SALAHUDDIN PANHWAR, J.--- Through instant order, I intend to dispose of captioned Miscellaneous Application Under Order XLI, Rule 21 read with Section 151, C.P.C, whereby applicant (respondent) seeks setting aside of judgment dated 08th May 2013 passed by this Court.
2. Precisely, relevant facts for disposal of instant application are that petitioner (Mst. Naghma), residing in United Kingdom, came in Pakistan and filed eviction application. After filing of eviction application, respondent (tenant) also filed civil suit for specific performance of contract on the basis of sale agreement. Both matters were proceeded in their independent jurisdiction (s). After culmination of trial, suit filed by respondent was dismissed by judgment and decree while eviction application of petitioner was allowed. It is further revealed that both the matters were challenged by respondent in appeals; during pendency of appeal (s), respondent filed application Under Order XLI, Rule 27, C.P.C. For additional evidence. Learned appellate Judge after hearing both the parties allowed both application(s) while setting aside the judgments recorded by respective trial Courts with direction to record additional evidence. Being aggrieved, appellant challenged such orders passed by appellate Court before this Court. Repeatedly, notices were issued but respondent failed to appear and thus publication was made but with the same result. In consequence, by common judgment dated 08.5.2013 direction was issued to appellate court to decide the appeal (s) after providing full opportunity of hearing to parties on available record.
3. Learned counsel for applicant (respondent) inter alia contends that impugned judgment is against the settled principles of civil administration of justice; applicant was condemned unheard and ex parte judgment was passed hence applicant has right of hearing, as protected under Article 10-A of Constitution of Pakistan; he further contends that albeit direction was issued for service against them through all modes but no ex parte order was passed. In support of his contentions, learned counsel has relied upon the case law reported as Muhammad Khalid alias Khalid Hussain v. Salid Hussain and 11 others (2012 M LD 1112), Messrs Sea Breeze Ltd. Through Authorized Officer v. Mrs. Padnta Banishes and another (2012 M LD 39), Zulfiqar v. Muhammad Khan (2002 CLC 932) and Farid v. Muhammad Khurshid and 14 others (2008 CLC 481).
4. Learned counsel for petitioner contends that impugned judgment is in accordance with law; respondents were having knowledge and by impugned judgment matter was remanded back to the appellate Court where same is pending for adjudication hence instant application is filed purposely in order to linger on the matter.
5. Heard learned counsel and perused the record.
6. At this juncture, it is necessary to mention that through course of Order XLI, R.21 of the Code, the applicant/respondent has sought setting aside of the common judgment, passed in three different matter(s) i.e. 'Civil Revision', '2nd appeal' and 'Constitution petition'. The 'Revisional jurisdiction' since is confined to correct jurisdictional error or illegality by the court (s) below which the Revisional Court shall require to see even if such jurisdiction is initiated sou motu hence provision of Order XLI, R.21 CPC has no application in revisional matter, as such not sustainable. The same principle will apply in 'constitutional matter' if same is resorted as a last resort finding no other remedy to challenge an order of lower court.
7. Be as it may, I, before going into merits of the case, feel it quite necessary to insist examination of the relevant provision (s) dealing with setting aside of the ex parte judgment/order in a 'suit' and 'appeal'. One should always keep in mind that a 'suit' is always tried while an 'appeal' is heard. This would become further evident from the relevant provision(s) dealing with legal question, in hand.
The Order IX R.13, C.P.C. Deals with power of setting aside an ex parte judgment in a suit while the Order XLI R.21 of the Code deals with same situation but in matter (s) of appeal. A comparative reference to both provision (s), being relevant, is made hereunder- Setting aside Decree Ee parte 13. [(1)] In any case in which a <u>decree is passed ex parte against a defendant</u> he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such21. (1) Where an <u>appeal is heard ex parte</u> and judgment is Pronounced against the respondent, he may apply to the Appellate court to re-hear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court <u>shall rehear the appeal </u>on such terms as to costs or otherwise as terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for <u>proceeding with the suit: </u>Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: it thinks fit to impose upon him.
(Underlining has been supplied for emphasis)
8. Comparative study of both the above provisions would show that for setting aside an ex parte the defendant or respondent, as the case may be, would require to establish that 'he was not served or to show the circumstances prevented him from appearing' but consequence of such setting aside in either case (s) is different. In former it is 'proceeding with the suit' but in later it is 're-hearing of appeal'.
9. Needless to add here that the duty of the Court (s) to examine the maintainability of suit continues even if the matter is one of ex-parte I and same position continues in matter of appeal (s).
10. In a suit a legal status and right/claim requires judicial determination which may necessarily require proper reply (appearance of D rival side) but the position is not so in appeal because an Appellate Court shall not accept (allow) an appeal without examining the legality or illegality of exercise of jurisdiction by the subordinate court (s) which, D even, would not be dependent upon pointing out of illegalities by appearance of the respondent.
11. The expression ' ex parte' has not been defined anywhere in the Civil Procedure Code. It is a Latin expression and means 'from one party or side'. Its accepted meaning according to Wharton's Law Lexicon, 14th edition, is 'a proceeding by one party in the absence of the other'. This term is applied in Law to proceeding by one party in the absence of, and without notice to, the other.
12. Since the equity always demand a proper notice to rival side before proceeding or hearing with a matter likely to cause any prejudice to rights or interests of such rival party but at the same time the law cannot be allowed to be defeated or delayed on tricky moves through P which a rival avoids service of process (summon/notice). Accordingly, the Code first has insisted upon proper service of summons/notice but at the same time has provided a mechanism for the Court(s) to proceed further to properly meet the later situation.
13. The term 'summons' is a legal process whereby a person is directed to present himself before a court of law on a specified date and time and object of issuance of summons and notice is nothing but to inform defendant of proceedings that he can appear before court and be heard or any defence that he may wish to put up; at the same time. What is necessary to proceed ex pane is satisfaction of the Court that defendant is 'duly served' which the court shall examine to its satisfaction by resorting to all legal procedure (s) for such purpose, which includes public notice
(s) through print-media (Newspaper). It has never requirement of the law that a summons/notice shall only be presumed to be 'duly served' which is acknowledged/received by the party himself/herself. This is so for the reason that an information could only be communicated but the person, sought to be served, cannot be forced by bailiff to sign. In other words, we can take the horse to the water but cannot make it to water. The reference, if any, can be made to the case law, reported as PLD 1979 SC (AJ&K) 120.
'The expression 'duly served', we think, bears the same meaning as in Order V, rule 19 of the Civil Procedure Code and that it is only means service in such a way as to give information of the suit to the defendant.
' The above view, finds complete satisfaction with the providing clause of Order IX, rule 13 of the Code which reads as under:- [Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim).
In view of the above discussion, I can safely conclude that to proceed ex pane the requirement would be only satisfaction of the court to the effect that the defendant or respondent, as the case may be, had knowledge of pending proceeding and date of hearing. Thus, the defendant or the respondent, as the case may be, to succeed in getting an ex parte judgment shall require to establish, to satisfaction of the court, that he was not 'duly served' which would also require to establish the fact of having no knowledge of pending lis (proceedings).
14. Now, I revert to the merits of the case in hand. The para-7 of the judgment in question, sought to be set-aside, being material is referred hereunder:- "Notices were issued to the respondent through all first three modes but could not be served, hence he was ordered to be served through substitute service by way of publication in daily newspaper 'Nawa-e-Waqt' on 12.10.2012. Even though he failed to appear before this Court."
' The above operative part shows that this Court, before resorting to the course of substitute service, found all three ordinary modes of service to have failed. The Order V, R.20 of the Code deals with mechanism of the substitute service and the Rule 20(2) of Order V of the Code says about effect thereof that:
(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Therefore, the service, effected through substitute service, needs not be dislodged merely on the plea of the defendant having not a subscriber/reader of the 'newspaper' wherein such notice is got flashed with an object to put the defendant on notice about hearing of matter else the purpose and object of Order V, R.20 of the Code shall stand frustrated and it would let every defendant to come after such whole process to get the ex parte judgment set aside only by asserting of not having been 'duly served'.
15. Let it be as it may, the record shows that the applicant has not denied his appearance in proceeding before trial court even after filing of the instant appeal before this Court. The record further shows that the order of appellate court was suspended by this Court vide order dated 30.3.2012 which was also communicated to the appellate Court (1st Additional District Judge, Hyderabad) which was communicated to the trial court as is evident from the diary of the appellate court dated 09.4.2012. Since the applicant/respondent has not disputed/denied his appearance before appellate court after judgment of this court hence it cannot be presumed, by any stretch of imagination, that applicant/ respondent had no knowledge and notice of pendency of appeal before this Court particularly where such matter remains continue pending for considerable period.
16. The record further shows that respondent was served through substitute service in daily 'Nawa- e-Waqt' on 12th October 2012 and matter was adjourned for 29.10.2012. Again matter was fixed on many occasions but respondent failed to appear and all these three matters were decided but at no material times the respondent/applicant appeared.
17. Since it is once established that the defendant/respondent had notice and knowledge of pendency of proceeding before the court of law and yet he/she stays away then he/she would not be legally justified to seek setting aside of ex parte judgment on plea of not 'duly served' because an active knowledge of pending litigation shall amount service of summons (communication of information to interested).
18. So far as to the plea of respondent/applicant that no ex pane order was passed, it would be significant to mention that this is not the requirement of the law that in appeal matter (s) there must be an order to the effect of declaring one ex parte but requirement of law is satisfaction of the Court to extent of 'well time communication of information of pending lis' (duly served) before hearing the appeal where legality of the order, appealed, is to be examined by the appellate Court, so was done in the instant case as is evident from judgment, sought to be set aside.
19. In consequence of what has been discussed above, I am quite safe to say that the applicant/respondent failed in establishing that he was not 'duly served' (not having knowledge of pending proceeding) and in absence whereof instant application becomes devoid of substance and is dismissed, as such.