RASAAL HASAN SYED, J.---Orders dated 19.7.2008 and 2.9.2019 of the learned Civil Judge as also the learned Addl. District Judge, Sheikhupura, allowing the application of the respondents setting aside the ex parte decree dated 28.5.2003 and also dismissing the revision petition of the petitioner have been challenged in this constitutional petition.
2. Petitioner filed a suit for specific performance against Abdul Majeed, predecessor of respondents Nos.1 to 9, which was decreed ex parte on 28.5.2003; an application for setting aside of the decree was moved which was allowed by the learned Civil Judge vide order dated 19.7.2008; civil revision petition filed against it was accepted on 13.4.2009 by the learned Addl. District Judge, which order was set aside by a learned Single Bench of this Court vide order dated 13.5.2014 and case was remanded for decision afresh to the Addl. District Judge. In the post- remand proceedings, the revision petition was again allowed by the learned Addl. District Judge vide order dated 06.8.2014. The order was challenged in Constitutional jurisdiction through W.P. No. 23350/2014 by the legal heirs of late Abdul Majeed respondent. The writ petition was accepted vide order dated 21.3.2019, order of the learned Addl. District Judge, was set aside and the case was remanded to him for decision of the revision petition of the petitioner afresh after opportunity of hearing to the parties. The learned Addl. District Judge, dismissed the revision petition of the petitioner vide order dated 02.9.2019; in result the order of the learned Civil Judge, whereby application of the respondent for setting aside of the decree was allowed, the ex parte decree was set aside. In the instant Constitutiopl petition, the petitioner has now challenged the order dated 02.9.2019 by which his revision petition was dismissed.
3. Learned counsel for the petitioner argued that the learned Addl. District Judge incorrectly applied section 12(2), C.P.C. for the annulment of the decree; the respondent's predecessor had the knowledge of the decree but the application was not filed for setting aside of the decree within 30 days in terms of Article 164 of the Limitation Act, 1908 and that the application under section 12(2), C.P.C. was not maintainable and that the application could not be maintained, simultaneously , under Order IX, Rule 13, C.P.C. as also section 12(2), C.P.C. as the two provisions applied for relief in different set of circumstances and on different premises and that the courts below misread the record while allowing the application for setting aside of decree and thereafter dismissed the revision petition.
4. Perusal of the record annexed with this writ petition, shows that the deceased Abdul Majeed was never served with any summons either through ordinary process or through registered post and that the alleged order of publication was made without compliance of the mandatory pre-requisites of Order V, Rule 17, 18 to 20, C.P.C. and that in view of the interpretation of the rule consistently made by the superior courts the order of substituted service was ab initio void and whole structure built on that basis could not stand. Case set up in the application was that there was a collusion between the petitioner and the process server and that fictitious and fraudulent reports were concocted with collusion of the process server and that deceased respondent was never served on time nor had he any knowledge of the date of hearing in the suit and that the ex parte decree was obtained by fraud which was untenable. The application was filed under both provisions, Order IX, Rule 13, C.P.C. and section 12(2), C.P.C. The learned courts below considered the application under section 12(2) C.P.C. which provided a period of three years limitation under Article 181 of the Limitation Act, 1908 for challenge of a decree with commencing date to be the moment the aggrieved person acquired knowledge of the cause of action. No doubt this court has consistently ruled that if an application under Order IX, Rule 13, C.P.C. is filed and the same is dismissed and the order is also upheld in appeal, the aggrieved person cannot be permitted to file an application under section 12(2), C.P.C. thereafter as this provision does not provide duplication of remedy . In this case, the petitioner's application under Order IX, Rule 13, C.P.C. was never independently filed nor it was declined. Rather , the application was filed under composite provisions of section 12(2) C.P.C. and also Order IX, Rule 13, C.P.C. The courts below in the peculiar circumstances of the case and on observing that it was a case of complete fraud as the learned Civil Judge had violated the mandatory provisions of law, his orders were without jurisdiction whereby he directed publication of notice and that the decree passed being a result of fraud was untenable and, theref ore, the application having been filed under section 12(2), C.P.C. as well, applying the said provision it was liable to be set aside. The petitioner cited certain cases to challenge the order but the same do not help the petitioner as the same deal with a situation where an application under Order IX, Rule 13, C.P.C. was dismissed, the order was upheld in appeal and thereafter the defendant sought intervention under section 12(2) C.P.C. by filing a fresh application; but this course was disallowed as it was held that section 12(2) does not provide duplication of reme dies and that a party had three remedies to challenge the ex parte decree i.e. (i) by filing an application for setting aside under Order IX, Rule 13, C.P. C.; (ii) by filing an appeal and (iii) by moving an application under section 12(2), C.P. C. and if he opted to avail the first remedy the second and third shall be excluded as law did not permit duplication of the remedy on the same subject. In the instant case, the respondent right from the beginning moved the application by using both the provisions in the headnote of the application. Being so, the court could in law dealt with the application under section 12(2), C.P.C. instead of applying Order IX, Rule 13, C.P.C. as the view taken was that there was a collusion with the process server . Even otherwise it is a settled rule that the courts should explore avenues to do justice; all efforts should be made to decide the cases on merits; and that the court and the tribunals have a jurisdiction to mould the relief according to the circumstances of the case. In "Mst. Amina Begum and others v. Mehar Ghulam Dastagir" (PLD 1978 SC 220) it was ruled by the honorable Supreme Court to the effect the indeed discretion vested in the courts to be judicially exercised in proper cases in order to avoid multiplicity of the proceedings, to shorten litigation, and to do complete justice between the parties to mould the relief according to the altered circumstances in the larger interest of justice. In the instant case too, the learned Addl. District Judge after conduct in depth scrutiny of the record observed that the learned trial court passed a decree on the basis of alleged proclamation in newspaper; the court did not pass any speaking order as to why it did not make any efforts for personal service of the defendant and why mechanically the orders were passed for affixation and proclamation; the learned Addl. District Judge also noted that vide order dated 04.7.2002. The court noted that the summonses were returned unserved and directed the issuance of fresh summons and notice through the ordinary process and registered post and proceeded to direct affixation notwithstanding the fact that no previous summons was ever served upon the respondent nor there was any report of the process server for avoidance of service or refusal to accept service. It appears that the learned Civil Judge proceeded to pass the order for publication in an unknown newspaper "Daily Aftab " without examining the process server as to the efforts, if any, made by him and the steps taken by him to ensure personal service and as to why he could not procure personal service. Care was also not taken to examine as to whether report of the process server satisfied the requirements a rule 17 of Order V, C.P.C. so as to reflect the time and date of service, the names of the persons who identified the place and the defendant and the witnesses, if any, in whose prese nce the alleged affixation was claimed and as to whether the report was properly verified on oath as required in law. Without adhering these prerequisites, the order for publication of notice could not possible be made. In "Syed Muhammad Anwar , Advocate v. Sheikh Abdul Haq" (1985 SCMR 1228 ) it was observed that any publication order made without fulfilling the requirements of Order V, Rules 17, 18, 19 of C.P.C. will be legally untenable and the whole structure in the form of ex parte decree will not stand on the basis of a patently void and illegal order . It is discernible from the order of learned Addl. District Judge that he took note of all the relevant factors and thereafter concluded that it was a primary duty of the court to provide opportunity of hearing and that no one could be condemned unheard and that the decree under challenge could not be up held and was rightly set aside under section 12(2), C.P.C.. The application undeniably filed within the period prescribed by Article 181, of the Limitation Act, 1908 and even otherwise there were sufficient reasons to treat the case on merits in view of the inherent legal flaws and jurisdictional error in the proceedings of the learned trial court which C resulted in ex parte decree. The learned Addl. District Judge rightly observed that it was not a fit case for interference in the revisional jurisdiction. The order passed by learned Addl. District Judge as such does not suf fer from any error of law or jurisdiction.
5. For the reasons above, this writ petition is without merit which is accordingly dismissed.