C.P.C., the Court to which summons is sent under R.21 shall, upon receipt thereof, proceed as if it has been issued by such Court and shall then return the summons to the Court of issue, together with the record of its proceedings with regard thereto

Relevant order passed by the Trial Court having been analyzed in the light of said provisions of law, it was observed that while issuing the summons to the petitioner/defendant, those provisions were overlooked by the Trial Court, which upon non-return of summons sent by the issuing Court and non-receipt of A.D. was sine qua non for the service of petitioner/defendant

Failure of the Trial Court to follow the mandate contained in provisions of O. V, Rr. 21 & 23 of the C.P.C. had serious consequences and order for issuing substituted service through publication was nullity in the eyes of law

Provisions of Rr.16, 17 and 18 of O. V of the Civil Procedure Code, 1908, were also ignored by the Trial Court as the said provisions are not illusory and it is bounden duty of the Court to ensure substantial compliance of these provisions before directing substituted service as unless provisions contained in Rr. 16, 17, 18, 21 and 23 are not satisfied, the order for substituted service under O. V, R. 20 of the C.P.C. is nullity in the eyes of law as the Court for the said purpose has to satisfy itself that all the efforts to effect service in the ordinary mode have failed

Non-adherence to the mandatory provisions renders the process of service through publication invalid and edifice built upon it automatically falls down

Adherence and observance to these provisions is mandatory as due service is the first fundamental right of every litigant, who is to defend his cause before the court of law, therefore, it is not only a formality but a matter of importance that the provisions are duly complied with

District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O. V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential

High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree

Constitutional petition filed by the defendant was allowed, in circumstances.

Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside on the basis that the substituted service was as effective as personal service and the Court might on the failure of defendant to appear when the suit was called for hearing proceed with the hearing of the suit ex-parte as substituted service had always been equated with that of due service

Validity

District Court failed to advert that the effectiveness of service could only be presumed authentic if either record or order reflected that the provisions of O.V of the Civil Procedure Code, 1908, in relation to service of summons or through registered A.D. had been duly complied with

Remedy of substituted service could be resorted to only if the court was satisfied that there was a reason to believe that the other side was shying out only to avoid the service

District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O.V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential

High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree

Constitutional petition filed by the defendant was allowed, in circumstances.

Legislature has conferred a wide ranging freedom of choice and options under Order V, Rule 20, C.P.C. as to how the substituted service is to be effected to ensure service quickly and efficiently if the notice/summons could not be served personally at the given address or at the address which is given or known

However, the remedy of substituted service can be resorted to only if the Court is satisfied that there is reason to believe that the other side is keeping out of the way only to avoid service.

Trial Court as well as the appellate court dismissed petitioner's application for setting aside ex parte judgment and decree by simply observing that application had been filed willfully to disturb the execution proceedings

Question whether service was actually effected or respondents were aware of the said proceedings were substantial in nature and the Court was under duty to decide such question after recording of pro and contra evidence

Ex parte decrees were passed on the basis of defective service

Same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective and meaningless as final order/ judgment on defective foundation is liable to be set aside

Substituted service by way of publication is only presumed to be personal service which presumption is rebuttable

Substituted service could not be resorted to unless all efforts to effect service in the ordinary manner were verified to have failed

In the present case prior to publication in the newspaper, neither the available modes of service were exhausted nor was there a verification that the modes of service so used had failed

Impugned orders passed by Courts below, were set aside and petitioner's application for setting aside judgment and decree was allowed

Revision petition was allowed, in circumstances.

Plaintiff filed a suit to recover a certain amount based on a cheque under O. XXXVII of the Civil Procedure Code (C.P.C.)

Defendant appeared and applied for leave to defend the suit, but the application was dismissed as it was considered time-barred

Validity

Process server's report indicated that the defendant had refused to receive the notice, leading to the notice being served by affixing it

Trial Court ordered substitute service of the defendant through publication in a newspaper

After the publication, the defendant appeared and filed an application, but it was dismissed

Trial Court had failed to follow proper procedures outlined in the C.P.C.

Process server had not provided the necessary details about the person who identified the defendant's house during the affixation

Additionally, the Trial Court had not followed the prescribed procedure for substituted mode of service

Publication made by the Trial Court violated relevant rules, rendering the order unsustainable

Civil revision was allowed.

Process Server was bound to indicate in his report that the petitioner/his agent refused to sign the acknowledgment and he could not find the defendant or his agent and then he had affixed a copy of the summons on the conspicuous part of the house where the defendant was residing

In such case Court had to examine the Serving Officer on oath touching his proceedings and had to pass an order as to whether summons had been duly served or was to direct fresh service

Before passing of an order of substituted service, the Court was bound to record its satisfaction to the effect that there was reason to believe that the defendant was avoiding service and thereafter the court had to order the service of summons through substituted modes in terms of R.20 of O.V, Civil Procedure Code

After the court satisfied itself that it was a case for substituted service, it should order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house

High Court observed that service through publication in the newspaper should not be resorted to unless the Court is satisfied that the defendant had been properly served and he was avoiding service for reasons best known to him.

Before resorting to provision of substituted service provided under O.V, R.20 C.P.C., it is incumbent upon Court to ensure compliance of O.V, Rr.16, 18 & 19, C.P.C.

Substituted service was in the nature of a proceeding of last resort and could not be opted for except when all procedural requirements had been met and the pre-conditions for a substituted service as required by Civil Procedure Code, 1908 might not be strictly made applicable

Unless all efforts to effect service in the ordinary manner were verified to have failed substituted service could not be resorted.

Appellant was aggrieved of the order of the Trial Court whereby his application for setting aside of ex-parte decree was dismissed

Respondent had filed a suit for recovery of damages which in early round of litigation was remanded by High Court to the Trial Court whereby it was registered and notices were issued to the parties for appearance

Respondent appeared before the Trial Court, whereas appellant remained absent

Trial Court directed the respondent to submit publication on 23.04.2012 but he submitted the same on 24.04.2012

Court had power to adopt procedure of substituted service only when all efforts to effect the service upon the defendant in the ordinary course were exhausted

No report of the process server was available as to whether summons were served or unserved upon the appellant

Trial Court had not ordered for affixation of the notice at the outer door of the house of appellant or at his business address nor the same was sent through courier service

Trial Court had failed to follow the procedure as provided under R. 20 of O.V, C.P.C. therefore, the publication could not be considered as effective service of notice upon the appellant

Publication was made for the date of 24.04.2012 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

Appellant was proceeded against ex-parte on 27.04.2012 without any publication for 27.04.2012, which was a grave illegality

Appeal was allowed, in circumstances.

Petitioner assailed judgment and decree passed by appellate court whereby appeal was accepted as a consequence of proceedings against the petitioner initiated after he was served only through mode of publication in the newspaper

Validity

Appellate court while admitting the case had issued notice to the petitioner through registered post but the report showed that notices had remained un-served and were affixed at the spot

Petitioner was, thereafter, served through publication

No effort was made by the court to serve the petitioner through ordinary mode

Petitioner was neither shown to be served and proceeded against ex-parte nor the impugned judgment and decree appeared to be an ex-parte judgment

Judgment and decree were set aside and the matter was remanded to the appellate court for decision afresh.

Publication in newspaper should be made when Court was satisfied that defendant was avoiding service or there was some reason to believe that summons could not be served in ordinary manner

Substituted service should be adopted when ordinary modes of service had been exhausted

Applicant was residing abroad and no summons was sent abroad as required under O.V, R.25, C.P.C.

Nothing was on record that the dispatched summons were delivered or tendered within the meaning of O.V, R.10, C.P.C.

No presumption of service did attach to the summons sent by a private courier service

Prior to publication neither available modes of service had been exhausted nor there was a verification that the modes of service so used had failed

Nothing was on record that applicant was aware with regard to the suit

Summons, in the present case, had not been published under the authority of Trial Court and even publication was not in the prescribed form

Applicant had not been served in the case, in circumstances

Ex parte judgment and decree were set aside and suit was restored.

Petitioner/defendant contended that ex parte decree passed against him was liable to be set aside as he was not properly served and he was unaware of the proceedings before the Family Court

Validity

Order V, R. 20 of C.P.C. empowered the Court to adopt procedure of substituted service, when all efforts were made to effect the service upon the defendant in the ordinary course

In the present case, there was nothing on record which could show that the petitioner was avoiding service of summons upon him or he could not be found for any reason

Petitioner could not be said, in the circumstances that he was keeping away for the purpose of avoiding service, or that he could not be found for any reason

Family Court before making order for publication of notice in press, did not order affixation of a copy of summons at some conspicuous part of the house or place of business of the petitioner

Proper procedure was not adopted by the Family Court, therefore, publication of notice in the daily newspaper could not be considered as effectual service of notice upon the petitioner

Petitioner had established that he was unaware about the proceedings before the Court

High Court set aside the judgments and decrees passed by the two courts below by virtue of which the application of the petitioner to set aside ex parte decree was dismissed

Case was remanded to the Family Court for proceedings afresh to the extent of recovery of dowry articles

Constitutional petition was disposed of accordingly.

Plaintiff thereafter got the suit reactivated but no one appeared on behalf of defendants and ex-parte decree was passed

Petition for setting aside of ex-parte decree was moved but same was dismissed being time-barred

Validity

Summonses were issued in the suit filed by the respondent-plaintiff which were served upon the petitioners-defendants

Article 181 of Limitation Act, 1908 was applicable in the present case

Application filed by the petitioners-defendants was not barred by limitation

Nothing was on record with regard to service of summons upon the petitioners after reactivation of the suit

Service through substituted mode was always indirect service and if a party/person appeared before the Court and showed that he had no personal knowledge of filing of the lis then Court should recall the ex-parte proceedings/order

Impugned order was set aside in circumstances

Application moved by the petitioners-defendants was to be deemed to be pending and decided on merits after satisfaction as to whether at the time of reactivation of case notices were served upon the petitioners

Appeal was allowed.

Contention of applicant was that address given in the plaint was wrong due to which he could not be served and ex-parte decree was passed against him

Validity

No effort was made by the Trial Court to effect service of summons after obtaining correct address of defendants

Provisions of O. V, C.P.C. were bypassed before summoning the defendants through substituted service by publication

Trial Court without recording statement of process server had invoked the provisions of O. V, R. 20, C.P.C. which was an irregularity

Ex-parte proceedings and decree, in circumstances, were against law and void ab initio as no notice/summons was issued and served on correct address and through affixation

Whole edifice built on such void order was bound to crumble down

Limitation would not run against void order rather same could be ignored and might not be allowed to stand there-against

Trial Court had mis-read and non-read the record with regard to service of summons and committed an illegality while rendering the impugned order

Applicant did not appear due to wrong address given by the plaintiff

Publication in newspapers could not be termed as "valid service" when judgment debtor-applicant was rustic villager and educated only up to 8th Class and belonged to far-flung area

Plaintiff, in order to seek relief from the court must have furnished proper and correct address of the party against whom he sought such relief

Applicant could not be considered to be well conversant with regard to the newspaper in which publication was issued

Trial Court had not properly appreciated the law on the subject while dismissing the application for setting aside of an ex-parte decree

Whole proceedings with regard to service of summons, ex-parte proceedings and ex-parte decree were declared as void ab initio and were set aside

Case was remanded to the Trial Court for decision afresh with the direction to the plaintiff to file amended plaint by giving correct address of the defendant-applicant

Appeal was allowed in circumstances.

Process server could only affix a copy of summons on the outer door or some conspicuous part of the house in which defendant resided or carried on business when he refused to accept service or where he could not be found despite all due and reasonable diligence

Order of Court for service of summons through affixation was not necessary

Personal service was a rule and substituted service was an exception which might be resorted to in unusual circumstances

Law primarily required personal service to be the best mode of bringing notice to the knowledge of defendant

Nothing was on record that defendants were keeping away in order to avoid service in the ordinary way before substituted service was resorted to

Substituted service was made without satisfying the essential prerequisites for the same

Trial Court did not pass an order to proceed ex parte against the applicants but nonetheless decided the suit ex parte

Impugned order of Trial Court dismissing application for setting aside of ex parte decree was not sustainable which was set aside

Applicants might file an application for leave to appear and defend the suit

Appeal was allowed in circumstances.

Proper address of the defendants was not mentioned in the plaint nor plaintiffs pointed out the whereabouts of the defendants to the Process Server

Defendants were not served due to negligence of plaintiffs

Trial Court instead of compelling the plaintiffs to provide proper address of the defendants ordered substituted service

Substituted service could only be adopted when all efforts to effect service upon the defendants in ordinary course were made but failed

No report or statement of Process Server was on record to the effect that defendants were either avoiding service of summons upon them, or they could not be found for any reason

Non-service of defendants was due to incomplete and wrong address given by the plaintiffs

Trial Court had failed to follow the procedure provided by law before ordering substituted service

Trial Court before making order for publication of notice in press did not order affixation of a copy of summons at some conspicuous part of the house or place of business of defendants

Proper procedure for substituted service had not been adopted by the Trial Court, in circumstances

Appeal was allowed.

Applicant-respondent was required to establish that he was not served or to show the circumstances prevented him from appearing

Court had to examine the maintainability of appeal even if the matter was one of ex parte

Appellate Court should not allow an appeal without examining the legality or illegality of exercise of jurisdiction by the courts below which would not depend upon pointing out of illegalities by appearance of applicant-respondent

Equity would demand a proper notice to rival side before proceeding or hearing with a matter likely to cause any prejudice to rights or interest of such party

Law could not be allowed to be defeated or delayed on tricky moves through which a rival would avoid service of process (summons/notice)

Duly service of summons/ notice which was acknowledged/received by the party himself/herself was not requirement of law

Person sought to be served could not be forced to sign the summons and he/she was only to be communicated the information

Court should satisfy itself before proceeding ex parte that applicant-respondent had knowledge of pending proceeding and date of hearing

Applicant-respondent was required to establish that he was not 'duly served' to succeed in getting an ex parte judgment set aside which would also require to establish the fact of having no knowledge of pending lis (proceedings)

Service effected through substituted service could not be dislodged merely on the plea of applicant-respondent being not a subscriber/reader of the 'newspaper'

Applicant-respondent had knowledge and notice of pendency of appeal who was served through substituted service but he did not appear

No justification existed to seek setting aside of ex parte judgment on plea of not 'duly served'

Active knowledge of pending litigation would amount service of summons (communication of information to interested)

Passing of an ex parte order was not requirement of law in appeal matter

Only requirement of law was the satisfaction of court to the extent of 'well time communication of information of pending lis (duly served) before hearing of appeal

Applicant-respondent had failed to establish that he was not 'duly served' (not having knowledge of pending proceeding)

Application for setting aside ex parte judgment was dismissed, in circumstances.

Plea raised by appellant was that process could not be issued through substituted service without recording of evidence of process server

Validity

When defendant did not reside on address given in the plaint or party was avoiding service- willfully or to prove concept. of acknowledgement of service, the Court had to frame issue and record evidence to decide application under O. XLI, R. 21, C.P.C., which had imposed duty upon the Court to verify the fact as to whether the service was duly effected or defendant was not appearing for any sufficient cause

High Court set aside the order passed by Lower Appellate Court and remanded the matter for decision afresh after framing issue on the question of due service to appellant and after recording of evidence of both the parties

Appeal was allowed accordingly.

Alternate and substitute mode of service was required to be adopted when notices could not be served through ordinary mode of service

Service on agent could be considered effective if it fulfilled the stipulation contained in O.V, R.12, C.P.C.

Service, in the present case, was not properly effected

Trial Court did not adhere to the mandatory provision of law

Limitation would be governed under Art.181 of Limitation Act, 1908 in case of non-service of notice of an adjourned hearing

Limitation would be governed under Art.164 of Limitation Act, 1908 when ex parte order was passed under O.IX, R.6(1)(a), C.P.C.

Appeal filed by the tenant was well within time

Lis between the parties to be adjudicated on merits and no one should be non-suited on the basis of technicalities

Fair opportunity of hearing should be provided to the contesting parties

Law did not permit that dispute be decided on technicalities

Justice could only be done after hearing both the parties to decide the lis on merits alone

Ex parte judgment passed by the Trial Court was set aside and case was remanded for its adjudication on merits after providing fair opportunity of leading evidence to the parties

Appeal was accepted in circumstances.

Service effected through brother of defendant (living in separate house) could not be termed as legal/personal service of defendant

Defendant was to be served in person or through his agent empowered to receive/accept the service

Service might be made through male member of the defendant's family who was residing with him in the same house if he was not found on the given address nor there was any authorized agent

Service effected through servants/"Naukars" who were not family members would be of no value and only male member who was residing in one house would be considered as valid service

Court would get jurisdiction to dispose of the matter once service was effected upon the defendant

Object of service on defendant was to enable him to resist the claim if so desired

Private knowledge of defendant with regard to pendency of proceedings was immaterial

Only empowered agent could accept the summons

Process Server was supposed to gather the exact information so that proper and personal service of the parties could be obtained within time

Presiding Officer was to look into the service effected by the Process Server and inquire about the authenticity and correctness of the same

Electronic devices should be used in order to obtain effective service of the parties

Provisions of O.V, R.15, C.P.C. had been violated in the present case

Substituted service had not been done nor serving official had been examined with regard to refusal to sign the summons on defendant

Substituted service could be termed as due service

Process of service through newspaper had been made but same was in disregard of law as same was made after recording of evidence

Mischief of limitation of 30 days had to be attracted where summons was served personally or from the knowledge

No personal service was effected in the present case nor procedure provided for service under the law had been followed

Ex parte proceedings culminated into ex parte decree had not been passed in line with law

Impugned decree had been passed without discussing the evidence ex parte recorded nor any reason had been assigned in support of such ex parte decree

Lis was to be decided with a reasoned judgment/order instead of deciding the same in a slipshod manner

Judgment/order should be a speaking one and should not be the result of min-reading or non-reading of available record

Trial Court had not discussed in the judgment/order with regard to the documents relied by the plaintiff

Impugned judgment/order was result of non-reading and misreading of evidence rather same could not be termed as a judgment/order in the eye of law

Process Server had not been examined which was mandatory

Both the courts below had committed illegality which was fatal to the case

Conduct of defendant was also not above board throughout the proceedings

Application for setting aside ex parte decree was moved after considerable delay of more than a year without any explanation for delay

Defendant was burdened with a cost of Rs.50,000/- to be paid to the plaintiff before the Trial Court

Impugned judgments were set aside

Revision was accepted in circumstances

Trial Court was directed to decide the matter within a specified period.

Contention of defendant was, inter alia, that defendant at no stage had knowledge of the suit and was never served with a summons for the suit

Validity

Substituted service was not the ordinary way of service on a defendant and court had to be satisfied that there was reason to believe that the defendant was keeping out of the way for the purpose of avoiding service and that for any other reason, the summons could not be served in the ordinary way

Plaint of the plaintiff was initially struck off, and prior to its striking off, the plaintiff had failed and / or avoided to pay cost / process fee for issuing of summons and notices

Plaintiff did not take any steps to provide fresh address of defendant, though it was available, for effecting service and therefore, it could not be said that the defendant had deliberately avoided service , and for this reason the plaint was struck off

Subsequently after four and a half years, plaintiff filed application for setting aside of order whereby its plaint was struck off

After restoration of plaint, summons either was not issued to defendant or remained un-served

Publication was not issued as cost was not paid by the plaintiff

In application for substituted service under O. V, R. 20, C.P.C. plaintiff nowhere stated that defendant was keeping out of the way for avoiding service or that for any other reason, summons could not be served in the ordinary way

Article 10-A of the Constitution mandated that civil rights and obligations be adjudicated upon through a fair trial and due process of law

High Court set aside ex parte judgment and decree against defendant, and directed defendant to file written statement within a period of thirty days

Application was allowed, accordingly.

Three modes of service of summons for personal service: Service by affixation of summons and substituted service; service by affixation of summons to be resorted to when personal service was not possible and substituted service of the defendant should be made as a last resort and not by bypassing the first two modes of personal service and service by affixation

Substituted service was to be made where the court was satisfied that there was reasons to believe that defendant was keeping out of the way for the purpose of avoiding service or for any other reasons the summons could not be served in the ordinary way.

Defendant was served through his real brother and under O. V, Rule 15 C.P.C. [Lahore High Court Amendment]; service through adult male member of the family was complete and it was not contended that he had strained relations with his family or that the brother did not inform the defendant

Property of the defendant was attached and notice was issued to him during execution proceedings and he must have attained knowledge of the ex parte decree

Contention that newspaper proclamation should have been issued was without force as substituted service under O. V, Rule 20 C.P.C. would be resorted to only if it was proved that the defendant was avoiding service or for any other reason the ordinary service was not possible but in the present case the service was effected in accordance with O. V, Rule 15 of the C.P.C. [Lahore High Court Amendment]

Appeal was dismissed.

Where summons had not been served upon the defendants, the terminus a quo for filing application for setting aside ex parte proceedings was the date of acquisition of knowledge of the order.

Conditions precedent to be fulfilled by court stated.

Condition precedent was that if a court was satisfied that the service could not be effected in ordinary manner, same could be ordered for substituted service; but before passing said order, the court had to comply with the conditions attached to R.20 of O.V of C.P.C.

Proclamation in the present case was published in a newspaper which had no wide circulation

High Court, in circumstances, had rightly found that ex parte proceedings against the defendants were ab initio void and superstructure built upon a void base, had to fall

No illegality or infirmity was found in the judgment passed by the High Court, which was well reasoned and had been passed after attending all the controversial questions in a comprehensive manner

Appeal against order of High Court was dismissed, in circumstances.

Resort to such service would be made only when all efforts to effect service in ordinary way were verified to have been failed or party was reported to be avoiding to receive summons deliberately

Court was competent to issue process simultaneously through all modes or any of specified modes of service.

After receipt of publication as was directed by the Trial Court, defendant who failed to appear, was proceeded ex parte and ex parte decree was passed against him and application for setting aside ex pane decree was dismissed by the Trial Court

Record s/towed that Trial Court had failed to observe the provisions contained in O. V, C.P.C.

Command of law was that all the provisions of O. V, C.P.C. must be adhered to in their letter and spirit and all efforts be made to procure the personal attendance of the defendant

Spirit of O. V, C.P.C. was that before resorting to the provisions of R.17, O. V, C.P. C. the court would observe the requirements regarding the personal service of the defendant

Without taking step to procure the personal service, the rest of the exercise in that respect would not be considered as lawful

In the present case the Trial Court directed to issue the publication in the press without awaiting the receipt of the process sent for the' service of the defendant to the civil court

Nothing was available on the record to show that the serving officer was examined by the court to the effect that he failed to procure the service of defendant and the report submitted was correct, whereupon, farther process directed to initiate the substituted service

Nothing was on record to show that the defendant was in the knowledge of date of hearing when he was proceeded ex pane; in such circumstances it could not be held that the defendant was duly served.

Defendant sought setting aside of judgment and decree passed by Banking Court on the ground that process was not served on him as his incorrect address was mentioned in plaint and also on the process

Validity

Relevant provisions for process were provided in Sindh Chief Court Rules (O.S) for the convenience and larger public interest and if the same were not followed in letter and spirit, the same would create unnecessary multiplicity of proceedings

Before declaring any person ex parte, the Court ought to ensure that all reasonable and possible efforts had been made for effective service on the parties

Neither bailiff had complied with relevant provisions nor Additional Registrar of High Court had held any inquiry as to sufficiency of service and ordered substituted service

Address of applicant was wrong throughout the proceedings and no efforts were made for personal service on him at the correct address

Judgment and decree was obtained against defendant on misrepresentation, which clearly transpired from wrong address of defendant mentioned in plaint as well as subsequent addresses provided by plaintiff-As the address of defendant was wrong and suit was decreed on the basis of wrong address defendant was never served, hence application under S.12(2), C.P.C. was maintainable on the ground of misrepresentation

Ex parte judgment and decree passed against defendant was set aside and case was remanded to Banking Court for filing of written statement by defendant

Application was allowed in circumstances.

Defendant sought setting aside of judgment and decree passed by Banking Court on the ground that process was not served on him as his incorrect address was mentioned in plaint and also on the process

Validity

Relevant provisions for process were provided in Sindh Chief Court Rules (O.S) for the convenience and larger public interest and if the same were not followed in letter and spirit, the same would create unnecessary multiplicity of proceedings

Before declaring any person ex parte, the Court ought to ensure that all reasonable and possible efforts had been made for effective service on the parties

Neither bailiff had complied with relevant provisions nor Additional Registrar of High Court had held any inquiry as to sufficiency of service and ordered substituted service

Address of applicant was wrong throughout the proceedings and no efforts were made for personal service on him at the correct address

Judgment and decree was obtained against defendant on misrepresentation, which clearly transpired from wrong address of defendant mentioned in plaint as well as subsequent addresses provided by plaintiff

As the address of defendant was wrong and suit was decreed on the basis of wrong address defendant was never served, hence application under section 12(2) C.P.C. was maintainable on the ground of misrepresentation

Ex parte judgment and decree passed against defendant was set aside and case was remanded to Banking Court for filing of written statement by defendant

Application was allowed in circumstances.

Trial Court issued summons against defendants and finally made a proclamation in the newspaper and after recording ex parte evidence granted plaintiff an ex parte decree

Application filed by defendants for setting aside ex parte decree was dismissed by the Trial Court; but Appellate Court set aside ex parte decree and original suit was restored and was remitted to civil court for decision on merits

Validity

Record had revealed that summonses were issued against defendants and over leaves the summonses was a note of bailiff that defendants could not be traced at the given address

Trial Court was duty bound to have asked for filing of fresh addresses of defendants, but instead the court ordered proclamation in the newspapers which procedure was bad in law when the Process Server had not reported either the avoidance or refusal of service by defendants

Defendants had not been properly served

Order of Appellate Court being perfectly sound, just, equitable and in consonance with established principles of administration of justice, called for no interference, and thus was maintained, but with a little modification that cost of Rs.3,000 was imposed on defendants.

Application under S.5, Limitation Act, 1908 for condonation of delay was filed with the revision petition, alleging the publication of notices in a daily of limited circulation and that the plaintiffs were not served nor the notice was sent by post

Court found that at one stage plaintiffs had filed an application under O. VII, R. 10, C. P. C. seeking return of the application filed by defendants under S.12(2), C.P.C. and thus they were aware of the pendency of the proceedings which was also clear from the averments, made both in revision petition and application under S.5, Limitation Act, 1908

Power under S.5 of the Limitation Act, 1908 to condone delay in filing revision petition was not available

Delay, in circumstances, was not condoned and application and revision petition were dismissed.

Departmental appeal, if not filed before the appropriate Authority and was filed before the highest Authority then it is duty of the higher Authority to forward that appeal to the competent Departmental, Authority.

S. 23(1)(a) read with Civil Procedure Code (V of 1908), Ss. 27 to 31 and O. XVI, rr. 1 to 21-Substituted service-Summoning and enforcing attendance of any person and examining him on oath as provided for in S. 23(1)(a) of Act XLVII of 1958-Relates to summoning of witness or party for purpose of examining him as provided for in Ss. 27 to 31 and O. XVI, rr. 1 to 21, Code of Civil Procedure, 1908Provision of O. V, Civil Procedure Code, 1908, having not been specifically mentioned amongst matters for which an officer of Settlement Department conferred same powers as vested in civil Court contention that order for substituted service could be made by Settlement Authority only after exhausting procedure laid down for summoning other side in O. V, rr. 17 & 19, Civil Procedure Code, 1908, held, not tenable.

O. V, r. 20 and O. IX, r. 13-Substituted service-Ex parte decree, setting aside of'-Summons issued to defendant returned with report of defendant being not available at given address-Petitioner decree holder admitting in his writ petition notices having been issued to defendant "at his last known address"-Such fact itself connoting plaintiff's failure to sue defendant at "his the then address" or correct address-Petitioner also alleging in his writ petition his having known 8 of defendant's illness at Alexandria in Egypt and his death after a major operation-Plaintiff, held, obtained order from Court for effecting substituted service by wilful suppression of defendant's correct address and thus played fraud on Court and Court annulled its own proceedings for sufficient reasons.-[Ex parte decree].

Substituted Service Not ordinarily to be directed unless effort has been made to affect service personally or through agent