MUHAMMD RAZA KHAN, J.---A suit was filed by Qayum Nawaz, Proprietor Afridi Variety Centre, for the recovery of Rs,16,825 being balance due against Muhammad Razam defendant/petitioner on account of purchase of 21" T.V. (LG) on installment basis. In this suit the process was issued to the defendant but there was no personal service where after as a result of substituted service, an ex parte decree was passed on 30-1-2001. An application for setting aside the ex parte decree was moved on 17-1-2004 with the request of condonation of delay on the grounds that the petitioner has not been served as he was working at Lahore. After getting reply from the Plaintiff/respondent the learned Civil Judge-V, D.I. Khan vide his order dated 10-5-2004 dismissed the said application.
This order was challenged before learned District Judge, D.I. Khan by the petitioner but his appeal was also dismissed on 17-3-2005. Hence this revision petition.
2. Learned counsel for the petitioner argued that the plaintiff/respondent had intentionally recorded a wrong address of the petitioner in the plaint and,' therefore, he could not be served and no information was communicated to him about the institution of the suit. He also pointed out that the service did not satisfy the legal requirement as the process server was not examined on oath and he has not given the boundaries of the house for substituted service. He pointed out that the process server has mentioned on the summons that service has been made on the son of the petitioner whereas the petitioner is still unmarried and so there was no question of having a son.
The learned counsel further /added that the petitioner got the knowledge of decree against him on 16-1-2004 when he was arrested during the proceedings of execution of decree and, therefore, the application for setting aside the ex parte decree was filed just thereafter. Hence from the date of knowledge the petition was not time-barred.
3. Learned counsel for the respondent explained that the arguments ,about the wrong address of the petitioner are without force because on the agreement of purchase of goods (on installment basis) the plaintiff/respondent has obtained both the residential and business address of the petitioner. In the agreement, the residential address was mentioned and since in those days the petitioner was having a business, therefore, the address of his shop was also recorded. The summons was issued to the residential address of the petitioner because, by then, he had abandoned the business, therefore, the residential address as recorded therein was the only last known address of the petitioner, hence issue of summons on the residential address was not an illegality. The learned counsel further added that the plaintiff/respondent had no intimation about the address of the petitioner at Lahore and even otherwise he has not proved the shifting of his residence from D.I. Khan to Lahore. With regard to the substituted service, the learned counsel replied that the process server has complied with legal requirement and has furnished an affidavit accordingly.
4. Perusal of the record indicates that the petitioner was not served personally Ex parte decree for recovery of money, based on substituted service, is not encouraged. Instead of delaying the matter by the rejection of the application, the learned Court should have allowed the petition on payment of cost and decided the matter on merits, particularly when the service of process was defective and compliance of the amended provision of law was omitted, therefore, I am of the view that the petitioner be provided opportunity to contest the suit on merits.
5. However, before finalizing the finding I have to point out two factors which are necessary for disposal of such-like suits. The scheme of the C.P.C. Contained in Order V, originally provided for the service of summons through process serving agency and on the failure to serve the process on the defendant, different means of substituted service could be put to action. However, Order V, C.P.C.
Was amended and Rule 10-A, C.P.C. Was inserted in 1972 which provides that:-- "Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgment due, another copy of the summons signed and sealed in the manner provided in rule 10. An acknowledgment, purporting to be signed by the defendant on the receipt of the registered communication, or an endorsement by 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."
The purpose of this amendment was the adoption of an alternative procedure for the service of summons in transparent and expeditious manner. Normally it is considered to be an alternative process that when the service of summons through normal channel is either not possible or the defendant resides beyond the territorial limit of the district, the process is issued through registered AD. Whereas the word "simultaneously", in the beginning of rule 10A indicates that both the modes should be undertaken simultaneously irrespective of the fact of the residence of the defendant. In the Province of Punjab this provision has further been enhanced to include the simultaneous service of process through courier service etc. In the N.-W.F.P. Rule 10A of the Order V, C.P.C. Has to be strictly complied with. Had it be done, the simple suit for recovery Rs,16,825 should not have prolonged for four and a half years.
6. Another important procedure that is normally overlooked is the adoption of summary procedure in simple matters. Section 128(2)(t), C.P.C. Provides for the summary trial of the cases like:--
(i) money suits with or without interest, arising of a contract, express or implied;
(ii) money suits based on a statute;
(iii) money suit based on a guarantee;
(iv) suits for recovery of money arising out of trust;
(v) suits for recovery of immovable property by landlord against the tenant on the expiry of term or on notice to quiet;
(vi) suits for possession of immovable property on the forfeiture of tenancy on non-payment of rent; and
(vii) suits for possession of immovable property by landlord against the persons claiming under the tenant.
7. The summary procedure can be adopted initially by summons under Rule 5 of Order V, C.P.C. For the final disposal of the suit by using the special form for the purpose. After the service of summons for final disposal of the summary procedure prescribed in Order X and F Order XV, C.P.C. Shall be helpful in expeditious disposal of simple matters either on the first day of hearing or at the adjourned date, if needed. The parties shall be required to produce all the evidence on the first day of hearing.
8. The case in hand a simple suit for recovery of unpaid balance amount of installment for the purchase of a colour T.V., and the proof in the farm of the execution of contract of hire-purchase, the payment of installment already made, the adjustment in any other form or the termination of contract shall be required. The matter can be decided in one or two hearings. Such type of matter can also be referred to the Alternate Dispute Resolution (ADRs) provided under section 89 A read with rule of Order X, C.P.C. The issue can be resolved through mediation and arbitration. The time has come to adopt the alternate means of dispute resolution for expeditious disposal of the cases to avoid delays during conventional litigation process. The law has simply provided for the reference of cases to alternate means and such provision can be properly applied through the consent of the parties. The enforcement of Small Claims and Minor Offences Courts Ordinance, 2002 is a further step to implement the concept of the application of ADRs whereunder any claim up to Rs,1,00,000 must be referred to the "Salis" who has to give his view-point within prescribed period. After the availability of proper arrangement, such simple matters can be referred to the "Salis" for quick disposal, however, the principles of the said Ordinance can be applied in simple matters with the consent of the parties under the above provision of C.P.C. as well.
9. With these observations this revision petition is accepted on payment of Rs,3000 as cost, the ex parte proceedings against the petitioner are set aside and consequently the impugned orders of both the Courts are also set aside. The learned trial Court may try to decide the case in a summary manner as indicated hereinabove.