JUDGMENT SYED SAJJAD HASSAN SHAH, J.---Habib Gul, the appellant has filed the instant appeal against the judgment and order dated 12-11-2009 passed by the learned Civil Judge/Illaqa Qazi Dargai, whereby, the application of the appellant for setting aside the ex parte decree dated 21-10- 2008 was dismissed.
2. Brief facts of the case are that the plaintiff/respondent No:1 filed a suit against the petitioner as well as 8 others, seeking the recovery of Rs.20,27,000. The defendant/appellant along with the respondents Nos.2 to 9 (herein) impleaded as defendants in the plaint. The summons and registered post, acknowledgement due, issued for procuring the attendance of defendants by the learned trial court at their given address on 2-2-2007 till 24-2-2007, the service of the respondent No.1/ appellant could not be procured, thus, the same process again repeated for the date fixed i.e. 22-3-2003. However, once again the summons repeated to procure the attendance for a date fixed as 14-5-2007, but on account of note Reader; the case was adjourned for 14-5-2007. Again, the learned trial court directed that the defendant No.1 be summoned through Civil Judge Takht Bhai and also through registered post for 6-6-2007 without having been received the summons as well as any report in respect of service of summons by the said court, as provided under the law. The learned trial court on 6-6-2007, passed an order that the service of defendant No. 1/appealant could not be procured, even the process against the defendant issued repeatedly, thus, the order of proclamation be made for the service of the defendant No .1/appellant.
After receipt of publication as was directed by the learned trial court, the defendant No.1/appellant proceeded ex parte, whereas, the rest of the defendants were directed to file their written statement. Pursuance thereto, defendants Nos.2 to 9 filed their cognovit on 20-7-2007. The matter was posted for reconciliation proceedings as well as framing of issues. The list of witnesses filed on 18-9-2007 and the proceedings adjourned to 24-10-2007 for recording the evidence of plaintiff.
After recording the evidence, the suit for recovery of Rs.20,27,000 was decreed against the petitioner. As the plaintiff/respondent No.1 requested the court that he has no cause of action against the defendants Nos.2 to 9 (who filed the cognovit), therefore, no decree passed against the defendants Nos.2 to 9.
An application moved on 20-1-2009 to set:aside the ex parte decree. As averred by the defendant No.1/appellant that he acquired the knowledge of ex parte, decree on 12-1-2009. He was not served in any manner nor got the knowledge of ex parte decree. The respondent No.1/plaintiff contested the application by filing replication. Vide impugned judgment and decree, the application was dismissed.
3. The learned counsel for the defendant No.1/appellant contended that the learned trial court has passed the order for issuance of proclamation in press without fulfillment of the prescribed requirements under the law for the personal service of the defendant, therefore, the ex parte order was passed without jurisdiction and against the law. He further argued that the defendants Nos.2 to 9 admitted the claim of plaintiff/respondent No.1 by filing their cognovit. Consequent upon such admission, they were relieved to burden with the alleged disputed amount. This fact is per se sufficient to conclude that the ex parte decree passed against the relevant provisions of law. The learned trial court unlawfully and illegally passed the ex parte decree against the defendant No.1/appellant for the recovery of Rs.20,27,000, which decree not tenable under the law.
4. The learned counsel for the respondents wi file rebutting the arguments of learned counsel for the defendant No. 1/appealant argued that the defendant No.1/appellant was in the knowledge of the pendency of the suit and aware of the ex parte decree but did not appear to contest the suit of plaintiff/respondent No.1. He further contended that the application filed by the defendant No.1/appellant was time-barred and being without lawful reason, therefore, same may be dismissed.
5. The arguments of the learned counsel appearing on behalf of the parties considered. Record carefully perused.
6. It transpires from the perusal of record that the learned trial court failed to observe the provisions contained in Order V, of the C.P.C., as it is the command of law that all the provisions of Order V, must be adhered to in their letter and spirit and all efforts be made to procure the personal attendance of the defendant. The spirit of Order V of the C.P.C., that before resorting to the provisions of Rule 17 of Order ibid the court shall observe the requirements regarding the personal service of the defendant, without taking step to procure the personal service, the rest of the exercise in this respect would not be considered as lawful. However, the court shall record the reasons for its satisfaction and then proceed to direct the publication in the press, etc. But in the instant case, the learned trial court directed to issue the publication in the press without awaiting the, receipt of the process sent for the service of the defendant to the Civil Judge Takht Bhai.
Moreover, nothing is available on the record that the serving officer was examined by the court to the effect that he was failed to procure the service of defendant and the report submitted was correct, whereupon, further process directed to initiate the substituted service. In this respect, reliance placed to a case titled Syed Muhammad Anwar, Advcoate.v. Sheikh Abdul HaQ, reported as 1985 SCM R 1228 while dealing with an identical situation held as under:-- Civil Procedure Code (V of 1908)- ---0. V, Rr. 17, 20 & 0. IX, R, 13, proviso---Ex parte decree--- Setting aside of---Service of summons- - Application for setting aside ex parte decree filed after period of limitation---Court ordering substituted service on defendant having formed opinion that it was not possible to have defendant served in ordinary way--Opinion not supported on basis of record---Failure to record finding about defendant's keeping out of way for purposes of avoiding service---Ordinary ways of service summons not resorted to-Irregular service of 'summons not to be treated as "due service" for purposes of Limitation Act, 1908- Proviso to O. IX, R.13, C.P.C. Not to cover illegality in service of summons-Defendant having no knowledge of date of hearing when ex parte decree was passed against him, belated application for setting aside ex parte decree, held, not time-barred--- Supreme Court allowing defendant's appeal, setting aside High Court's order passed. In revision petition, and restoring order of trial court by which ex parte decree was set aside---Parties directed to appear before trial court.
7. If it appears to the court that the defendant had the knowledge of the date of hearing, sufficient time to appear and answer the claim preferred against him. The court could infer that even an irregular service of summons be treated as due service. There is nothing on record to ascertain that the defendant was in the knowledge of date of hearing when he was proceeded ex parte, therefore, in such circumstances, it could not be held that the defendant was duly served.
8. The ex parte decree was passed under Order IX, Rule 6 of the C:P.C. Where the plaintiff appeared and the defendant did not appear, when the suit was called on for hearing. If it is proved that the summons are duly served, the court may proceed ex parte and can pass a decree without recording evidence. But when summons not duly served, then the court shall direct 2nd summons be issued and served on the defendant.' The scheme of the law is that, if all efforts for personal service have failed then the substituted service should be made and after being fulfilled the requirements of law relating to the service of summons then the court may pass ex parte decree.
But where the due service could not be made, no order of ex parte decree can be passed against the defendant.
9. The provision contained in Rule 13 of Order 9 of the C.P.C. Relating to setting aside the ex parte decree against the defendant, much emphasis laid down on due service of the defendant and if the court was satisfied by the defendant that the summons not duly served and he was prevented by any sufficient cause for appearing when suit was called on for hearing, the order shall be made for setting aside the ex parte decree. Upon such terms, as to cost as deemed proper.
10. There is nothing on record in order to substantiate the assertion of the plaintiff/respondent No.1 that the defendant No.1/appellant was duly served, whatever, the material brought on record not sufficient to hold that the defendant No.1 / appellant was duly served and ex parte decree was passed inconsonance with the prescribed provisions of law. However, the defendant No. 1/appellant had pointed out certain circumstances, whereby, it appeared that he had not been duly served, as such ex parte decree passed against the appellant in violation of mandatory provisions of law, thus, liable to be set aside.
11. In view of the above discussion, the impugned judgment and order passed by the learned trial court being not in accordance with law, the result of misapplication, misinterpretation of law and passed without there being proof of due service, therefore, not maintainable. The instant appeal is accepted and the ex parte decree is, hereby, set aside, however, the defendant No.1/appellant shall pay a sum of Rs.10,000 as costs to the plaintiff/ respondent No.1 on the first date of appearance in the learned trial court. The learned trial court is directed to decide the suit within a period of two months from the date of receipt of record. The office is directed to send the record as early as possible to the court concerned.