MUHAMMAD SAJID MEHMOOD SETHI, J. This revision petition is directed against Trial Court's judgment & decree dated 25.02.2019, whereby suit for declaration along with permanent injunction, filed by respondents No.1 to 8, was decreed, and orders dated 24.12.2020 & 22.01.2022, passed by learned Civil Judge and Additional District Judge, Chichawatni, respectively, whereby petitioner's application for setting aside aforesaid ex parte judgment & decree was concurrently dismissed.
2. Brief facts of the case are that respondents No.1 to 8 filed suit for declaration along with permanent injunction to the effect that predecessor-in-interest of the parties, namely Bashir Ahmad was owner-in-possession of the suit property, who died on 21.07.2006 and parties to the lis are legal heirs of deceased Bashir Ahmad; and that sale deed No.278/1 dated 28.03.2008 and consequent mutation No.11533, being result of fraud and misrepresentation, are inoperative qua the rights of respondents No.1 to 8, thus, same are liable to be set aside. The suit was contested by respondents No.1 to 3, whereas petitioner / defendant No.4 was proceeded against ex parte.
Learned Trial Court, after framing issues, recording evidence and hearing arguments of the contesting parties, proceeded to decree the suit vide judgment & decree dated 25.02.2019. Later on, petitioner moved application for setting aside aforesaid judgment & decree, which was dismissed vide order dated 24.12.2020 and said order was also upheld by learned lower Appellate Court vide order dated 22.01.2022. Hence, instant revision petition.
3. Learned counsel for petitioner submits that petitioner was residing in Saudi Arabia at the time of institution of the suit, therefore, service should have been effected through proclamation in newspaper having international circulation, which was not done in this case. He adds that no summon / notice was served upon petitioner and all the proceedings were conducted at his back.
He adds that petitioner's application for setting aside ex parte judgment & decree was dismissed in a hasty manner by learned Courts below without appreciating the true facts and circumstances of the case. In the end, he submits that impugned decisions are unsustainable in the eye of law.
4. Whereas, learned counsel for respondents defends the impugned decisions by contending that learned counsel for petitioner has failed to pinpoint any illegality or legal infirmity therein.
5. Arguments heard. Available record perused.
6. Record shows that learned Trial Court decreed the suit filed by respondents No.1 to 8 inter alia on the grounds that respondents No.9 & 10 got recorded their conceding statement before the Court that they had no objection upon cancellation of impugned sale deed and mutation and passing of decree in the instant case; and that respondent No.11 as well as defendant / Chairman, Tehsil Municipal Officer, Town Committee Chichawatni did not record any evidence in rebuttal as well.
The stance of petitioner / defendant No.4 is that neither any notice / summons was served upon him nor registered A.D. or publication was received by him as he was abroad at the time of passing the decree dated 25.02.2019, which was obtained through fraud and misrepresentation.
7. Perusal of record reveals that, as is also evident from the order dated 26.10.2017, passed by learned Trial Court, as per report of Process Server, petitioner / defendant No.4 was abroad, so the Court directed plaintiffs to submit his correct address. However, needful was not done on 09.11.2017, 22.11.2017 and on 12.12.2017, the Court again directed to summon petitioner through registered A.D. and T.C.S. However, on 02.01.2018, process was not received back, the same was the report on 01.02.2018 and the Court proceeded to order press publication in 'Daily Samma'. It is not clear from the proceedings of learned Trial Court that whether petitioner's fresh address was furnished and summons were issued on abroad address of petitioner. When the factum of petitioner being residing abroad was in the knowledge of learned Trial Court, then press publication in the local newspaper does not appeal to reason. Moreover, learned Trial Court did not bother to call for report from the process serving agency for non-return of the process.
In order to effect proper service, plaintiffs were bound to provide complete address of the petitioner, which has not been done in this case. It is also not established from record as to whether any process was sent to the Ministry of Foreign Affairs, Islamabad for onward delivery to petitioner through the Pakistan Embassy at Saudi Arabia or by way of registered post acknowledgment due directly on the abroad address of petitioner. Instead the resort was taken to publishing of a notice in a local daily i.e. 'Daily Samma', which has a limited circulation within the confines of a particular region. The said newspaper can by no stretch of imagination be considered to have even reached the country wherein petitioner lived. Rule 25 Order V CPC enjoins on the Court that wherever defendants reside out of Pakistan and have no agent in Pakistan empowered to accept service on their behalf the summons be addressed to the defendants at the place where they are residing and be sent to them by post. Thus, it can be safely said that prior to publication, neither the available modes of service were exhausted nor was there a verification that the modes of service so used had failed, thus, proper procedure for effecting service upon petitioner was not carried out by learned Trial Court. Reliance is placed upon Aziz Khan v. Maiz Muhammad Khan and 6 others (PLD 1980 Peshawar 227).
8. Proper service of summons and notices on the defendants is the foundation of proper exercise of jurisdiction of the Court. Improper service would result in either multiplicity of litigation or setting aside of ex parte order / judgment resulting in inordinate delay in the disposal of cases on merits, as has been occurred in the lis in hand. If ex parte decrees are passed on the basis of defective service, then same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective and meaningless as final order / judgment on defective foundation is liable to be set aside. Reliance is placed upon Anwar Ahmed v. Waqar Ahmed and 8 others (PLD 2015 Sindh 326).
9. Substituted service by way of publication is only presumed to be personal service by virtue of Rule 20(2) of Order V CPC, which presumption is of course rebuttable, therefore, where service by publication is challenged, the first test is to see whether the conditions of Order V, Rule 20 CPC had been met viz. that the publication was resorted to after the Court was satisfied that the defendant was avoiding service, or there was some other reason to believe that summons could not be served in the ordinary manner. In other words, whether the ordinary modes of service available had been exhausted as unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to. Reliance is placed upon Muhammad Anwar v.
Abdul Haq (1985 SCMR 1228), Haji Akbar v. Gul Baran (1996 SCMR 1703), Nargis Latif v. Feroz Afaq Ahmed Khan (2001 SCMR 99), Muhammad Nawaz v. Amir Sultan (2013 CLD 1174), Sh. Mukhtar Ahmad and others v. Muhammad Saleem Bhatti and others (2013 MLD 1383) and Iftikhar Ahmed Qureshi and others v. Muhammad Abrar Ahmed Qureshi through Attorney and others (2020 CLC 1857).
10. Learned Trial Court dismissed petitioner's application for setting aside ex parte judgment & decree by simply observing that application has been filed willfully to disturb the execution proceedings. Learned lower Appellate Court also rendered somewhat similar findings that petitioner filed the application for setting aside decree dated 25.02.2019 when respondents / decree-holders filed execution petition for satisfaction of the decree, in order to linger on the proceedings. The questions whether service was actually affected or respondents were aware of the said proceedings are substantial in nature and the Court is under duty to decide such questions after recording of pro and contra evidence, which is mandatory under the law. After careful perusal of available record, this Court is not in agreement with the findings delivered by learned Courts below, which do not appear to be in line with the dictum laid down by superior Courts of Pakistan in cases reported as Gohar Ayub v. Muhammad Shafiq (2015 YLR 163), Qazi Laeeq v. Najeebur Rehman and others (2012 MLD 50), Haji Shah Nawaz Ranjha and another v.
Punjab Small Industries Corporation, through Regional Director, Sargodha and 4 others (2007 CLD 1637), WAPDA through Chairman, Lahore v. Muhammad Sanaullar Khan through Legal Heirs and another (2003 CLC 737) and Mst. Mahmooda Begum v. Muhammad Iqbal (1989 MLD 311).
11. Needless to observe here that decision should be rendered on merits rather than rights being sacrificed at the altar of procedures, technicalities and rigors of rules. However, the Courts may deny relief to those who had been indolent to safeguard their rights or abused process of law by delaying legal proceedings. At the same time, law aims at adjudication of disputes on merits and in order to achieve the object, the parties should be given proper opportunity to produce evidence in support of their respective claims. As regards the question of limitation, there is no cavil with the proposition that limitation runs from the date of knowledge of the petitioner and the moment he returned to Pakistan and obtained such knowledge, as mentioned by the petitioner in his application, he immediately filed application for setting aside ex parte decree, thus, same is not time barred. Therefore, learned Courts below were not justified to dismiss the application for setting aside the ex parte judgment & decree.
12. In view of above, this revision petition is allowed. Consequently, impugned orders dated 24.12.2020 & 22.01.2022, passed by learned Courts below, are set aside and petitioner's application for setting aside judgment & decree dated 25.02.2019 is allowed. Learned Trial Court is directed to conclude the proceedings of the suit afresh after providing fair opportunity to petitioner to lead his defence, after framing additional issue(s), if necessary, and recording evidence, within a period of thirty days and if need be, conduct day-to-day proceedings as the matter relates to the year 2017.
Parties are directed to appear before learned Trial Court on 24.12.2022.