Zafar Ejazi & others Vs Malik Muhammad Ishaq

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(Judicial Department)

FAO No. 08-A/2018

Zafar Ejazi & others Versus Malik Muhammad Ishaq

JUDGMENT

For Appellants: Haji Sabir Hussain Tanoli, Advocate.

For respondents: M/s Zaheer Khan Jadoon and Shahid Nawaz Khan Jadoon, Advocates.

Date of hearing 14.04.2025

MUHAMMAD FAHEEM WALI, J.- Through the instant appeal, the appellants have called in question the order dated 05.04.2018 rendered by learned Additional District Judge-III, Abbottabad, whereby their application for setting-aside ex-parte decree, was dismissed.

2.The appellants herein are the defendants in a suit for recovery of damages, filed by the respondent/plaintiff. On being summoned, the appellants/defendants failed to put their appearance before the learned trial Court and thus vide order dated 06.01.2011, they were placed and proceeded against ex- parte. The defendant No.1 in the suit, however, contested the suit by filing his written statement and the learned trial Court, after recording pro and contra evidence, dismissed the suit of the respondent/plaintiff against defendant No. 1, whereas an ex-

parte decree was passed against the present appellants/ defendants. The appellants/defendants filed application for setting-aside ex-parte decree on 19.02.2014, which was dismissed by the learned trial Court vide impugned order dated 05.04.2018. Feeling aggrieved, the appellants have approached this Court through instant appeal.

3.Arguments heard and record gone through.

4.Record shows that respondent filed a suit on 14.12.2010 for recovery of damages under Defamation Ordinance. The defendant No. 1 in the suit was served personally, who put appearance and contested the suit. The notices/summons issued by the learned trial Court to the present appellants for 06.01.2011, show that all the summons bear the report of process server that the process was personally served upon the defendants/appellants, however, all the three summons bear a similar signature but there is no name, parentage or address etc. of the person, who received the notices. On the basis of said report, the appellants were proceeded against ex-parte and later on ex parte evidence was recorded, which culminated into ex parte decree.

5.The appellants contended in their application that their address mentioned in the plaint was not correct and they were not personally served during the pendency of the suit. They further contended that they got knowledge of the ex-parte decree during execution proceedings. The report of Process Server reveals that

the same was not proper and service of the defendants was not effected personally at any stage of the proceedings. The defendants should have been served in person or through their agent empowered to receive/accept the service. In case the defendant was found not present on the given address, nor there was any authorized agent, then service could be made through male member of the defendant's family, residing at the same address. Once the proper service is effected upon defendant then the Court gets jurisdiction to dispose of the matter. The basic object of service on defendant is to enable him to resist the claim, if so desired. In safe administration of justice the Process Servers play a pivotal role, as the reports/affidavits sworn by them on the back of notices become a source of make or break for the cases.

Therefore, they should take the pain and gather the exact information, inquire about the parties and in case of incomplete service, they are bound to follow the matter more than once in order to obtain proper service of the parties and should not wait for the fixed date of hearing and shall take the matter earlier much before the date fixed, so that proper and personal service of the parties could be obtained within time. The process servers are also required to note-down all these efforts in their reports with utmost care and professional sincerity. It is also the responsibility of Presiding Officers to look into the service effected by the Process Server and if necessary summon the concerned officials in order to inquire about the authenticity and correctness of effected

service and should keep vigilance on the concerned officials and their reports on the back of notices. In the instant case, the report of the Process Server reveals that he had personally served the process upon each of the defendant, however, the signature of the recipient on each summons is identical, which itself negates the version of the process server and, as such, the provisions of Order-5 Rule-15, C.P.C have been violated. Similarly, substituted service has not been done in compliance to the provisions of Order-5 Rule-20 of C.P.C nor, serving official has been examined.

As no personal service effected in the instant matter, nor procedure provided for service under the law has been followed, therefore, ex parte proceedings later on culminated into ex parte decree have not been passed in line with law.

6.It is also pertinent to mention here that the suit was filed by the plaintiff/respondent in the year 2010 and the defendants/respondents moved application for setting aside ex parte decree on 19.02.2014, and the plaintiff is suffering the agony of trial since long, therefore, in such scenario, the defendants are burdened with a cost of Rs.90,000/- (ninety thousand) to be paid by the defendants in proportionate share of Rs. 30,000/- per defendant/appellant to the plaintiff before the Trial Court on the first date of appearance or on adjourned date when ordered by the Trial Court.

7.For the aforementioned reasons, I allow this petition set aside the impugned order on payment of cost of Rs.90,000/-

payable by petitioners to the respondent within two weeks from the first date of appearance before Trial Court but not later than that and in case of failure the impugned judgment/order shall remain intact. The Trial Court is expected to decide the main suit expeditiously.

Announced.

Dt:14.04.2025. JUDGE Tufail./*

(SB)

Hon’ble Mr. Justice Muhammad Faheem Wali