MUHAMMAD NAEEM ANWAR, J. Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order of the learned Additional District Judge/Izafi Zila Qazi-V, Swat dated 13.10.2021, whereby the application of respondent No.1 for setting aside ex-parte proceedings dated 15.05.2018 & ex-parte order dated 28.09.2018 in C.R No.8/CR of 2018, was allowed consequently, C.R No.8/CR of 2018 was restored.
2. Facts lying in the background of this petition are that respondent No.1 namely Nadar Khan filed a suit for specific performance of agreement dated 10.04.2006 against the present petitioner and others seeking directions in terms of decree for transfer of property, as described in the headnote alif of the plaint, through registered deed or attestation of mutation along with a relief for perpetual injunction restraining the defendants from further alienation of property to anyone else in any manner besides restraining them from altering the nature of the property through construction or otherwise. Relief for recovery of possession was also sought. The present petitioner/ defendant submitted two applications: one for adjournment of the proceedings sine die being based upon the pending adjudication of C.O.C No.46-M/2012 in W.P No.1861 of 1998, while second application was for rejection of plaint on the ground that the suit is based on two deeds, for which two causes of action were accrued, thus, by consolidation of the causes of action one suit could not be filed; that no right was accrued on the basis of the deeds which are void. Both the applications were resisted by the plaintiff/ respondent No.1, however, the learned trial Court after hearing the parties dismissed the application of the petitioner for rejection of plaint filed under order VII rule 11 C.P.C through its order dated 20.01.2018, which was assailed by the petitioner through C.R No.8/CR of 2018, wherein notices were issued to the respondents including the plaintiff/ respondent No.1 but he could not appear and thus was proceeded ex-parte. After adhering to the provision order V rule 20 C.P.C (substituted service), the learned Additional District Judge/Izafi Zila Qazi-VI, Swat allowed the revision on 28.09.2018, the order of the learned trial Court dated 20.01.2018 was set aside and plaint of the suit of respondent No.1/ plaintiff was rejected. On 10.12.2018, the respondent No.1 filed an application for setting aside of the ex-parte proceedings dated 15.05.2018 and ex-parte order dated 28.09.2018 before the learned revisional Court on the ground that he has never been served with the notice of the Court regarding pending adjudication of the civil revision against him and that since he was abroad, his correct address was not submitted by the present petitioner. The learned Additional District Judge/Izafi Zila Qazi-V, Swat issued notice to the present petitioner, who resisted the application and after hearing the parties allowed the application through order dated 13.10.2021, consequently, civil revision was restored hence, this petition.
3. The main contention of learned counsel for the petitioner was that the provisions of order IX rule 13 C.P.C and order XLI rule 21 C.P.C could not be invoked in civil revision. According to him correct address was given in the civil revision as mentioned by the plaintiff in his suit; that substituted service affected through publication of a notice in a leading newspaper circulated worldwide which was sufficient for service of the respondent No.1 who remained absent and was rightly proceeded ex-parte hence, no application could be entertained for setting aside of the ex-parte proceedings and order and that too beyond the prescribed period of limitation.
4. Conversely, learned counsel for plaintiff/respondent No.1 contended that the respondent No.1 was in Saudi Arabia in those days when the civil revision was pending, he produced copy of passport, which reflects his entry in Pakistan on 17.03.2018, exit from Pakistan on 10.05.2018, exit from Pakistan on 26.07.2018 and entry in Pakistan on 14.11.2018. He also contended that the learned revisional Court has rightly allowed the application and restored the civil revision for providing an opportunity of hearing not only to respondent No.1 but even to the petitioner as well. He supported the impugned order.
5. Since, the petition was not properly documented, as such, the parties were directed to place on file the attested copies of the order sheets of the learned revisional Court of C.R No.8/CR. In compliance, through C.M No.566-M/2023, attested copies of the order sheet of the civil revision were placed on file by the petitioner. Keeping in view the directions of this Court and for appropriate & just decision of the instant petition, the application filed by the petitioner for permission to place on file the documents appended therewith qua the contents of the application which are duly verified through an affidavit submitted by Ihsan Ahmad, the son of petitioner and with no objection from the respondent, this application stands allowed and the documents annexed therewith are read as part and parcel of the main petition.
6. Arguments heard and record perused.
7. It appears from the order sheets of the learned revisional Court that the revision petition was filed before the learned District Judge, Swat on 10.02.2018, which was entrusted to the Court of learned Additional District Judge/Izafi Zila Qazi-VI, Swat. On same day i.e., 10.02.2018, it was admitted for regular hearing and notices were issued to all the respondents including the respondent No.1/ plaintiff. Order sheet dated 28.03.2018 reflects that respondents No.4 & 5 appeared before the Court through their learned counsel, power of attorney/ wakalatnama was placed on file while respondent No.2 was proceeded ex-parte. The petitioner was also directed to submit correct particulars/ address of respondent No.8 and the matter was adjourned for service of respondents No.6 & 8 through affixation and notices for service of rest of the respondents was also issued. On 19.04.2018, the application of respondent No.2 for setting aside of the ex-parte proceedings was allowed while rest of the respondents, who were served through affixation, were proceeded ex- parte, however, the addresses of respondents No.9 & 12 were incomplete, as such, petitioner was directed for submission of correct particulars/ addresses of said respondents and thereafter an application was submitted by the present petitioner for service of respondents No.1, 6 & 8 through publication of notice in the newspaper, his application was allowed and publication was directed to be made in "Daily Khyber Peshawar". Notice was published in the said newspaper and received but when no one turned up before the Court, on 15.05.2018 respondents No.1, 6, 8, 9 & 12 were also proceeded ex-parte and the case was fixed for ex-parte arguments of the petitioner. After hearing the petitioner, the civil revision was allowed on 28.09.2018, which resulted into rejection of plaint of suit No.33/1. It is indisputable that respondent No.1 was not served personally. Similarly, no affixation was directed by the learned revisional Court to the extent of respondent No.1. The copies of passport which was produced during the course of arguments show his stay out of the country in Saudi Arabia during those days when he was placed ex-parte. It also appears from the record that the suit was filed by respondent No.1 against the defendants including the present petitioner and the main interest/concern with respect to the proceedings before the revisional Court was the service of plaintiff/respondent No.1.
8. It appears from the order sheets of the Civil Revision No.8/CR, filed on 10.02.2018 that there is no reference of appearance of respondent No.1 before the learned revisional Court, issuance of summons/notice, report thereon or refusal of service on the part of the respondent No.1 till 19.04.2018 when an application was submitted by the petitioner for service of respondent No.1 along with respondents No.6 & 8 through publication and on receipt of same, he along with other respondents were proceeded ex-parte on 15.05.2018. The spirit of order V of C.P.C is that before resorting to the provisions of rule 17 or rule 20 of ibid order V, the Court should observe the requirements regarding the personal service of the respondent/defendant and without taking a step to procure the personal service, rest of the exercises in that respect, would not be considered as lawful. The law ordains that service of the respondent/ defendant should be affected in person whereas if it is not at all possible, only then the substituted service under order V rule 20 C.P.C may be directed. The ibid rules postulate expressly the system of affecting the service upon the respondent. The provisions of order V rule 17 C.P.C are mandatory before adopting the method of substituted service while in the instant case, nothing is available on record regarding the report on the notice issued to respondent No.1 with regard to his service or otherwise rather it is not reflecting from the record that all due and reasonable diligence for procuring the service of the respondent No.1 were made but all of a sudden, an application has been moved, which was allowed by the learned revisional Court and notice was published in newspaper, which could only be resorted to when the Court was satisfied when there were reasons to believe that the respondent was keeping out of the way for the purpose of avoiding service or that for any other reasons, the summons could not be served in ordinary course. Failure to comply with anyone of requirements of procedural law would nullify the proceedings. In the case of "Syed Muhammad Anwar Advocate Vs. Sheikh Abdul Haq" (1985 SCMR 1228), it was observed that substituted service is permissible provided the Court records the reasons after being fully satisfied that service cannot be affected in ordinary manner and it cannot be taken as a matter or right. Since, the provision of order V rule 20 C.P.C are mandatory in nature and must be complied with strictly. The implementation of substituted service requires adherence to strict procedural requirements. Substituted service serves as an essential tool in ensuring effective communication within the legal system. It enables the progress of legal proceedings even when personal service is not possible, ensuring that parties are duly informed and given an opportunity to respond. By utilizing substituted service, the legal system strives to uphold the principles of fairness, transparency, and access to justice. Spirit of Order V of the Code is that before resorting to the manner of service provided under Rule 17, the Court would observe the requirements regarding the personal service of the defendant, failing which rest of the exercise in that respect would not be considered as lawful. In the case of Malik Muhammad Nazir versus Mian Abdul Raheem and another (PLD 1968 Lahore 792) it was held that "where there was no sufficient material on record to show that a defendant is either avoiding service or refusing to accept the service, the order for substituted service could not have been passed nor can ex-parte proceedings be ordered on the basis of such service." This Court in the case of Fazal Karim Vs Hussain Din (2019 MLD 1082), has observed that "limitation for filing application seeking setting aside of ex parte decree is 30 days but only for those cases where personal service has been effectuated otherwise it has to be reckoned from knowledge of applicant". After compliance of all other provisions of order V the substituted service could be directed and in such an eventuality issuance of notice through publication and placing a party ex- parte, shall be deemed to be as good as personal service.
9. Next, the question requires resolution through this petition was as to whether the learned revisional Court could restore the revision petition for the purpose of hearing in consonance with the provision of order IX and order XLI C.P.C? In the former case, the suit is restored while in the latter, the appeal is fixed for rehearing. Though there is no specific provision u/s 115 of Civil Procedure Code for revival of proceedings in revision, its restoration or fixation for hearing once it was decided, however, there is no specific restriction for following the provisions of order IX and those of order XLI C.P.C. One of the contentions of learned counsel for the petitioners was that the application of respondent No.1 could not be allowed being not permissible before the learned revisional Court but same is misconceived because the revision petition could be dismissed even in limine and later on it can be restored for the purpose of hearing on the application of the petitioner. Even after admission of the civil revision when it is dismissed in default either in absence of the respondent or in his presence, it can be restored. Recently in the case of "Mst. Jameela Bibi (deceased) through LRs Vs. Mst. Fatima Bibi (deceased) through LRs" (2023 SCMR 485), it has been held by the apex Court that once a revision petition is admitted for full hearing, it could not be dismissed for non-prosecution and if dismissed, for restoration of same provisions of Article 181 of the Limitation Act, 1908 shall be applicable. Relevant portion of the judgment of the apex Court in Mst. Jameela Fatima's case (supra) reads as under: "There is, however, no specific article, which deals with the application for restoration of civil revision dismissed in default, therefore, reliance has to be placed on Article 181 of the First Schedule to the Act, which provides that for an application for which no period of limitation is provided elsewhere in the Schedule the period of limitation is three years from the date when the right to apply accrues. In the present case, Article 181 is attracted and a period of three years is available to the petitioner to make an application for restoration of civil revision. See Ghulam Qadir and others v. Sh. Abdul Wadood and others" (PLD 2016 SC 712).
10. More-so, section 115 C.P.C prescribes no mode of service of respondent and .the revisional Court exercises the powers as provided under order V C.P.C for service of the respondent. The revisional Court even in accordance with the provision of order XLI rule 27 C.P.C may allow recording of additional evidence, direct the appointment of a local commission or may take any step necessary for the ends of justice as held by the apex Court in the case of Hazrat Bilal through legal heirs and others Vs. Mst. Spogmai and others" (PLD 2021 Supreme Court 700). While deriving wisdom from the supra judgment of the apex Court, it can safely be concluded that the learned revisional Court may adopt all those procedures provided in the Code of Civil Procedure, 1908, which have never been specifically or expressly barred because it is settled law that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibition cannot be presumed. The provisions of section 151 C.P.C, which empowers the civil courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, are intended to preclude the possibility of the civil courts being stuck in a situation for any omission in the C.P.C. The inherent powers of the civil Courts saved by section 151 are thus supplementary to their powers stated expressly in the C.P.C. and are to be exercised where the situation is not covered by any provision of the C.P.C. Reliance is placed on the case of Meera Shafi Versus Ali Zafar (PLD 2021 SC 211). There is no cavil to the settled law that that every procedure which promotes the administration of justice is permissible unless it is expressly prohibited. Ref: Muhammad Ijaz Ahmad Chaudhry Versus Mumtaz Ahmad Tarar and others (2016 SCMR 1). In the case of H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), it was held by the Hon'ble Supreme Court that the Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for; to give such a meaning to the omission would result in grave injustice ; and, the Court should proceed on the principle that every procedure, which furthers administration of justice, is permissible even if there is no express provision permitting the same. In the case of Imtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382), the Hon'ble Supreme Court was pleased to hold, that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. The contention of learned counsel for the petitioners that the order of the learned revisional Court allowing the revision petition could be assailed by the respondent No.1 before this Court but this submission too is misconceived because respondent No.1 has rightly opted to file application for restoration of civil revision by setting aside of the ex-parte proceedings and ex-parte decision and the learned revisional Court has rightly invoked the provision of order IX C.P.C while setting aside the ex-parte proceedings and ex-parte order.
Needless to say, that when the ex-parte proceedings and the order later on were not in accordance with the provisions of order V C.P.C for the purpose of service of respondent No.1 and whenever the Court comes to the conclusion that it has not adopted the procedure as provided under the law, it has got all the powers to rectify the error and to set aside its order.
11. The last submission of learned counsel for the petitioners that the learned revisional Court has set aside its order while sitting as a Court of appeal. This submission too is not legally correct because the revisional Court has gone through from the proceedings conducted while placing respondent No.1 as ex-parte and thereafter allowed the revision petition against him in his absence rather through impugned order, the learned revisional Court has discussed the entire facts qua the service of respondent No.1 by making reference of the order sheets.
12. Viewing the submissions of learned counsel for the parties, going through from the provisions of order V, order XLI and section 115 C.P.C in juxtaposition with the principle laid down by the apex Court in Hazrat Bibil through legal heirs and Mst. Jameela BM through legal heirs' cases (supra), I am of the considered view that the learned revisional Court has rightly invoked the provision of order IX C.P.C for providing an opportunity of hearing to respondent No.1 by restoring the civil revision of the present petitioner. Even otherwise, no prejudice has been caused to the petitioner because the civil revision is still pending adjudication before the learned revisional Court and same shall be decided after hearing both the parties in accordance with the principle of natural justice.
Rel: PLD 2012 SC 292, PLD 2011 SC 671, 2011 SCMR 1429, 2010 SCMR 1933, 2010 SCMR 970, 2010 SCMR 755, 2009 SCMR 808, 2008 SCMR 529, 2007 SCMR 330, 1993 SCMR 122. Writ of certiorari can only be issued when the learned fora below has flagrantly disregarded the law or acted against the provisions of law, which is not the case before this Court. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed, with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.