MIAN HAMID FAROOQ, J.---The respondent instituted the suit for recovery of Rs.2,00,000, against the appellant/defendant, before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C. On the basis of promissory note dated 22-5-2002. The learned trial Court issued summons to the defendant, however, he could not be served. Resultantly, proclamation in the newspaper i.e. Daily "Surat-e-Hal" Faisalabad, was effected for the service of the defendant arid as he did not appear, therefore, he was proceeded ex parte on 29-4-2004. The learned Additional District Judge recorded evidence of the respondent and proceeded to pass an ex parte decree against the defendant with costs, vide judgment and decree dated 2-7-2004. The appellant, then, filed the application for setting aside the aforenoted ex parte decree, inter alia, pleading that he was never served in the suit, he had no information about the institution of the suit and that no registered envelope was ever received by him. The application was opposed by the respondent through the reply, thereby asserting that the appellant was served in accordance with law.
Therefore, the decree be maintained. The learned trial Court, after hearing the parties, dismissed the said application, vide impugned order dated 18-2-2004, hence the present appeal.
2. Learned counsel for the appellant contends that the appellant was never served and summons were sent and proclamation was made on the wrong address, therefore, there is no service in the eye of law. Contrarily, the learned counsel for the respondent submits that many notices, as required under Order XXXVII, C.P.C., through ordinary process and by registered post were issued to the appellant, but he refused to accept the same and then the learned trial Court ordered for the publication of the summons in the newspaper and thereafter ex parte decree was passed. He adds that as the appellant deliberately avoided to appear in the suit, therefore, the learned trial Court rightly passed the ex parte order and decree impugned in this appeal.
3. I have heard the learned counsel and examined both the records. Record of the suit manifests that though requisite notices were issued to the appellant as provided under Order XXXVII, C.P.C.
However, none was served upon the appellant. It was reported on the summons issued on 23-2- 2004 that the appellant was not available, therefore, the summons could not be served. Report on the summons issued on 15-3-2004 shows that the appellant refused to receive the summons and it was reported that the notices have been served on refusal ( ). Summons by registered post, were also not served and registered envelops were returned to the Court. The learned trial Court, on 5-4-2004, after finding that the appellant refused to receive the summons, directed that he be served through publication in the newspaper, i.e. Daily "Surat-e-Hal" Faisalabad. The publication was made in the newspaper on 19-4-2004 and the learned trial Court on the basis of said publication, on 29-4-2004, proceeded to pass an ex parte decree against the appellant.
4. I have thoroughly examined the proclamation made in the newspaper and find that the summons were not published as required under Order XXXVII, rule 2(1), C.P.C., as they are not in Form-4, Appendix-B to the Code of Civil Procedure, 1908. The said publication was made under the provisions of Order V, rule 20 and not under Order XXXVII, rule 2(1), C.P.C. It is pertinent to note here that in the said summons, it was neither indicated that summary suit has been filed by the respondent nor the appellant was called upon to file the application for leave to appear and defend the suit within a period of ten days as prescribed 'under the law. In view whereof, to my mind, the summon was not published in the newspaper as prescribed in Form-4, Appendix-B to the Code of Civil Procedure, 1908 and therefore all the ensuing proceedings based on the said publication are of little consequence. It cannot be held on the basis of the proclamation in the newspaper that either the summons were validly published as per the requirement of law or the appellant was legally served. The learned Additional District Judge, on 29-4-2004, while proceeding ex parte against the appellant, did not advert to this crucial aspect of the case and failed to take notice that the summons were not published as required under the law. It appears.
That the learned Court, after finding that the publication was made,, proceeded to pass ex parte order in routine and without applicaLim of judicial mind. The appellant could not have been proceeded ex parte on the basis of the publication in the newspaper nor any decree could be passed against him. It may be noted that even when the appellant filed the application for setting aside ex parte decree, the learned Additional District Judge ignored to consider this legal proposition and hastened to dismiss appellant's application only on the ground that "despite substituted service by way of proclamation in the newspaper the petitioner/ defendant/judgment-debtor did not bother to give appearance in the Court". He was oblivious of the fact that the summon was neither duly published nor served and thus he failed to apply judicial mind.
5. It has been held above that the summons was not legally published in the newspaper and the appellant was not properly served, therefore, all the subsequent proceedings have no value, as the superstructure made on a void order falls to the ground. I find support from the principle of law laid down in the case of Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 that:-- "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
4. In the above perspective, I have examined the impugned order dated 18-12-2004 and find that the same is not sustainable in law. The learned Additional District Judge, in the first instance, should not have passed the ex parte decree on account of aforenoted grave legal infirmity and if he had passed the decree, then, on being filing the application for setting aside ex parte decree, he ought to have acceded to the request of the appellant, as it was legal and justified.
5. In view of the above, the present appeal is decided in the following terms/manner:--
(i) The appeal is allowed.
(ii) Impugned order dated 18-12-2004 is set aside.
(iii) Appellant's application for setting aside ex parte decree is also accepted and resultantly, ex parte decree dated 2-7-2004 is also set aside.
(iv) Respondent's suit for recovery shall be deemed to be pending before the learned District Judge, Jhang.
(v) The appellant is allowed to file application for leave to appear and defend the suit within a period of 10 days from today before the learned District Judge.
(vi) If the said application is filed by the appellant, as noted above, the learned District Judge shall decide the same after hearing the parties and of course in accordance with law.
(vii) The learned District Judge, after deciding the leave application, shall decide the suit in accordance with law, if need arises.
(viii) If the appellant chooses not to file the said application within the prescribed period, needless to add that law will take its own course.
(ix) No order as to costs.