2024 C L C 907
[Lahore]
Before Muhammad Raza Qureshi, J
REHAN IQBAL----Petitioner
Versus
ABDUL HAQ and 2 others----Respondents
Writ Petition No.70519 of 2022, heard on 22nd June, 2023.
(a) Civil Procedure Code (V of 1908)---
----O.V, Rr.16, 17, 18, 21 & 23---Summoning of defendant(s)---Due service---Substituted service---Question was whether the petitioner/defendant was ever served in accordance with law---After receipts of registered post A.D. were presented the Trial Court ordered publication in the newspaper on the basis that he (defendant) could not be served through summons; subsequently ex-parte judgment / decree was passed against the defendant---Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside---Validity---Admittedly, in the present case, the summons issued to the petitioner/defendant was never returned with any report, whereas, though receipts of registered post A.D. were presented but the Trial Court never received back the card of A.D., therefore, the order of the Trial Court that he (petitioner/defendant) could not be served through summons appeared to have been passed in betrayal of mandate of law and it seemed that the Trial Court failed to exercise its jurisdiction in accordance with law---First obligation of the Trial Court was that if it had noticed that the petitioner/ defendant was resident of another district, the safest mode should have been to follow the provisions of O.V, Rr.21 & 23 of the Civil Procedure Code, 1908 ('C.P.C'), which provided that if defendant resides within the jurisdiction of another Court, the summons shall be sent by the Court by which it is issued either by one of its officers or by post to any Court having jurisdiction in the place where the defendant resides---Under R.23 of O. V of the C.P.C., the Court to which summons is sent under R.21 shall, upon receipt thereof, proceed as if it has been issued by such Court and shall then return the summons to the Court of issue, together with the record of its proceedings with regard thereto---Relevant order passed by the Trial Court having been analyzed in the light of said provisions of law, it was observed that while issuing the summons to the petitioner/defendant, those provisions were overlooked by the Trial Court, which upon non-return of summons sent by the issuing Court and non-receipt of A.D. was sine qua non for the service of petitioner/defendant---Failure of the Trial Court to follow the mandate contained in provisions of O. V, Rr. 21 & 23 of the C.P.C. had serious consequences and order for issuing substituted service through publication was nullity in the eyes of law---Provisions of Rr.16, 17 and 18 of O. V of the Civil Procedure Code, 1908, were also ignored by the Trial Court as the said provisions are not illusory and it is bounden duty of the Court to ensure substantial compliance of these provisions before directing substituted service as unless provisions contained in Rr. 16, 17, 18, 21 and 23 are not satisfied, the order for substituted service under O. V, R. 20 of the C.P.C. is nullity in the eyes of law as the Court for the said purpose has to satisfy itself that all the efforts to effect service in the ordinary mode have failed---Non-adherence to the mandatory provisions renders the process of service through publication invalid and edifice built upon it automatically falls down---Adherence and observance to these provisions is mandatory as due service is the first fundamental right of every litigant, who is to defend his cause before the court of law, therefore, it is not only a formality but a matter of importance that the provisions are duly complied with---District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O. V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential---High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree---Constitutional petition filed by the defendant was allowed, in circumstances.
Rana Jahangir Khan v. Manzoor Ahmad PLD 2012 Lah. 204; Yaqoob Ali through L.Rs. and others v. Muhammad Ayub and others PLD 2021 Lah. 678 and Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 ref.
(b) Civil Procedure Code (V of 1908)---
----O.V, Rr.16, 17, 18, 21 & 23---Summoning of defendant(s)---Due service---Substituted service---Scope---Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside on the basis that the substituted service was as effective as personal service and the Court might on the failure of defendant to appear when the suit was called for hearing proceed with the hearing of the suit ex-parte as substituted service had always been equated with that of due service----Validity---District Court failed to advert that the effectiveness of service could only be presumed authentic if either record or order reflected that the provisions of O.V of the Civil Procedure Code, 1908, in relation to service of summons or through registered A.D. had been duly complied with---Remedy of substituted service could be resorted to only if the court was satisfied that there was a reason to believe that the other side was shying out only to avoid the service---District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O.V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential---High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree---Constitutional petition filed by the defendant was allowed, in circumstances.
Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316 ref.
Moiz Tariq for Petitioner.
Syed Muhammad Shah for Respondents.
No comments:
Post a Comment