Naeemur Rehman vs Hayatullah

2014 C L C 234

[Peshawar]

Before Qaiser Rashid Khan, J

NAEEMUR REHMAN and others----Petitioners

Versus

HAYATULLAH and another----Respondents

Civil Revision No.1716 of 2011, decided on 6th September, 2013.

(a)Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Specific Relief Act (I of 1877), S.42---Suit for declaration---Application for setting aside ex parte decree---No summons issued to defendant by the Trial Court---Summons in a suit had to be issued to the defendant to procure his attendance and reply to the claim---Fact that service of the defendant was not possible through ordinary means was not borne out from the record---Substituted service was to be made where the court was satisfied that there was reason to believe that defendant was keeping himself out of the way for the purpose of avoiding service or for any other reasons the summons could not be served in the ordinary way---Nothing was on record that defendant was avoiding service which prompted the Trial Court for substituted service---Such hasty arrangement made by the Trial Court was not only in derogation to law and procedure, but in such process, a person was also deprived of his right of defence--- Publication in a Newspaper should be made as a last resort for the purpose of service of defendant---Other defendants did not appear to be serious contenders except the applicant who was placed ex parte in a rather hasty manner though he died during the pendency of suit---Legal heirs of the applicant were not brought on record---Entire exercise was conducted in order to deprive applicant of his right of defence---Impugned judgments and decrees of both the courts below were set aside and application for setting aside ex parte decree was accepted and case was remanded to the Trial Court for decision on merit---Revision was accepted accordingly.

(b)Civil Procedure Code (V of 1908)---

----O. V, Rr. 10, 12, 16, 17 & 20---Modes of service---Substituted service---Modes---Three modes of service of summons for personal service: Service by affixation of summons and substituted service; service by affixation of summons to be resorted to when personal service was

not possible and substituted service of the defendant should be made as a last resort and not by bypassing the first two modes of personal service and service by affixation---Substituted service was to be made where the court was satisfied that there was reasons to believe that defendant was keeping out of the way for the purpose of avoiding service or for any other reasons the summons could not be served in the ordinary way.

Asghar Ali for Petitioners.

Peer Bakhsh Mahtab for Respondents.

Date of hearing: 6th September, 2013.

JUDGMENT

QAISER RASHID KHAN, J.--- Through the petition in hand, the petitioners have called in question the judgment and order dated 12-2-2011 and judgment and decree dated 30-9-2011 of the learned Civil Judge-II Lahor, District Swabi and learned Additional District Judge, Lahor Swabi, respectively.

2.Precise facts leading to the filing of the instant petition are that the respondents had filed a declaratory Suit No.97/1 before the Civil Judge, Lahor District Swabi on 13-11-2003 against 42 persons including Jamal Khan (defendant No.27), predecessor-in-interest of the petitioners in respect of the suit property whereafter Jamal Khan was placed ex parte and finally ex parte decree was passed in favour of the respondents/plaintiffs against the defendants in that suit way back on 17-12-2009. Thereafter the petitioners filed an application for setting aside the ex parte decree. The said application was dismissed and the appeal preferred thereagainst also met the same fate, hence the present petition.

3.The learned counsel for the petitioners argued that the petitioners have been condemned unheard; that no summons was issued in the name of Jamal Khan, predecessor-in-interest of the petitioners and in a summary manner, the learned trial Court had directly ordered for publication in a local daily, whereafter the said Jamal Khan was placed ex parte; that except Jamal Khan (defendant No.27) both the respondents/ plaintiffs as well as the other defendants had colluded to deprive the petitioners from their valuable property and to this effect the learned counsel for the petitioners made reference to the cognovit submitted by some of the defendants before the learned trial Court. The learned counsel for the petitioners also referred to the statement of D.W.2 namely Faizullah son of Shafiullah, who fully supported the stance of the respondents/plaintiffs, though he along with his brothers were defendants in the main suit.

4.The learned counsel for the petitioners argued that the learned trial Judge displayed haste in directly going for substituted service of late Jamal Khan, which is violation of Order V, Rule XX, C.P.C.; that despite the fact that Jamal Khan had died during the pendency of the suit, still the respondents/plaintiffs intentionally did not bring on record his L.Rs., so as to get an ex parte

decree in their favour. He thus prayed for setting aside the impugned judgments/orders as well as setting aside the ex parte decree and directing the learned trial Judge to allow the petitioners to contest the main suit.

5.The learned counsel for the respondents on his turn defended the impugned findings of both the courts below on almost the same grounds as detailed therein.

6.Arguments heard and record perused.

7.The petition in hand has a chequered history spanning over a period of ten years. As evident from the record, the respondents/ plaintiffs filed a declaratory Suit No.97/1 on 13-11- 2003 in respect of the suit property, detailed in the plaint, against 42 persons including Jamal Khan son of Salahuddin, predecessor -in-interest of the petitioners.

8.Despite a careful perusal of the record, I have not been able to find a summons issued in the name of late Jamal Khan by the learned trial Court. It goes without saying that once the suit has been instituted before a court, then summonses have to be issued by the orders of the learned trial Judge to the defendant in order to procure his attendance and in turn to furnish his reply to the claim. This is what Order V, C.P.C. is all about i.e. "Issue and Service of Summons". Similarly Order V, C.P.C. provides for three modes of service (i) Personal service as per Order V, Rules 12 and 16, C.P.C. (ii) Service by affixation as provided under Order V, Rule 17, C.P.C. and (iii) Substituted service as per Order V, Rule 20, C.P.C. Thus it is most obvious that service by affixation shall only be resorted to when personal service under Order V, Rules 10, 12 and 16, C.P.C. is not possible. By the same corollary, recourse to substituted service of the defendant shall be made as a last resort and certainly not by bypassing, the first two modes of "personal service" and "service by affixation". This is what the intent, purpose and of course the all pervading wisdom of the Rules referred to above is. How the learned trial Judge (order sheet No.7 dated 26-2-2004 referred) came to the conclusion that service of the defendant was not possible through ordinary means is not borne out from the record. The same leaves much to be desired at the learned trial Court's end and that too, when the explicit language of Order V, Rule 20, C.P.C. regarding "substituted service" is "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 other reason the summons cannot be served in the ordinary way. In the instant case, there is nothing on record to suggest that late Jamal Khan was avoiding service which in turn prompted the learned trial Court for substituted service through publication in daily 'Aaj' Such hasty arrangement made by the trial Court was not only in derogation to law and procedure, but in the process a person was also deprived of his lawful and legitimate right of defence. This court cannot lose sight of the fact that publication in a Newspaper should be made as a last resort for the purpose of service of the defendant and that too, in view of the fact that common folk in the villages have little access to the newspapers, illiteracy being the most dominant factor.

9.Another interesting or rather intriguing feature of the case is that barring late Jamal Khan (placed ex parte by the learned trial Judge), the other defendants did not appear to be serious contenders. Some of them on being placed ex parte never turned up to challenge the ex parte proceedings in the first hand and the ex parte decree thereafter. Still other defendants filed cognovit before the learned trial court supporting the stance of the respondents/plaintiffs. From the entire scenario late Jamal Khan (defendant No.27 in the main suit), emerged as a serious contender, who was in turn placed ex parte in a rather hush-hush manner and even when he died during the pendency of the suit, still the respondents/defendants did not bother to bring his legal

heirs on record. This per se points to the fact that the entire exercise was conducted in order to deprive the petitioners of their legal and legitimate right of defence. Even during the course of recording of evidence as a consequence of application filed by the petitioners for setting aside the ex parte decree, D.W.2, Faizullah son of Shafiullah (defendant No.5) in the main suit, offered full fledged support to the respondents.

In view of the foregoing discussion, this petition is allowed, the impugned judgment/order dated 12-2-2011 passed by the learned Civil Judge-II Lahor, Swabi and the judgment/decree dated 30-9-2011 of the learned Additional District Judge, Lahor, Swabi dated 30-9-2011 are set aside, accordingly the application of the petitioners dated 7-6-2010 for setting aside the ex parte decree dated 17-12-2009 is accepted and the case is remanded to the learned trial Court to decide the case on merits after affording full opportunity to the parties to contest the suit titled "Hidayatullah v. Barkatullah". Parties are left to bear their own costs.

AG/566/P Petition accepted.