Abdul Rehman Vs Muhammad Ishtaq

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Civil Revision No.50934 of 2025.

Abdul Rehman.

Versus

Muhammad Ishaq.

J U D G M E N T.

Date of hearing: 21.10.2025.

Petitioner by: Rana Naveed Khalid, Advocate.

Respondent by: Mr. Usama Zubair, Advocate.

AHMAD NADEEM ARSHAD, J. Through this Civil

Revision filed u/s 115 of Code of Civil Procedure, 1908, the petitioner has called in question the validity and legality of order dated 24.07.2025 pursuant whereto his application for setting-aside ex-parte proceedings dated 03.12.2024 was dismissed.

2.Tersely, necessary facts forming background of the proceedings in hand are that the respondent instituted a suit for recovery of Rs.14,860,043/- against the petitioner on the basis of a cheque under Order XXXVII Rule 1 & 2 C.P.C. The

petitioner/defendant was summoned by the learned Trial Court, however, it was reported by the process server that he is detained in District Jail, T.T. Singh, in connection with criminal cases and his service was affected through Superintendent of the Jail. Learned Trial Court, after recording statement of the process server, initiated

ex-parte proceedings against the petitioner vide order dated 03.12.2024. The petitioner filed application seeking setting-aside ex- parte proceedings dated 03.12.2024 which was turned down by the learned Trial Court vide order dated 24.07.2025. Hence, this petition.

3.I have heard learned counsel for the parties and gone through the record with their able assistance.

4.After hearing learned counsel for the parties and going through the record, it has been observed that the petitioner, in his application, seeking setting-aside ex-parte proceedings categorically maintained that he was detained in District Jail, T.T. Singh, and when he appeared in the Court in connection with other cases he came to know about the pendency of this suit, hence, he abruptly filed applications for setting aside ex-parte proceedings, seeking leave to appear and defend the suit and condonation of delay on

5.Learned counsel appearing on behalf of the respondent claimed that stance of the petitioner to be detained in jail and having no contact with his relatives or counsel is misconceived, as in another suit titled “Naseem Hassan V. Abdul Rehman” leave to defend was filed on behalf of the petitioner on 15.04.2025. Learned counsel has also submitted certified copy of the order-sheet of that suit during arguments. This argument is not helpful for the respondent as it is apparent from the order sheet that in the said case the petitioner was summoned by the Court from jail for 22.04.2025 and he moved the applications on the said date.

6.It is evident from the certified copy submitted by learned counsel for the respondent that the petitioner was summoned by the Court for 22.04.2025 in that suit. The petitioner filed the application seeking setting-aside ex-parte proceedings in the instant case on the same day agitating that he has come to know about the instant suit on that day. Certified copy submitted from respondent side strengthens the version of the petitioner.

7.Moreover, when it was reported by the process server before the learned Trial Court that the petitioner/defendant is detained in District Jail, T. T. Singh in connection with criminal cases, special circumstances arose. A person detained in jail cannot directly approach the Court, even if summons in a civil case have been served upon him. Detention limits one’s physical mobility and ability to make legal arrangements or file necessary responses without external assistance or intervention of the Court. Therefore, when it was brought to the notice of the Court, either through the process server or via any other official communication, that the defendant is in judicial custody, it was the responsibility of the Court to ensure that procedural fairness is upheld.

8.Rule 24 of Order V of the Code of Civil Procedure, 1908, deals with the service on a defendant in prison. It mandates that where a defendant is confined in a prison, the summons shall be delivered or sent by post or otherwise to the Office in Charge of the Prison for service on the defendant. In this case, summon was though not sent to the Superintendent District Jail, T. T. Singh via post, however, the same was delivered through Process Server. There is

nothing in the report to suggest that copy of plaint was also annexed with the summons and the same was handed over to the petitioner which was the requirement of law as per Form No.4 in Appendix B.

9.In view of the above, proper course for the learned Trial Court was to issue an order for production of the petitioner from the jail and supply copy of the plaint of the suit while exercising powers conferred upon him under Order V Rule 24 C.P.C. and in order to accomplish the requirements of law. Hon’ble Supreme Court of Pakistan in a case titled "Ghulam Rasool V. Abdullah" (1991 SCMR 1964) while dealing with a situation wherein defendant was under incarceration observed as under:

"4. The case of the appellant is that he was convicted under section 325, P.P.C. on 22-3-1987 and sentenced to two years' imprisonment'. According to the appellant, his case was fixed for pronouncement of judgment on 22-3-1987. He had given oral instructions to a Petition Writer for drafting his written statement which was prepared by him and was presented by his son on 24-3-1987. The Court in spite of the knowledge with regard to the detention of the appellant did not direct the Jail authorities to produce him in Court on 5-4-1987. It is an admitted feature of the case that the appellant was convicted on a criminal charge and his absence was not wilful. It was beyond his control. No process was issued to the appellant for 5-4-1987, as such ex parte proceedings could not be taken against him. The appearance of the minor son of the appellant was not appearance on behalf of the appellant. He was not a constituted attorney of the appellant. He had only informed about a fact, when it came to the notice of the Court that the appellant had been detained on a criminal charge, it was obligatory on the Court to have issued a process to the appellant. Thus, the Qazi had exercised the jurisdiction in proceeding ex parte illegally and against the provisions of law. The Majlis-e-Shoora and the High Court have not taken into consideration these facts. The ex parte decree, in the circumstances of the case, could be Set aside in appeal by the appellate Court. The High Court has not adverted to this aspect of the case that no process was issued to the appellant, therefore, ex-parte proceedings could not have been drawn against him."

10.In Ghulam Rasool’s case (supra) the defendant was present in the proceedings who was later convicted in a criminal case and as such proceeded against ex-parte but the apex Court held that it was

obligatory on the Court to have issued process to the detained defendant when it came to the notice of the Court. However, in this particular case, the petitioner was detained in the jail prior to the institution of the suit, having no knowledge about the lis. Dictum laid down by the apex Court in Ghulam Rasool’s case was followed by this Court in a case titled "Muhammad Nadeem Amin V. Ch. Farasat Ullah" (PLD 2006 Lahore 32).

11.The right of "access to justice to all" is a fundamental right guaranteed under Articles 14 and 21 of the Constitution of the Islamic Republic of Pakistan, 1973, ensuring every individual, including those in custody, can approach the courts for legal remedies. A person detained in jail in connection with a criminal case cannot appear in a civil court to defend or prosecute a civil suit unless the civil court orders his production. This restriction, if not addressed by the court, can lead to denial of fair trial and violation of natural justice. To prevent such injustice, courts have the power to summon the detained person, thereby enabling their participation in civil proceedings. Ensuring access to justice for those in custody upholds the principles of equality, due process, and fair hearing.

Denial of this right would amount to a serious infringement of constitutional guarantees. This fundamental right of access to justice has been recognized and explained by the Hon’ble Supreme Court of Pakistan in a case titled "Mehram Ali and others V. Federation of Pakistan and others" (PLD 1998 SC 1445).

12.Taking stock of the above discussion, it is clear that access to justice must be ensured even for individuals in custody. Failure of

the Trial Court to summon the petitioner from jail, after knowing of his detention, amounts to a legal error. Once it was reported to the learned Trial Court by the process server that the petitioner/defendant was detained in District Jail, T. T. Singh, in connection with criminal cases, the Court ought to have issued directions to the Jail Superintendent to produce the petitioner before it. This would have ensured that the petitioner was properly apprised of the civil suit and given a fair chance to respond. By not doing so, the learned Trial Court failed to discharge its duty to ensure procedural justice and thereby erred in law.

13.As an inescapable corollary of above discussion, this revision petition is accepted. Consequently, impugned order dated 24.07.2025 is set-aside and petitioner’s application seeking setting-aside ex-parte proceedings dated 03.12.2024 is allowed. No order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE.

Approved for Reporting.

JUDGE.

M. Arsalan*