PLJ 2020 Quetta 53 (DB)
Present: N AEEM AKHTAR AFGHAN AND ABDUL HAMEED BALOCH , JJ.
GHULAM NABI --Appellant
versus
MIR MUHAMMAD ALI RIND--Respondent
C. Misc. A. No. 18 of 2017, decided on 5.8.2019.
Defamation Ordinance, 2002 (LVI of 2002) --
----S. 3--Civil Procedure Code, (V of 1908), O.XVII & IX, Rr. 2, 3 & 13--Suit for recovery of
damages --Dismissed --Allegation of corruption and running of terrorist camps --Application for
recalling of order --Dismissed --Filling of civil miscellaneous appeal- -Allowed and case was
remanded --Issuance of notices and publication in newspaper for appearance of respondent --Ex-
parte decreed --Application for execution--Application for sitting aside ex -parte decree during
pendency of execution proceedings --Rejected --Report of process server --Non- affixation of
notices at outer door of appellant --Limitation --Perusal of record reveals that appellant was
residing at Turbat City and running business by name of Mekran Petroleum Service at main
Road Turbat but there is no report of process server as to whether summons were served or un -
served upon appellant --Record further reveals that trial Court did not order for affixation of
notice at outer door of house of appellant or at his business address nor same was sent through courier service --It seems that trial Court has failed to follow procedures as provided under Rule
20 of Order V, CPC, therefore publication in Daily Intekhab cannot be considered as effective
service of notice upon appellants/defendants --Publication was made i n Daily Intekhab Hub for
date of 23.04.2012 but appellant was not proceeded against ex- parte on said date and matter was
adjourned by Court for 27.04.2012--Without issuing any notice for appellant for 27.04.2012 and without making any publication for 27.04.2012, appellant was proceeded ex- parte by trial Court
on basis of publication made for date of 23.04.2012 which is a grave illegality--On getting
knowledge of impugned ex- parte judgment and decree, appellant filed application for setting
aside same--In ci rcumstances of instant case limitation will run from date of knowledge of
appellant --It is settled principle law that matters should be decided on merits and not on
technicalities --Appeal was allowed. [Pp. 57 & 58] A, B, C & D
Mr. Tahir Ali Baloch, Advocat e for Respondent.
Date of hearing: 27.7.2019.
J
UDGMENT
Abdul Hameed Baloch, J. --This appeal is directed against the order dated 07.04.2017
(“impugned order” ) passed by learned Additional District Judge -VI, Quetta ( “trial Court”)
whereby an application unde r Order IX Rule 13, CPC filed by the appellant for setting aside the
ex-parte decree dated 31.12.2012 was dismissed.
2. Brief facts of the case are that the respondent/plaintiff Mir Muhammad Ali Rind filed a suit
against the appellant for recovery of damag es worth Rs. 250 million, for loss of reputation due to
making false allegations of corruption and running Terrorist Camps against him. On receipt of suit, notice was issued to the appellant, whereupon the appellant filed his written statement through his counsel. Out of the pleadings of the parties the issues were framed on 08.02.2007.
On 02.05.2009 suit of the respondent/plaintiff was dismissed under Order XVII Rule 2 & 3,
CPC, against the said order, the respondent/plaintiff filed an application before t he Additional
District Judge -VI, Quetta for its recalling, which was dismissed. Feeling aggrieved by the said
order, the respondent/plaintiff assailed the same before this Court by filing Civil Miscellaneous Appeal No. 13 of 2009 and with consent of both t he parties, the case was remanded. On receipt
of case file, the trial Court issued notices to the parties but neither the appellant nor his counsel
made their appearance and from 13.08.2011 till 14.03.2012 the notice of the appellant was
ordered to be repeated for twelve dates of hearing but due to non- appearance of appellant, on
14.03.2012 order for issuance of notice through publication was passed and on 05.04.2012 the
counsel for the appellant informed that the daily newspaper Jang has not circulation in Turbat
and requested for publication of notice in the Daily Intekhab, which was accepted, but inspite of publication the appellant failed to appear before the Court, therefore he was proceeded against
ex-parte and the trial Court after hearing the respond ent/ plaintiff decreed the suit in his favour
vide judgment and decree
dated 31.12.2012.
3. Thereafter the respondent/plaintiff filed an Execution Application before the executing Court,
which is still pending.
4. Meanwhile the appellant filed an applica tion under
Order IX rule 13 PPC for setting aside the judgment and decree
dated 31.12.2012, which was contested by the respondent/plaintiff by way of filing rejoinder.
The trial Court after hearing the parties, rejected the application under Order IX Rule 13, CPC.
Hence this appeal.
5. Learned counsel for the appellant contended that after remand of the case by this Hon’able Court on 27.06.2011, the process issued by the trial Court was never served upon the appellant;
that there is nothing on record to show that the appellant deliberately avoided acceptance of
summons issued by the trial Court; that without adopting proper procedure and instead of ordering affixation of notice on the outer door of the house of the appellant, the trial Court
ordered for making publication in the name of the appellant in daily ‘Intekhab’; that the appellant
did not come across the publication; that consequently an ex- parte order was passed against the
appellant by the trial Court on 27.4.2012, which was followed by ex -parte judgment and decree
dated 31.12.2012, which did not come to the knowledge of the appellant; that on 20.8.2015 an
execution application was also filed by the respondent but notice of the same was also not served upon the appellant till 13.6.2016; that on 13.6.2016 the appellant got knowledge about pendency
of the execution application against him, upon which the appellant approached the trial and
submitted an application for setting aside the ex -parte judgment and decree but the trial Court
dismissed the s aid application vide impugned order; that the time start from the knowledge and
the law does not favour the adjudication on technicalities rather on merits. He therefore prayed for accepting the application by setting aside the impugned order.
6. Learned counsel for the respondent contended that the appeal filed by the appellant is barred by time as the appellant has failed to explain the long standing delay; that the learned counsel for
the appellant was present when the case remanded by this Hon’able Court. He therefore prayed
for dismissal of the appeal.
7. We have heard the learned counsel for the parties and have perused the record. The perusal of
record reveals that the case was remanded by this Court on 26.6.2011, whereupon the trial Court
registered the case and on 13.8.2011 issued notices to the parties for appearance. On 7.9.2011,
21.9.2011, 10.10.2011, 20.10.2011, 29.10.2011, 17.11.2011, 29.11.2011 none was present on
behalf of the parties. On 15.12.2011 counsel for the plaintiff/respondent appear ed. On 14.3.2012
the trial Court directed the plaintiff for publication of notice in the daily ‘Jang’ newspaper,
however on 05.04.2012 the counsel for the plaintiff requested for publication in the daily
‘Intekhab’ instead of Daily ‘Jang’. The request so m ade ‘ was allowed by the trial Court and the
plaintiff was directed to submit the publication on 23.04.0212, but the plaintiff did not submit the
publication on the same day however on 27.4.2012 the plaintiff submitted copy of the
publication. On 20.11.2012 statement of the representative of Daily Sangeen Zhob was recorded
and thereafter on 31.12.2012 the suit of the plaintiff was decreed.
8. In view of the referred facts, the Order V, sub -rule (1) of Rule 20, CPC comes into play,
therefore it would be app ropriate to reproduced the same herein below:
Order V, Rule 20, CPC 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 othe r 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, phonogram, telex,
fax, radio and television; or
(c) Urgent mail service or public courier services; or
(d) Beat of drum in the locality where the defendant resides; or
(e) Publication in press; or
(f) Any other manner or mode as it may think fit;
Provided that the Court may order the use of all or any of the aforesaid manners
and modes of service simultaneously.”
9. The referred provision clearly shows that the Court has power to adopt procedure of
substituted service, only when all efforts to effect the service upon the defendant in the ordinary course are made. The perusal of record reveals that the appellant was residing at Turbat City and
running business by the name of Mekran Petroleum Service at main Road Turbat but there is no report of the process server as to whether the summons were served or un -served upon the
appellant. The record further reveals that th e trial Court did not order for affixation of the notice
at the outer door of the house of the appellant or at his business address nor the same was sent
through courier service. It seems that the trial Court has failed to follow the procedures as
provided under Rule 20 of Order V, CPC, therefore the publication in the Daily Intekhab cannot
be considered as effective service of notice upon the appellants/defendants.
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 Court for 27.04.2012. Without issuing any notice for the appellant for 27.04.2012 and without making any publication for 27.04.2012, the appell ant 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.
For rendering this view, we are fortified from the dictum laid down by this Court in the case of
Abdullah Jan v. Bibi Al mas 2016 CLC 1465, wherein it has been held as under:
“Even otherwise, the trial Court before making order for publication of notice in press, did not order affixation of copy of summons at some conspicuous part of the house or place of business of the appellants. If such procedure was adopted, the appellants could
have been served. Thus, the given facts lead us to the conclusion that even proper
procedure as provided by Rule 20 of Order V of the, CPC has also not been adopted by the trial Court, therefore, the publication of notice in the daily newspaper Baakhabar
cannot be considered as effectual service of notice upon the appellants/defendants.”
11. Record reveals that on getting knowledge of impugned
ex-parte judgment and decree, the appellant filed t he application
for setting aside the same. In the circumstances of the instant
case the limitation will run from the date of knowledge of the appellant.
It has been established that the appellant was not aware
about the announcement of ex- parte judgm ent and decree passed by the trial Court and no notice
was served upon him, therefore limitation will not be a hurdle in the way of the appellant. It is settled principle law that the matters should be decided on merits and not on technicalities.
In view of above, the appeal is allowed and the impugned order dated 07.04.2017 as well as ex -
parte judgment and decree dated 31.12.2012, respectively passed by the Additional District
Judge -VI, Quetta are set -aside. The case is remanded back to the trial Court wit h direction to
decide the same on merits within a period of four months strictly in accordance with law by providing fair opportunity of defense to the appellant.
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