' CH. SHAHID SAEED, J.---Brief facts giving rise to the instant writ petition are that respondent No,3 filed a suit for recovery of Rs,4,00,000 against the petitioner in which service of the petitioner was not properly effected and ultimately the same was ex parte decreed against the petitioner vide judgment and decree dated 16-1-2007. Petitioner moved an application during the execution proceedings to set aside the ex parte decree and the application was contested by respondent No,3. Learned trial court after hearing both the sides at length dismissed the said application vide order dated 27-1-2010. The said order was challenged by the petitioner through revision petition which was allowed subject to payment of cost of Rs,5,000 by the learned Additional District Judge, Phalia vide order dated 27-4-2010. Feeling aggrieved by the said order respondent No,3 filed a Writ Petition No,12345 of 2010 before this court which was disposed of with a direction to the learned trial court to decide the application of the petitioner under Order IX Rule 13, C.P.C. Within one month strictly in accordance with law.
2. After the direction given by this court the learned trial court framed the issues on the application filed by the petitioner for setting aside the ex parte decree. Evidence of both the parties was also recorded and ultimately learned trial court again dismissed the application of the petitioner on merits vide judgment dated 30-9-2010. Petitioner preferred a Revision Petition against the said order which also met with the same fate by the learned Revisional Court vide judgment dated 3- 10-2011. Having dissatisfied by both the judgments of the courts below petitioner has filed the instant writ petition.
3. Learned counsel for the petitioner contends that the impugned judgments passed by the courts below are illegal, unlawful, without jurisdiction and against the basic concept of safe administration of natural justice. Further argued that the impugned judgments suffer from illegalities and material irregularities. That in the Writ Petition No,12345 of 2010 the only prayer of the respondent No,3 was to set aside the order passed by the learned Revisional Court; that the respondent No,3 by concealing the material facts from this court fraudulently obtained the order dated 9-6-2010 by giving a wrong statement, in which a direction was given to the learned trial court to decide the application of the petitioner under Order IX Rule 13, C.P.C.; that when the said direction was given by this court no application was pending before the learned trial court because the same has already been dismissed and thereafter the same was allowed in Revision Petition subject to cost of Rs,5,000. Learned counsel further maintained that in the earlier order passed by this court the order of learned Revisional court was also not set aside. On merits learned counsel for the petitioner argued that the ex parte decree passed against the petitioner was also the result of fraud and misrepresentation because service of the petitioner was not properly effected and upon the bogus report of the Process Server the ex parte decree was passed against the petitioner which is not sustainable in the eye of law.
4. On the other hand, learned counsel for the respondent No,3 argued that after the direction passed by this court the application under Order IX Rule 13, C.P.C. Was decided afresh by the learned trial court after recording the evidence of both the parties; further argued that both the courts below have rightly dismissed the application of the petitioner because petitioner was well aware about the pendency of the suit and intentionally he did not appear before the learned trial court; that the service of the petitioner was properly effected as per law laid down in Civil Procedure Code.
5. Arguments heard. Record perused.
6. The main stance of the petitioner was that the respondent No,3 made a wrong statement before this court in earlier Writ Petition No,12345 of 2010 by giving the impression that the application of the-petitioner under Order IX Rule 13, C.P.C. Is pending before the learned trial court and obtained the order dated 9-6-2010 by concealing the material facts. The said contention of the petitioner is without substance because the order passed by this court is self explanatory in which a direction was given to the learned trial court to decide the application of the petitioner under Order IX Rule 13 afresh because earlier the same was decided without framing the issues. The second contention of the petitioner was that the order passed by learned Revisional Court in the earlier round of litigation is still existing because the same was not set aside by this court in order 9-6-2010 is also without any force because when this court issued a clear direction to the learned trial court to decide the application under Order IX Rule 13, C.P.C. Strictly in accordance with law, it means both the earlier orders passed by the courts below regarding the said application shall be deemed to be set aside.
It is pertinent to note here that if for the sake of arguments it is presumed that the order passed by this court was not in consonance with the facts and circumstances of the case and the same was obtained by the respondent No,3 by concealing the material facts then the petitioner was under obligation to file a review application for setting aside the order passed by this court in earlier writ petition but such practice was not adopted by the petitioner. Hence, at this stage after having unsuccessful from both the courts below petitioner cannot take plea that the earlier order passed by this court was based upon wrong presumptions.
7. Now the question which is to be determined by this court either the judgments passed by both the courts below in second round of litigation are based upon proper appreciation of evidence and also the service of the petitioner was properly effected or not. To determine the said fact, summons which was issued for the service of the petitioner in the main suit was perused. From the perusal of said summons it reveals that petitioner/defendant denied to accept the summons according to the report of the process Server dated 2-12-2002. If there was denial on the part of defendant to accept the summons then Process' Server was bound under Rule 17 of Order V, C.P.C. To make affixation of the summons on any conspicuous place of the house/residence of the petitioner but this practice was not done by the Process Server. Provisions of above-mentioned rule were mandatory as is clear from the rule itself. There is no verification on oath by the Process Server on the summons. Moreover the Serving Officer did not make sufficient efforts to effect the service of A the petitioner as per law. Thus in view of the peculiar circumstances, it can safely be presumed that service of the petitioner was incomplete and cannot be relied upon to initiate ex parte proceedings against the defendant/petitioner. Learned trial court also failed to satisfy itself from the report of the process Server as no such like effort was made by the Presiding Officer. Moreover at what time petitioner refused to accept the summons is also missing from the report. Requirements of Rule 18, C.P.C. Have also not been complied with. Thus I am of the considered view that the report on the basis of which substituted service was made was not sustainable in the eye of law because proper procedure was not complied with and it can easily be presumed that substituted service was made without any plausible reasons. It is pertinent to mention here that if the learned counsel for the petitioner did not properly assist the trial court even then it was double obligation of the learned court to look into the right of the defendant as the courts are always presumed to protect the rights of the parties under the statutory provisions as well as under the fundamental rights granted in the Constitution of the Islamic Republic of Pakistan, 1973. Learned Revisional Court has also oversighted this important aspect of the case and decided the matter in the light of the arguments advanced by learned counsel for the parties in a casual way.
8. For the foregoing reasons, the instant writ petition is allowed. Impugned judgments passed by the courts below are set aside. Application of the petitioner for setting aside the ex parte decree dated 16-1-2007 is allowed and the said ex parte decree is set aside. Learned trial court is directed to decide the main suit of the respondent No,3 for recovery of money afresh in accordance with law.