ABDUL LATIF KHAN, J-This civil revision has been filed against the judgment and order dated 30-10- 2013 passed by the learned Additional District Judge/Izafi Zilla Qazi 1st Swat, whereby judgment and decree dated 17-6-2013 (ex-parte) passed by the learned Civil Judge/Illaqa Qazi-IV, Swat was upheld.
2. Arguments heard and record perused.
3. A perusal of the record reveals that a suit for recovery of Rs. 700,000/- was filed by plaintiff/respondent Ayub Khan against the petitioner Murad Khan on the basis of agreement allegedly executed on 3-9-2011 between the parties. It was averred in the plaint that "Nikah" between the daughter of defendant and son of petitioner was recited; however the "Rukhsati" was not taken place as yet. It was further averred that through deed dated 3-9-2011 a sum of Rs.
700,000/- was given to the defendant for purchase of house by the plaintiff, however, he neither purchased the house nor returned the amount and, as such, the instant suit for recovery was filed on 20-9-2012.
4. The perusal of order sheets reveals that on 13-10-2012, the petitioner was not present. A.D. card annexed with registered envelope received back with the remarks that defendant has refused to receive the registered envelope and, as such was placed ex-parte and the matter was listed for 31- 10-2012, ex-parte evidence was recorded on the date fixed. Arguments heard and the case was posted to 7-11-2012, however, the order could not be announced and the case was adjourned to 15- 11-2012. Thereafter an ex-parte decree was passed as prayed for in favour of the plaintiff on the date fixed. The petitioner moved an application for setting aside of ex-parte decree on 13-4-2013 on the ground that his absence was not intentional as he was not served and prayed for reversal of order, whereby he was placed ex-parte. Application was contested by filing replication on 23-4- 2013 and the learned trial Court dismissed the application on 17-6-2013 mainly on the ground that registered A.D. card contained the refusal of defendant/petitioner culminating into ex-parte proceedings, which was later on resulted into ex-parte proceedings and thereafter culminating into ex-parte decree. The learned Trial Court also based its order on the ground that later on in execution petition once again registered A.D. card was sent on the given address of the petitioner, which was returned with the same remarks that the petitioner has refused to receive the same. The application was also mainly dismissed by the Trial Court on the score of limitation. The findings of trial Court was assailed before the Court of appeal, which also met the same fate.
5. Admittedly, the personal service of defendant/petitioner was not effected at any stage of the proceedings in original suit as well as in execution petition. The alleged refusal on both the A.D. cards were not proved neither any effort was made by trial Court by issuing fresh notice for personal service of the defendant/petitioner ordinarily or through substituted service/ "chaspangP" by affixation of notice, where Serving Officer after using all due and reasonable diligence cannot find the defendant a copy of notice be affixed on the outer door or some conspicuous part of the house, where the defendant resides or carries on business or personally works for gain, but no such effort was adopted by the trial Court. Similarly, substituted service of the petitioner was not effected through electronic devices .i.e. telegram, telephone, telegraph, fax, radio and television etc or as proved under Order-5 Rule 21 (b) to (f) of C.P.C.
6. Moreover, no opportunity was afforded to the petitioner on the application moved to the effect that he had knowledge of the proceedings and the entry to the effect that he refused to receive the summon registered envelope or whether any person was cited on the A.D. card, who has witnessed the refusal of summon on behalf of petitioner and, as such, the petitioner was condemned unheard, as no opportunity of being heard has been afforded to him. Service of the defendant/petitioner was not effected through all means, therefore, the mischief of limitation would hardly come in the way of petitioner. Even Article 164 of the Limitation Act, 1908 provides limitation of thirty days for filing application seeking setting aside of the ex-parte decree but only for those cases where personal service has been effected, otherwise it has to be reckoned from knowledge of the petitioner. The perusal of order sheets of the trial Court reveals that summon was not served personally and proper course was not adopted by issuing fresh summon nor adopted any measures as provided under Order-5 Rule 20 of C.P.C for the personal service of defendant/petitioner. Needless to mention that the object of service on defendant is to let him know about the claim set by the plaintiff and to enable to him to resist the same, therefore, for this purpose repeated efforts are to be made to ensure determination of all issues after proper adjudication of the matter.
7. Quite apart from this, the perusal of ex-parte decree/judgment reveals that neither the documents has been proved by the plaintiff nor any evidence to this effect has been discussed and the trial Court has given only few lines in its judgment and observed in light of affidavits submitted by PW-1 to PW-5, which is against the norms of justice, law besides and failed to appreciate and evaluate the evidence in true perspective. It is by now settled principle of law that every "lis" before the Court of law and even before quasi-judicial authority must be disposed of with reasoned judgment, so, that the person losing the same may go with the impression that the findings against him was reached in accordance with law and was not the result of whim and caprice . Even otherwise, the most coveted goal in the process of administration of justice is that justice should not only be done but manifestly seen to be done through a speaking rather than a cursory or groundless order is imperative nay indispensible more so in view of Section 24 A-2 of the General Clauses Act.The trial Court was required to pronounce the judgment regarding the issue involved in the case with full clarity in its findings, with the aid of reason upon each and every issue and in no way eventuality empower to pass an order in slipshod manner for the reason that there was nothing in rebuttal due to the absence of petitioner, being placed ex-parte and even in case of ex-parte decree, the Court is supposed to pass its judgment based upon reason.
8. The Court of appeal has boundan duty entrusted by the legislature to give its own findings and would not easily agreed with trial Court by choosing easy path to concur with the trial Court without any rhyme and reason. Wisdom derived from the case of "Gul Rehman VS Gul Nawaz Khan" reported as 2009 SCM R 589, wherein their Lordship has laid down criteria/guidelines for Court of appeal/revision, which has been bypassed in the instant case. Relevant portion of the judgment is reproduced for guidance as under: " Regarding duties of the Appellate Court, specially the first Appellate Court, learned Narayan, J, in paragraph 22 of judgment in the case Sailajananda Pandy and another (supra) has clearly that " it has been repeatedly pointed out that the legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the lower Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty".
9. The Courts below have not decided the "lis" pending before them with conscious and application independent mind, and, such the impugned judgments are not sustainable.
For the aforementioned reason, I allow the instant petition set aside the impugned judgments and decree with direction to the trial Court to permit the petitioner to file written statement and decide the case on merits within a period of two months positively. The parties are directed to appear before the learned Senior Civil Judge/A'ala Illaqa Qazi, Swat on 16-9-2014.