74/2015 J.M Maula Bakhsh. (Applicant) V/S Muhammad Abrar Ahmed & Others. (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Adnan Iqbal Chaudhry(Author)
Order Date: 02-MAR-20
1. Substituted service by way of publication is only presumed to be personal service by virtue of Rule 20(2) of Order V CPC. Such presumption is rebuttable. Therefore, where service by publication is challenged, the first test is to see whether the conditions of Order V Rule 20 CPC had been met, viz., that the publication was resorted to after the Court was satisfied that the defendant was avoiding service, or there was some other reason to believe that summons could not be served in the ordinary manner; in other words, whether the ordinary modes of service available had been exhausted. Rel: Muhammad Anwar v. Abdul Haq (1985 SCMR 1228); Haji Akbar v. Gul Baran (1996 SCMR 1703); and Nargis Latif v. Feroz Afaq Ahmed Khan (2001 SCMR 99). 2. While a couriers receipt was filed to show that summons had been dispatched, there was no report of delivery by the courier to show that summons so dispatched were delivered or tendered within the meaning of Order V Rule 10 CPC. So far there is no statute that attaches a presumption of service to summons sent by a private courier service (as opposed to a public courier service). Rel: Inayatullah v. Syed Khursheed Ahmed Shah (2014 SCMR 1477). Thus, it can be safely said that prior to publication neither the available modes of service were exhausted nor was there a verification that the modes of service so used had failed. In any case, the publication made was at best publication of the notice of the pending CMAs and there was no publication made of the summons of the suit. 3. Had it not been a case attracting section 12(2) CPC, the exparte judgment and decree could nonetheless be set-aside under Order IX Rule 13 CPC.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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