' SHAHZAD AKBAR KHAN, J.---This Constitutional petition is meant to call in question the orders, dated 31-1-2002, 15-2-2000, 2-9-1999 and 20-3-1999 recorded respectively by the learned Member Board of Revenue, N.W.F.P., Additional Commissioner Kohat, District. Collector Kohat and the Revenue Officer with powers of Assistant Collector Kohat.
2. The synoptical sketch of facts relevant for the decision of the instant controversy is that respondent No.1 Ali Badshah had filed an application for partition of suit-land against the petitioner in the Court of Tehsildar on 18-7-1996. The petitioner was proceeded ex-parte. He therefore, submitted an application for setting aside the ex parte proceedings order, dated 23-10-1996. The Assistant Collector Kohat rejected the application of the petitioner on 20-3-1999. Such rejection was followed by the filing of an appeal before the District Collector, who also dismissed the appeal on 2-9-1999. A revision petition preferred before the Additional Commissioner concerned could also not earn any success and was dismissed on 15-2-2000 obliging the petitioner to file another revision before the Board of Revenue which too was dismissed on 31-1-2002.
3. Haji Muhammad Zahir Shah, Advocate learned counsel appearing for the petitioner has vehemently argued that all the impugned orders are illegal and liable to be set aside. He contended that the petitioner was never served in accordance with law and the ex parte order was made in haste and without complying the relevant provisions governing the subject of effecting service on a party. The learned counsel took us to the relevant order sheets and pointed out that on 13-8-1996 a notice was directed to be issued to the petitioner and thereafter on 4-9-1996 straightaway an order for the substituted service through affixation "{{URDU TEXT}}" was ordered and on 24-9-1996 a publication in the name of the petitioner was ordered. Assailing the legality of the above referred orders he contended that the provisions of Order V Rule 20 of the Code of Civil Procedure was entirely ignored. He contended that stepping towards the substituted service is controlled by Rule 20 of Order V of C.P.C. But the learned trial Court failed to abide by the said provision of law. This feature of the case was totally overlooked by all the fora in the hierarchy.
4. On the other hand, Mr. Pir Bakhsh Mehtab, Advocate learned counsel appearing for the respondents has endeavoured to defend the impugned orders arguing that the petitioner deliberately avoided the service of process and his overall object was to, prolong the litigation.
5. We have considered the rival contentions of the counsel for the parties in the light of the record.
The contentions of the learned counsel for the petitioner are well grounded and enjoy the support of the record. The best specie of service is the personal service of a party and in case it becomes impossible then recourse to the substituted service has to be made by the Court. Rule 20 of Order V of the C.P.C. Provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, then the substituted service is to be resorted to. A plain reading of this provision of law indicates that recourse to the substituted service is subject to the satisfaction of the Court on the existence of the reasons making it difficult to effect the personal service. Satisfaction must be substance oriented, based on the report or statement of the Process Serving Official and shall not be an abstract presumptive feeling of a judicial officer. The order sheets that we are confronted with nowhere indicate that the petitioner (being defendant) was keepin out of the way for the purpose of avoiding service. Neither any report of the Process Server has been referred to by the trial Court nor his statement appears to have been recorded. In such a situation the order of substituted service through `Chaspangi' {{URDU TEXT}} or publication in the press has no mandate of law. Another significant feature of this case is that the publication was not made in a daily newspaper but was made in a weekly pamphlet namely "Uqaab" which has no significant circulation and publication in a newspaper of insignificant circulation cannot justify ex parte proceedings.
' In the above circumstances it cannot be said that there was a proper service of the petitioner about the proceedings initiated by the respondents against him and as such the ex parte proceedings were wholly unjustified which reflect the vitiating element of audi alteram partem in the proceedings against the petitioner. On the facts and circumstances narrated above we hold that the impugned orders are not tenable. We, therefore,. Allow this writ petition and all the orders impugned are declared without lawful authority and are therefore, struck down. The case is remitted to the original Court where the petitioner shall be allowed to participate in the proceedings.