' A civil suit titled as "Messrs Federation of Employees Cooperative Housing Society through its General Secretary v. Syed Sajjad Hussain Shah" for the recovery of Rs.17,16,500 as damages/ compensation, had been instituted by the respondent in the Court of learned Senior Civil Judge, Islamabad. The appellant was not served in the suit and vide order dated 8-2-1993 the ex part proceedings were conducted against him. Thereafter, the appellant, vide judgment and decree dated 30-5-1994, was proceeded against ex parte and the Court decreed the suit of the plaintiff- respondent. The appellant filed an application under Order 9, rule 13, C.P.C., for setting aside the ex parte decree which was contested by the present respondent. From the factual controversy appearing on the pleadings of the parties, the Presiding Officer of the Court led to frame the following issues:--
(1) Whether there are sufficient grounds to set aside the ex parte decree dated 30-5-1994?
(2) Relief.
2. The learned Senior Civil Judge, vide judgment and decree dated 6-4-2000 dismissed the application and maintained the ex parte proceedings/decree passed against the appellant.
3. I have heard the learned counsel for the parties and perused the record.
4. The ex parte proceedings against the appellant were initiated on 8-2-1993 on the ground that he has been served through registered envelope/acknowledgement receipt, a copy of which has been placed on record. Earlier to the said date, the case was fixed for 7-6-1992, whereby, the appellant was served through registered post for the said date but in spite of service,, through registered post, the appellant failed to appear in the Court and he was proceeded against ex parte. Thereafter, the case had been adjourned to 20-7-1992 and further summons were issued against the appellant and the case had been adjourning on different date for his presence and lastly ex parte order was passed against him on 8-2-1993, observing that the appellant had been served through registered post.
5. It would be appropriate to reproduce the provision of rule 10 of Order 5, C.P.C. Which envisaged that:- "(1) Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by courier service and registered post, Acknowledgement due, another copy of the summons signed and sealed in the manner provided in rule 10.
(2) An acknowledgement purporting to be signed by the defendant of the receipt of the registered communication or an endorsement by a courier messenger or postal employee that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service of summons."
' From the plain reading of the above-referred provision of law, it reveals that acknowledgement due should be received back in the Court to have been signed by the defendant. From the order sheet of the trial Court, it transpired that prior to 8-2-1993 the case was fixed for hearing on 15-12- 1992 and it was ordered that the defendant-appellant be summoned through registered post.
From the scrutiny of the record, it shows that no such registered post with A.D. Was issued to the appellant for 8-2-1993. The copy of the acknowledgement due annexed with the record shows that it was issued for 7-6-1992, whereafter, ex parte proceedings against the appellant were conducted but later on, he was again summoned through registered post and subsequently as observed above, no registered post was sent to the appellant nor any evidence is available on the record to establish that he was served through a fresh and subsequent registered post. It is also proved from the record that the process-server had been reporting that the correct address of the defendant- appellant had not been given, therefore, the service upon him without correct address could not be effected. This argument is strengthened from the report on the summons issued by the Court for 24-7-1992, 27-4-1992 and 20-7-1992 and it is admitted position that registered post was also sent on the same address of the appellant, for which, the process-server has reported that service without describing the number of house cannot be effected as "Chachi Mohallah, Wah Cantt." is a big locality.
6. In case of Zulfiqar v. Muhammad Jan, 2000 CLC 932, it has been, observed that the bare reading of the mandatory provisions Of Order 5, rule 19, C.P.C. Provides complete guidelines for the Courts and process-serving agencies. It says, that in all cases in which summons have been served under rule 16, C.P.C. The process-server shall require the signature or the person to whom the copy is so delivered or endorsed on the original summons his report thereon. There is no evidence on the record to prove that the postal employees had made report of refusal to summon by registered post/A.D. Or that the defendant-appellant had received registered envelope which would be deemed by the Court issuing the summons to be a prima facie proof of service of summons, as held in case of U.B.L. v. Messrs S.G. Rauf & Company PLD 1990 Kar.
312.
7. The trial Court without waiting for report of process-server on summons issued to defendant in ordinary way, proceeded mechanically, assuming that the registered envelope had been received by the defendant-appellant. The trial Court without being satisfied by assigning reasons that the appellant had,been served under postal certificate and without applying mind whether it was a proper and valid service upon the appellant, mechanically proceeded to pass order for taking ex parte proceedings against the appellant. Reliance can be placed to the case of Pervaiz M. Khan v.
MRs. A.H. Kishwar and another 1991 CLC No te .296 at p.226.
8. The object behind service through registered post was that the proceedings in the suit might continue and the same might not be defeated merely because the defendant could not be served or avoiding the process of the Court. Notice of proceedings was a basic right of party and ex parte proceedings could not be initiated against him unless the Court came to the conclusion that the party was served in a valid manner or that it has avoided the service. Reliance can be made to the case of WAPDA v. Ghulam Hussain 2000 CLC 530.
9. From the scrutiny of the evidence and the record, it is established that Court had not made any effort nor satisfied itself while proceeding against the appellant. The Court has failed to adopt service against the appellant through substituted mode of service as provided in rule 20 of Order 5, C.P.C.
10. A decree for the recovery of Rs.17,16,500 as damages/ compensation has been passed in favour of the plaintiff-respondent without providing an opportunity of being heard to the appellant and he has been condemned unheard in violation of principle of natural justice.
11. It is not the intention of the law to thwart the adjudication of a lis on mere technicalities of procedure. The law favours the decision of IE the cases on merits rather stifling the matters on fetish pleas.
12. This legal aspect of the case had not been adverted to by the lower Courts and when stich glaring illegality is pointed out to the High Court, this Court is fully competent to interfere with the findings of lower Courts and set at naught the judgment and decree passed by the same lower Court.
13. For the foregoing reasons, this appeal is accepted. The order/judgment and decree impugned herein dated 6-4-2000, dismissing the application of the appellant for setting aside the ex part decree is set aside. The application filed by the appellant is accepted. The ex parte proceedings dated 8-2-1993 and the judgment, and decree dated 30-5-1994 are also set aside. The case is remanded to the trial Court for decision afresh within a period of six months from the date of receipt of this order, after affording an opportunity to the parties for producing their evidence. No order as to costs.