1. GHULAM MUSTAFA MUGHAL, C J.---This appeal is filed against the judgment and decree passed by the learned Additional District Judge Kotli on 30-12-2011 whereby appeal filed by the appellants herein has been dismissed.
2. ' Precise facts forming the background of the instant appeal are that Shaukat Ali Shah, respondent herein brought a suit for declaration and cancellation of gift deed dated 16-12-1998 against Mst.
3. Kosar Fatima and others in the Court of Senior Civil Judge Kotli on 3-6-2005.
4. Defendants/appellants were summoned for 3-8-2005. The process server reported that defendants are out of the country whereupon the learned trial Court ordered for substituted service. A proclamation was issued in daily "Grift" on 14-8-2005 whereby defendants/appellants were ordered to appear on the next date of hearing i,e, on 23-8-2005. As nobody appeared on behalf of the defendants on 23-8-2005 hence, they were proceeded ex parte. The learned trial Court after recording ex parte evidence decreed the suit vide judgment and decree dated 24-2- 2006. Appellants herein, filed an application for cancellation of the aforesaid ex parte judgment and decree in the Court of Senior Civil Judge Kotli on 20-6-2006. It was averred that appellants/petitioners are residing in England for their livelihood and in their absence respondent herein filed a suit for declaration and has obtained an ex parte decree on 24-2-2006. It was alleged that petitioners have been preceded ex parte on the basis of a proclamation issued in a local newspaper which was not of wide circulation hence, defendants have not been served duly, therefore, the ex parte decree passed against the defendants/appellants may be recalled. It was claimed that petitioners came to know about the ex parte decree on 15-6-2006, therefore the application is within limitation from the date of knowledge, otherwise the limitation may be condoned for which a separate application has been filed. This application was contested by respondents herein, by filing objections. It was stated by them that application for vacation of ex parte judgment and decree is time barred. It was further stated that substituted service was issued on the report of Process Server therefore, no illegality has been committed by the Court, hence, the .Decree cannot be recalled. It was submitted that no sufficient cause has been shown by the petitioners for their absence, therefore, the application for setting-aside ex parte decree cannot be entertained. The learned trial Court framed issues in light of the pleadings of the parties. The parties led evidence in support of their respective stand. At the conclusion of the proceedings the learned Senior Civil Judge Kotli vide his judgment and order dated 29-4-2010 dismissed the application on the ground of limitation. Appellants herein felt aggrieved from the aforesaid judgment and order and assailed the same through an appeal before the learned Additional District Judge Kotli who vide judgment and order dated 30-12-2011 dismissed the appeal.
5. ' Mr. Abdul Rasheed Abbasi, the learned counsel for the appellants vehemently argued that admittedly the appellants herein, were living in Lotan (England) at the time of institution of the suit and it was in the knowledge of the respondents but despite that he did not entered the correct address of the appellants in the plaint. The learned counsel contended that even otherwise the mandatory conditions visualized by Rules 10, 10-A, 17 and 20 of Order V have been violated, hence, is cannot be said that due service was effected on defendants/appellants, herein. The learned counsel maintained that it was the obligation of the process server to affix the copy of summons on the outer door of the residence of the appellants or effect service on Sadiq Shah who was the member of the family of the appellants. He argued that after receiving report of the process server wherein it was stated that defendants are residing in a foreign country, the Court should have directed the plaintiff/respondent herein, to furnish the fresh address of the defendants. The learned counsel further contended that even the evidence of the witnesses produced by the plaintiff, Orangzeb, Faisal Mehmood and Process Server Muhammad Safeer is not of worth consideration and the learned trial Court as well as first appellate Court failed to appreciate the evidence as well as the legal position involved in the case in hand in its true perspective. The learned counsel submitted that where the defendant has,not been duly served then the illegality committed in due service itself has been treated as sufficient cause for setting-aside ex parte judgment and decree.
6. In support of his submissions the learned counsel placed reliance on the following case-law:--
(1) Zaran Begum v. Saidal Khan (PLD 1975 AJK 122);
(2) Muhammad Faryad v. Muhammad Asif (PLD 1993 Lahore 469);
(3) Haji Akbar and others v. Gul Baran and 7 others (1996 SCMR 1703);
(4) Akhtar and Hafmann Ltd. v. Messrs ULBRICHT'S WWE, GES M.B.H AUSTRIA and others (1991 SCMR 1284);
(5) National Bank of Pakistan v. Bawany Industries Ltd. And 6 others (1989 CLC 363);
(6) Ch. Muhammad Altaf and another v. Muhammad Sadiq and 9 others (PLD 2004 SC (AJ&K) 45).
7. ' The learned counsel argued that both the Courts below have not properly appreciated the question of limitation. He maintained that though the limitation for setting-aside an ex parte decree under Article 164 of the Limitation Act is 90 days but where it is proved that a defendant has not been duly served then application can be filed within three years under residuary Article 181 of the Limitation Act. In this regard the learned counsel placed reliance on the following case-law:--
(1) Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21);
(2) Syed Muhammad Anwar v. Sheikh Abdul Haq (1985 SCMR 1228).
8. ' The learned counsel also argued that ex parte decree could not be passed keeping in view averments made in the plaint and ex parte evidence led in support thereof. He argued that absence of the defendants cannot absolve the Court from its duty to see as to whether grant of decree on the basis of ex parte evidence is justified or not? He submitted that while exercising supervisory jurisdiction plaint may be rejected.
9. ' Conversely, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the respondents vehemently argued that application was time barred and no sufficient case for absence of the defendants has been shown. He contended that Sadiq Shah, from whom the appellants herein gain knowledge about passing of ex parte judgment and decree has not been produced as witness rather an application for recording his statement through commission was made but the same was subsequently withdrawn, therefore, adverse inference is liable to be drawn against the petitioners/appellants, herein. The learned counsel further submitted that no illegality or irregularity has been committed by the courts below.
10. ' I have heard the learned counsel for the parties and gone through the record of the case.
11. ' It may be stated that a complete scheme for institution of the suits and for service of defendant has been provided in the C.P.C. Under Order IV rule 1 every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Under Order VII, Rule 1(C) besides, the other particulars to be contained in the plaint it is obligatory to mention the name, description and place of residence of the defendant, so far as they can be ascertained. After registration of the suit the Court has to issue process to the defendant. The mode of service is provided in Rules 9 and 10 of Order V. The Rule 10-A of the said order further postulates that 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 by registered post, acknowledgment due, another copy of the summons signed and sealed in the manner provided in Rule 10. The summons issued under Rule 9 can be served on the defendant or on his agent who is authorized to receive the service. Under Rule 15 if the defendant cannot be found and has no agent empowered to accept the service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. Rule 17 of Order V postulates that where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. The process server has to return the original summon to the Court from which it was issued, with the report endorsed therein or annex thereto stating that he has so affixed a copy, the circumstances in which he did so, name and address of the persons by whom the house was identified (if any) and in presence of those a copy was affixed. In case of return of summons under Rule 17 the Court may examine the serving officer for the purpose of his satisfaction. The question of substituted service would arise only when the conditions listed in Rule 20 are fulfilled. The condition precedent is that the Court should be satisfied and has reasons to believe that defendant is keeping him out of the way for the purpose of avoiding the service or that for any other reason the summons cannot be served in the ordinary way, then clause 20(1)(e) of Order V to be invoked.
12. The present case is not one in which the defendant was keeping him out of the way for the purpose of avoiding service. The process server has also not reported that he has affixed a copy of the summons on the outer door of the residence of the defendants. It is also proved by the statement of the process server and evidence led by the respondents herein that the summons was served on Sadiq Hussain Shah, who was the family member of the defendants in light of Rule 15 of Order V, C.P.C, therefore, without complying with the above-stated provisions relating to the service of the defendants the order of substituted service was not proper. It is also proved from the evidence of the respondent herein, that at the time of institution of the suit the defendants were residing in Luton (England), therefore, it was his duty to enter the correct address in view of the provision contained in Orders IV and V, rule 25 because it has been admitted by the plaintiff that defendants were residing outside the Pakistan at the time of institution of the suit. When residence of the defendants was in the knowledge of the plaintiff but the same was not entered then substituted service was not approved by the apex Court of Pakistan in a case titled Muhammad Aslam v.
13. Additional District Judge, Rawalpindi and others (1979 SCMR 85) wherein at page 87 of the report it was observed as follows:-- "In the instant case the petitioner appears to have obtained the order from the Court for effecting the substituted service on the defendant by wilful suppression of his correct address and thus played fraud on the Court itself in procuring that order from it. This was sufficient reason for the Court to have annulled its own proceedings."
14. In the case in hand, the provisions contained in Rule 10-A of Order V have also been violated. The proclamation has also been issued in a local newspaper which is not of wide circulation. The authorities relied upon by Mr. Abdul Rasheed Abbasi unequivocally supports his assertion. In Zaran Begum's case, referred to hereinabove a Division Bench of this Court has attended and resolved an identical question and at page 130 of the report it was observed as under:-- "The proper thing for the Court was to have asked the appellant to furnish her new address. It has been held in AIR 1917 Lah. 399 that it is the duty of the appellant to give the correct address of the respondent. Under Rule 25, Order V, it is provided that if a defendant is living outside A J K and at a place with which there is postal service, the summons shall be sent to him by registered post. The .Court should have, therefore, asked the appellant to furnish her address in Pakistan and should have then sent to her a notice under a registered cover that would have been a proper substituted service in the case because if it is possible to have substituted service in a manner which is more likely to bring the institution of the suit or appeal to the knowledge of the defendant-respondent, I think it is the duty of the Court to adopt such a method rather than rush for the convenient but highly unsatisfactory manner of doing so by getting a notice published in a newspaper because while in the latter case, the only object served is that further proceedings are not withheld and the Court is enabled to proceed to a summary ex parte decision, in the former case the additional benefit is that the defendant/respondent may also appear to contest the action."
15. "The notice was published in weekly "Insaf" a paper with largest circulation of A.K. Weeklies but nonetheless an obscure paper in so far as Pakistan is concerned. The woman is illiterate and could by no stretch of imagination be deemed to have come to know of publication of the notice in the said paper. Thus what is the difference in a substituted service of this type which has no likelihood of coming to the knowledge of the respondent and a case in which the plaintiff or appellant, gives a wrong address of his adversary and then gets a false report made by the process-server that the defendant had been served or that he had hidden himself on seeing the process-server and he had, therefore, affixed a copy on the outer door of his house or served a copy on an adult male member of the family or with a case wherein the process-server falsely reports that the defendant was deliberately keeping out of the way and thereupon the Court orders substituted service through the publication of a notice in an obscure newspaper? Obviously there is no difference in these cases because in all of them the defendant was not at fault in not making an appearance in the Court and it would be tyrannical to hold in such a case that simply because sub-rule (2), rule 20 provides that substituted service would be as effective as personal service, the ex parte decree cannot be set aside."
16. ' In Mazhar Ali Shah's case (1990 MLD 1070) provisions contained in Order V, Rules 10-A, 17 and 19 have been examined and it was observed that where the provisions of Rule 10-A have not been complied with nor any order for dispensation of mandatory provision of law has been passed by the trial Court then the statement of process server that defendant has refused to accept the summons cannot be accepted. At page 1075 it was observed as under:-- "Now reverting to the point involved as to whether the present respondent was duly served with the summons of the suit it would be necessary to refer to the provision of Order V, Rule 10-A, C.P.C. And Rule 19. Rule 10-A as pointed out above clearly shows that along with issue of summons to the defendant another copy of the said summons shall be sent by registered post acknowledgement due unless otherwise ordered by the Court. In the present case no such summons were sent through registered post acknowledgement due nor any order was passed by the Court dispensing with this mandatory provision of law. Secondly the endorsement of the bailiff on the summons to the effect that defendant refused to accept the summons and, therefore, the same were pasted on the door of his residential house is also not on oath as required under Rules 17 and 19 of Order V of the Civil Procedure Code."
17. ' In the case titled Muhammad Ibrahim v. Mehmooda (1987 CLC 1994) it was held as under:-- "The duty of the Court is to administer justice in accordance with law. The Court ought not to exercise a punitive jurisdiction by declaring the defendant ex parte. Courts would ordinarily be inclined to set aside ex parte decree unless there has been gross negligence on the part of the party because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.
18. ' The Court will set aside the ex parte decree if it finds that the defendant was not duly served.
19. Whether the defendant as duly served or not, the Court must find it on evidence and to give opportunity to parties to lead evidence. The word 'duly' in Order IX, Rule 13, C.P.C is not equivalent to 'personally'. Due service of summons comprises of, apart from tendering a copy of the notice, reading and explaining the contents thereof for the cognizance of a party as to the factum of pending litigation, the Court in which it is pending and the date to which the said litigation is posted. The indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of or refusal to receive the summons. A vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant/petitioner had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular relief/sum. Therefore, if the defendant/petitioner is shown to have no knowledge of the suit the decree he can be taken to have shown sufficient cause for non-appearance, so as to enable him to invoke Order IX, Rule 13, C.P.C."
20. ' Again in a case titled Major Tajuddin and others v. Muhammad Akhtar and others (1989 CLC 2183) a learned Single Judge of Lahore High Court had also observed that the provisions of Rules providing for service through registered post acknowledgement due were to be complied with and for want of the same the decree passed ex parte was to be set aside.
21. ' In a case titled Haji Karamat Hussain v. Naik Khan Muhammad (1986 CLC 6) a learned Single Judge of Quetta Bench has also held that defendant was entitled to have ex parte decree set aside against him if summons were not duly served even when he was aware of institution of suit against him.
22. ' In Munshi Tamizuddin Howalder and others v. Altafuddin Moral and others' case (PLD 1970 Dacca 483) a learned Single Judge of Dacca High Court had set aside the ex parte decree for the reason that the serving peon of the Court was not examined by the trial Court under Rule 19 of Order V, C.P.C.
23. ' The scope of Order V, Rules 17 to 20 of C.P.C. Has also been examined by the Lahore High Court in Begum Kishwar Abid Hussain and another's case [PLD 1976 Lahore 1521]. In para 11 of the report it was observed as under:-- "There is yet another aspect of the case which needs serious consideration. Section 5 of the Ordinance, reproduced above, provides that the notice sent under this provision is to be delivered to the person concerned personally, or if it is not possible, then to be sent per registered post, acknowledgment due, or it be affixed outside the residence of such person or as a last resort he should be served by publication of the notice in a newspaper. The provision as contained in section 5 of Ordinance XIV of 1966 is analogous to the provision as contained in Order V, Rules 17 to 20, C.P.C. Rule 17 of the said order provides that where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot' find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. Rule 18 further provides that serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex. Or cause to be endorsed or annexed, to the original summons, a return stating there time when and the manner in which the summons was served.
24. And the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. Rule 20 of Order V provides for substituted service-where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof outside the residence or in any such other manner as the Court thinks fit."
25. ' In case titled National Bank of Pakistan v. Bawany Industries Limited and others (1992 CLC 1553) the defendant therein was not served at his foreign address where he was living at the relevant time, his non-appearance before the Court on the date of trial was taken as sufficient cause for the purpose of setting-aside ex parte decree passed against him.
26. ' The contention of Mr. Abdul Rasheed Abbasi, the learned counsel for the appellants that defendants were not served duly within the ambit of Order IX, Rule 13 and Article 164 of Limitation Act, therefore, the application would be governed by Article 181 has a substance and the judgment relied upon by him is to the same effect but our own Supreme Court incase titled Farid Khan v.
27. Gulzar Khan and 10 others (PLD 1985 SC (AJ&K) 74) has taken a different view. This authority need not to be discussed because even otherwise, I am of the view that application for setting-aside decree was within limitation from the date of knowledge of the defendants/appellants and as they have not been duly served, therefore, the same would be treated as sufficient cause for setting aside the ex parte decree as well as condonation of delay (if any) as has been held in National Bank of Pakistan's case (1992 CLC 1553), supra.
28. ' The contention of Mr. Abdul Rasheed Abbasi, the learned counsel for the appellants that the plaint as has been drafted does not disclose any cause of action and ex parte evidence recorded, on the basis of which ex parte judgment and decree has been passed, is also not in line with the pleadings of the respondent/plaintiff, therefore, the plaint may be rejected under the supervisory jurisdiction available to this Court is concerned that has a substance; but in the circumstances of this case I am not inclined to knock out the plaintiff for this simple reason that he has not claimed the relief in suit in clear terms by not stating the grounds on which he is entitled to the relief. Although it was essential to claim the same under Order VII, Rule 7, C.P.C, however, the plaintiff can avail an opportunity to remove the defect of pleading by applying to the Court for amendment, if so advised.
29. So far as the passing of judgment is concerned I am of the view that ex parte proceedings or judgment cannot absolve the judicial officer from his duty to see as to whether ex parte evidence brought on the record supports the claim of the plaintiff for granting the relief. Mere absence of the defendants is not sufficient to approve the case of the plaintiff. Law is well settled that plaintiff has to stand upon his own legs and establish his claim on the basis of cogent evidence. As has been held in a case titled Azad Kashmir Logging and Saw Mill Corporation Ltd. v. Messrs Muhammad Farid Khan and Company Brothers, Contractors AKLASC (PLD 1986 AJ&K 228). In paras 12 and 13 of the report it was observed as under:-- "12. Now coming to the judgment passed in ex parte decree on 31st October, 1981, it is noticed that the judgment is written in the hand of Reader of the Court. It contains no substance of the claim of legal plaintiff nor it refers to any evidence. It is a cryptic order, as such devoid of substance and character of a judgment. In ex parte proceedings, plaintiff produced Muhammad Farid Khan, Muhammad Afzal and Muhammad Ishaque as witnesses. These witnesses, in their summary statements, confined to depose facts relating to grant of the contract and its cancellation.
30. Muhammad Farid Khan gave some details. The plaintiff somehow failed to bring on record the documentary evidence appended with the pleadings which, in my estimation, would have supported the claim of the plaintiff. The only tangible evidence appended with the pleadings was thus not brought on record to substantiate the claim of the plaintiff. Therefore, on one hand, there was no evidence in the eye of law to allow the claim of the plaintiff and on the other hand, whatever evidence was brought on record, was not referred to in the judgment nor appreciated in a legal fashion.
13. Order XX, Rule 4(2), Civil Procedure Code, postulates that judgment shall contain a concise statement of the case, points for determination, decision thereon and reasons for such decision.
31. This provision of law clearly enjoins upon the Court to refer to leading fact and grounds on which the claim of the plaintiff rests and the defence, if any, or admission, as the case may be. The Court has to determine the controversial points at issue and has to decide those issues by appreciating the evidence of the parties and giving reasons in support of its ultimate decision. This is a mandatory provision of law and any departure from a mandatory provision of law obviously renders the judgment a nullity".
32. In view of above the appeal is accepted and the judgments and orders recorded by the Courts below are hereby set aside. Resultantly the original suit filed by the respondent herein, wherein ex parte decree has been granted would be deemed pending before the trial Court. The trial Court shall proceed in the case after receiving written statement from the defendants.