Through this First Appeal against Order , the appellant has challenged the vires of order 09.04.2019 passed by the learned Additional District Judge, Okara whereby application for setting aside ex-parte judgment and decree dated 25.10.2017 filed by the appellant was dismissed.
2. Brief facts of the case are that the respondent/plaintif f filed Suit for recovery of Rs. 50,00,000/- under Order XXXVII, CPC on the basis of pronote dated 05.01.2016 against the appellant/defendant which was decreed by the learned Additional District Judge, Okara vide ex-parte judgment and decree dated 25.10.2017. Against the said judgment and decree, the appellant filed application for setting aside ex-parte judgment and decree on 13.08.2018 along-with petition for leave to appear and defend the suit. The application for setting aside ex-parte judgment and decree was dismissed by the learned trial Court vide order dated 09.04.2019. Hence, this appeal.
3. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.
4. The respondent filed suit for recovery of Rs. 50,00,000/-under Order XXXVII, CPC on the basis of pronote dated 05.01.2016 against the appellant. On 21.10.2016, notices were issued through registered envelope AD and Courier Service for 29.10.2016 and on the said date, the summons were not received back served or un-served and again the case was adjourned for the service of the appellant through registered envelope AD for 7,11.2016. On 7.11.2016, again no summon was received back served or un-served and again notice was ordered to issue for the service of the appellant through register ed post AD and Courier Service as well as affixation of Court fee for 18.11.2016. On 18.11.2016, notices have not been received back and the case was adjourned for 28.11.2016 for the service of appellant through registered post AD and Courier Service. On 28.11.2016 again the case was adjourned for 17.12.2016 on the ground that notice was not received back served or un-served. On 17.12.2016, again summon was not received back and case was adjourned for 07.01.2017. On 07.01.2017, the learned trial Court observed that summons were not received back however receipt of TCS is submitted on which address was given as 16-E whereas the actual address which was given in the suit is 166-E and reference number on the receipt is invalid number hence the same is discarded. Again summons were issued under Order XXVII in the name of the appellant through registered post AD and Courier Service for 20.01.2017. On 20.01.2017, in compliance of order of the learned District and Sessions Judge, Okara the case was transferred to the Court of Mr. Muhammad Ramzan, the learned Additional District Judge, for the same date and on 20.01.2017, the learned transferee Court observed that notice was not received back served or un-served and adjourned the case for the same process for 30.01.2017. On 30.01.2017, order for substitute service of the appellant through publication in the newspaper was passed and after publication, the ex-parte proceedings were initiated against the appellant on 9.2.2017 whereafter ex-parte evidence was recorded and ex-parte judgment and decree was passed on 25.10.2017. In suit under Order XXXVII Rules 1 & 2, CPC a special procedure of notice has been prescribed in Form No. 4 in Appendix 'B' CPC but there is neither any notice ever issued for the service of the appellant nor any service was ef fected nor any af fixation was made as prescribed under the law .
5. Under Order V, Rule 17, C.P.C. if the defendant refused to accept the notice or cannot receive the notice, the Process Server shall affix copy of the notice on the door 'of the defendant in the presence of the witnesses and under Rule 18, the serving officer in all cases in which summons have been served under Rule 16, endorse or annex, or cause to be endorsed or annex ed, on or to the original summons, a return stating the time when and the manner in which the summons was served and under Rule 19, if the summons returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath and thereafter under Rule 20 proce ss for the substitute service is to be adopted. But in this case the prescribe d process/procedure under Order V has not been followed by the learned trial Court and in a hasty manner initiated ex-parte proceedings against the appellant and dismissed his application for setting aside ex-parte judgment and decree which order of the learned trial Court is patently illegal and against the parameters prescribed under Order V, CPC as well as against the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases titled as Ahmed Khan v. Haji Muhammad Passi m and others (2002 SCMR 664) and Nouroz Khan v . Haji Padoor (2005 SCMR 1877 ).
6. Furthermore procedure of service of summon is intended to secure the proper administration and dispensation of justice to extend a fair chance of hearin g to the parties as described in Art. 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and nobody should be condemned unheard. The Courts always lean in favour of adjudication of cases on merits rather to stifle the rights of the people mere on technicalities. Reliance is placed on the cases titled as Municipal Committee, Rawalpindi through the Secretary , Municipal Committee, Rawalpindi v. Raja Muhammad Sanvar Khan (1968 SCMR 817) and Mst. Ghulam Bibi & Others vs. Sarsa Khan & others (PLD 1985 SC 345 ).
7. In view of above, this FAO is allowed. Order 09.04.2019 passed by the learned Additional District Judge, Okara is set aside and application for setting aside ex-parte judgment and decree dated 25.10.2017 filed by the appellant is accepted and the learned trial. Court is directed to decide the application for leave to appear and defend the suit of the appellant on merits.