2021 C L C 1189
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD NABI ----Petitioner
Versus
BIBI MALIKA ----Respondent
Civil Revision No.434 of 2019, decided on 17th July, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O.IX, R.13 & O.V, R.20---Constitution of Pakistan, Art.10- A---Application to set aside
ex-party decree, rejection of ---Modes of service to the defendant ---Scope ---Right to fair trial-
--Scope ---Held, that though the notices, in the present case, were is sued to the petitioner but
the same could not be served upon him and then publication was made in newspaper for his
appearance, thereafter ex -parte proceedings were initiated against the petitioner and after
recording ex -parte evidence, the suit was decreed in favour of respondent ---Trial Court did
not ascertain the factual position as to whether the notices had properly been served upon the petitioner and impugned decree and judgment did not justify reasons for the rejection of application under O.IX, R.13, C.P.C. ---Article 10 -A of the Constitution provided that a
person "shall" be entitled for fair trial and due process both in civil and criminal proceedings and the rights of person were protected--- Even otherwise, under O.V, R.20, C.P.C,
substituted servi ce could only be ordered where the Court was satisfied that there were
reasons to believe that the defendant was keeping himself away for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way---Trial Court was supposed to do substantial justice between the parties by restoring the suit in
its original position and allowing the parties to prosecute the suit on merits and to lead evidence their pro and contra evidence ---Trial Court, in the present ca se, had failed to effect
service of notice upon the petitioner/defendant through process -server or on the pointation of
the respondent/plaintiff as the premises of defendant was known to the respondent ---Even if
the service could not be effected the Trial Court was duty bound to have asked for filing of a fresh address of the defendant , but instead the Trial Court ordered for proclamation in the newspaper ---Said procedure was bad in law and the process -server had not reported either
the avoidance or refusa l of service by the defendant, as such the defendant had not been
properly served--- Petitioner was non- suited and was condemned unheard, in circumstances ---
High Court set aside the impugned judgments and decrees passed by both the Courts below --
-Case was r emanded to the Trial Court for decision on merits by providing full and fair
opportunity to the parties ---Constitutional petition was allowed, in circumstances.
Malik Muhammad Nazir v. Mian Abdul Raheem and another PLD 1968 Lah. 792 ref.
(b) Administrati on of justice ---
-----Cases were to be decided on merit instead of technicalities.
Noor -ur-Din Kakar for Petitioner.
Hamayun Tareen for Respondent.
Date of hearing: 10th July, 2020.
JUDGMENT
ABDULLAH BALOCH, J. ----This petition is directed against the ex-parte decree
dated 04.08.2018 and order dated 07.05.2019 passed by learned Senior Civil Judge -III,
Quetta (hereinafter referred as "the trial Court") and judgment dated 04.09.2019 (hereinafter
referred as "the impugned judgment and decree") passed by t he learned Additional District
Judge -IV, Quetta (hereinafter referred as "the appellate Court") whereby the appeal of the
petitioner was dismissed by way of upholding the ex- parte decree and order dated 07.05.2019
of the trial court.
2. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of
Rs.245000/ - and monthly rent of 11 months at the rate of Rs.5000/ - per month against the
mortgage principal loan amount of Rs.190,000/ - w.e.f. 12.01.2010 till realization of decree.
3. After restoration of case, notices were issued to the petitioner/respondent, but he did
not appear; thus, ex- party proceedings were initiated and after recording ex -party evidence
case was decreed in favor of respondent/plaintiff vide judgment and decree date d 04.08.2018
and thereafter the decree- holder filed an execution application before the executing Court
and during the course, the petitioner filed an application under Order IX, Rule 13, C.P.C. for setting aside the ex -party decree as well as application under section 21, Rule 26, C.P.C. for
staying the proceeding of execution, which was contested by the other side and after hearing the parties, the application was dismissed fallowed by the appeal and the same was also dismissed by the learned appellate Court vide judgment dated 04.09.2019.
4. The learned counsel for petitioner mainly contended on sole
ground that the service of notices have not been properly effected upon the
petitioner/defendant due to wrong address mentioned in the plaint by the plaintif f/respondent
due to mala fide intention; thus, the entire ex- parte proceedings carried, are not sustainable
and liable to be set aside. It is further contended by the learned counsel for the petitioner that the valuable rights of the petitioner are involve d in the matter and the petitioner was
condemned unheard "Audi Alterm partem". Thus, the judgment and decree passed by Courts below are liable to be set aside and the matter be remanded after providing full and fair opportunity to the petitioner.
5. On the other hand, learned counsel for the respondent vehemently opposed the
contention so raised by the learned counsel for the petitioner and he contended that the
judgment -debtor willfully and intentionally avoided to receive the notices; thus, all modes of
services were adopted by the learned trial Court, but the petitioner has failed to appear and
contest the case. He further contended that several opportunities were afforded to the petitioner, but he has failed to avail any opportunity. The respondent/plaintiff proved its case
through confidence inspiring evidence and the judgment and decrees passed by the Courts
below does not suffer from any illegality or irregularity to be interfered by this Court. He
requested for dismissal of petition.
6. Heard the lear ned counsel for the parties and perused the record, which reveals that
suit for recovery was filed by the respondent/plaintiff against the petitioner/defendant for recovery of Rs.245000/ -along with II month's rent. The record further reflects that though t he
notices were normally issued to the petitioner/defendant, but the same could not serve upon the petitioner and thereafter publication was made in daily newspaper i.e. Bakhabar Quetta dated 15.10.2017 for appearance of petitioner/defendant. Thereafter ex- parte proceedings
were initiated against the petitioner and after recording ex -parte evidence the suit was
decreed in favour of respondent/plaintiff. To ascertain the factual position whether the notices have properly been served upon the petitioner/defendant, the impugned decree and
order passed by the learned trial Court does not justify the reasons for rejection of
application under Order IX, Rule 13, C.P.C. In view of the provisions of Article 10- A of the
Constitution of Islamic Republic of Pakistan, 1 973, wherein it is categorically mentioned that
a person "shall" be entitled for fair trial and due process, for convenience Article 10- A of the
Constitution is reproduced as under:
"10-A Right to fair trial. For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trial and due process."
7. Bare reading of above article made it crystal clear that the rights of a person for fair
trial in civil and criminal proceedings ar e protected under the Constitution of Islamic
Republic of Pakistan, 1973. Even otherwise uncle Order V, Rule 20, C.P.C., substituted the service can only be ordered, where the Court was satisfied that there were reasons to believe that the defendant was ke eping out of the way for the purpose of avoiding service or that for
any other reason, the summons could not be served in the ordinary way. It was held in the Case titled as "Malik Muhammad Nazir v. Mian Abdul Raheem and another" (PLD 1968 Lahore 792) that where there was no sufficient material on record to show that a defendant is
either avoiding service or refusing to accept the service, the order for substituted service could not have been passed nor can ex- parte proceedings be ordered on the basis of such
service.
8. Be that as it may, the learned trial Court should have done substantial justice between
the parties and to restore the suit in its original position and open the suit to the parties to prosecute the suit on merits and to lead their evidence pro & contra, but in the case in hand, the learned trial Court has failed to get effect service of notice upon the petitioner/defendant through process server or on the pointation of the respondent/ plaintiff as the premises of defendant was well known by the respondent. Even at all, if the service could not be effected
the trial Court was duty bound to have asked for filing of a fresh address of the defendant,
but instead the trial Court ordered for proclamation in the newspaper, which procedure was
bad in law and the process server had not reported either the avoidance or refusal of service
by defendant, as such, defendant had not been properly served. Thus, in view of the above, the petitioner/defendant was non- suited and condemned unheard. It is the cons istent view of
the superior Courts that the cases be decided on merits instead of technicalities.
For the above reasons, the petition is accepted and the impugned ex- parte order and
decree dated 04.08.2018 and order dated 07.05.2019 passed by the learned trial Court and
judgment and decree dated 04.09.2019 passed by the appellate Court are set aside and without touching the merit of the case, the matter is remanded to the learned trial Court with directions to proceed with the case from very initial stage and to provide full and fair opportunity to the parties to file written statement and lead their evidence and thereafter decide the case in accordance with law within a period of three months, positively.
MQ/143/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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