The relevant facts for the decision of this appeal are that the appellants acquired land measuring 287 Kanals 10 Marlas situated in chak No.Lll/7/R, Tehsil Chichawatni, District Sahiwal, through decree of the Civil Court. The respondents filed a suit for possession invoking superior right of pre-emption.
The suit was filed on 26-7-1981 in the Court of Senior Civil Judge. The same was retained on his file by Mr. Muhammad Ashraf Shagufta, the then Senior Civil Judge, Sahiwal. The suit was registered and came up for hearing on 27-7-1981. The trial Court ordered issuance of notices to the appellants-defendants for 7-9--1981 through registered post as well. The respondents deposited the process fees but did not furnish registered cover (envelope). The process server reported that the appellants were not available according to Abdul Khaliq, Driver of the appellants. The trial Court on the next date recorded that according to the report of the process server, appellant No.l was out of town while appellant No.2 was confined to hospital at place not known to the said Abdul Khaliq while defendant No.3 vendor was absent in spite of service, therefore, he was proceeded ex parte.
The trial Court thereafter proceeded to issue notice in the ordinary process as well as through the registered A.D. And ordered substituted service through publication of notice in 'Daily Wafaq' for 27- 9-1981. The plaintiffs once again deposited the process fees and expenses of publication of notice on 17-9-1981 but again omitted to furnish the registered cover. According to the noting of the Ahmad, the notices sent through process server came unserved. However, the same are not available on the file while the notice was published in 'Daily Wafaq' in its issue dated 25-9-1981. The trial Court in view of the publication of notice ordered ex parte proceedings against the appellants and thereafter proceeded to decree the suit ex parte without any further proceedings.
2. The appellants moved an application under Order IX, Rule 13 read with Section 151, C.P.C. For setting aside ex parte decree. The trial Court framed following issue:--
(1) Whether there are sufficient grounds to set aside the ex parte decree in dispute?"
3. The appellants examined Liaqat Ali as AW1 while the appellant No.l appeared as AW2 and appellant No.2 as AW3. The respondents-defendants in rebuttal examined Ghulam Fareed as RWl while respondent No.l appeared as RW2. The respondents also produced attested copies of summons issued to the appellants as RWl and RW2 while reports of the process server on these summons were exhibits marked as RWl/1 and RW2/1. The trial Court after hearing the arguments proceeded to dismiss the application vide order dated 17--12-1981.
4. Thereafter, the appellants filed present appeal in this Court. The same was admitted to regular hearing and notices were issued to the respondents. Heard learned counsel for the parties. The learned counsel for the appellants in support of the appeal has argued that since there was nothing on record to suggest that the appellants are intentionally avoiding the service or it was not possible to effect service on them in view of the ordinary manner, therefore, resort to the substituted service was illegal and without justification. It is added that without exhausting the mode of service under Rules 10 and 17 of Order V, C.P.C. The trial Court could not have resorted to service through publication of notice. The learned counsel in support of this arguments has relied on the cases of Muhammad Alamgir Hashmi v. Chairman, Union Council and others 1987 CLC 2230, 516, 453, Messrs Travel Express Limited v. Services Club and 2 others 1986 CLC 2642, Muhammad Shafiq and 3 others v. Gulber Khan and another 1984 CLC 2735, Begum Kishwar Abid Hussain and another v. Jhang Central Co-operative Bank Ltd., Jhang and 2 others PLD 1976 Lahore 1521, M.Yasin Siddiqui and 7 others v. Ch. Muhammad Boota 1983 CLC 1462 and Mst. Afzal Begum and others. v. Y.M.C.A. Through its General Secretary PLD 1979 SC 18.
5. The other argument was that there was no proof on record as to the copy of the newspaper containing notice having been sent to the appellants. In this behalf reliance is placed on the case of M. Yasin Siddiqui. It is added that there was no person by the name of Abdul Khaliq, who was employed as Driver by the appellants. In the alternative the argument was neither the process server nor the trial Court disbelieved the statement of said Abdul Khaliq, therefore, there was no justification to order substituted service and as such whole proceedings are bad in law and liable to be set aside.
6. In the end it was argued that the trial Court proceeded illegally and in undue haste resorted to substituted service and while doing so failed to notice that the plaintiffs mala fide were taking steps to ensure that the appellants were not served. It was emphasised that the failure to furnish registered letter on two different occasions was sufficient to support this argument of the appellants.
7. On the other hand, the learned counsel for the respondents has argued that since the plaintiffs had a superior right of pre-emption, therefore, the appellants intentionally did not appear and contest the suit. It is argued that in order to make out the defence they have shunted out their Driver, Abdul Khaliq and it is not believable that the Driver after making report on the summons as to non-availability of the appellants had not informed them as to the visit of process --server.
8.I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the relevant provisions and precedent cases. Now I proceed to deal with the points raised by learned counsel for the appellants with reference to counter arguments of the learned counsel for the respondents. The first and fore-most point for determination is whether there was sufficient material before the learned Senior Civil Judge to order substituted service. I have gone through the record. It shows that notice was issued for the first time for 7-9-1981. The respondents- plaintiffs only furnished the process fees but did not supply the registered envelope. The process- server reported that the appellants were not available. The learned lower Court after receipt of this report, proceeded to issue fresh notices through process-server as well as registered post acknowledgement due and also resorted to the substituted service through publication of notice in daily Wafaq. It is, therefore, clear that there was nothing on record to show that the appellants were avoiding service or it was not possible to effect service on them in the ordinary manner. On the other hand, the address of the appellants is proved to be correct and even the information by the said Driver of the appellants as to their non-availability was neither disputed by the process-server nor there was any material before the Court to ignore it.
9. It is condition precedent for resorting to substituted service that there should be material on record that the defendants are avoiding service or it is not possible to serve them in the ordinary manner. In this behalf, the learned counsel for the appellants has rightly referred to case of Malik Muhammad Nazir. In this case, notices issued to the defendants were not received back twice and the learned Civil Judge directed the substituted service. My learned brother Muhammad Akram, J.
As His Lordship was at that time concluded as under:-- "There is nothing whatever to show that the defendants had refused or avoided to accept service of the notices issued to them. In these circumstances, there was no material before the Court on 30-5-1961 to have ordered the service to be effected on the defendants by the substituted process by advertisement in the newspaper. Order V, rule 20 of the Code of Civil Procedure provides that where the Court is `satisfied' that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the same cannot be served in the ordinary way, the Court shall order the summons to be served in such other manner as it may deem fit" While in the case of Muhammad Alamigr Hashmi notice was issued to the petitioner defendant once through registered post and there after substituted service was ordered. My learned brother Muhammad Afzal Lone, J. Held as under:- "It is obvious, that only one notice by post was sent to the petitioner. Before resorting to substituted service by publication, no second attempt was made to serve him personally. He was in the service of Bahawalnagar Sugar Mills Limited, Chishtian. If he was out of station, his temporary absence did not amount to evasion. Unless it was found that the petitioner kept out of the way for the purpose of avoiding service or for other reasons he could not be served in the ordinary way, service through publication was not justified. A defendant on whom substituted service is effected, despite such service, can show, that he did not have knowledge of the proceedings filed against him by the opposite party. Evidently, the postal envelope was never presented to the petitioner for service and, therefore, it cannot be said that he was aware of the respondent's application before the Chairman. The learned Collector was wrong in holding that serious efforts were made to procure the petitioner's attendance, in fact this conclusion does not find support from the material on the record. In the circumstances of the case service by publication does not satisfy requirement of law and cannot be upheld."
In the end I would like to refer to case of Ram Bharose v. Ganga Singh A. R. 1931 All 727:-- "The object of issuing a summons is to inform the party against whom a suit has been instituted, of the fact, that there is a suit against him and if he so chooses, he may come and defend it. If that be the object of a summons, and if, for no fault of his own, a defendant was never put in a position to know that a suit had been instituted against him, whatever steps may have been taken for serving the summons on him, these steps can never be accepted as amounting to `due service'. When an order for substituted service is made by a Court, on the representation of a plaintiff, only one side is present before the Court and it acts on the representation of one party. Obviously it should be open to the defendant, when he appears, to show that the method employed was not calculated to effect the purpose, which the Court had in view, namely, informing the defendant of the institution of the suit. If this is so, the Court has to consider, in view of all the circumstances of the case, for example the place where the defendant was when the summons was issued to him, where and how the summons was served, and so on, in order to see whether there was due service."
10. 1 am, therefore, of the clear view that there was no justification to resort to the substituted service specially in view of the fact that plaintiffs had themselves not complied with the order as to furnishing of registered letter thereby kept an independent agency namely postal Department, out of picture for purpose of service. This is not all even the substituted service in this case cannot be called due service. Therefore, ex parte order could not have been made against the defendants and ex parte decree passed. The learned counsel for the appellants in this behalf has argued that neither notice was ordered to be affixed, at the last known residence of the appellants nor at a conspicuous place outside the Court house nor copy of the newspaper was shown to have been sent to the appellants as required under High Court Rules and Orders nor sufficient time was allowed between publication of notice and orders of ex parte. The learned counsel in support of his arguments had referred to case of M. Yasin Siddiqui and others. In this case, no copy of the newspaper carrying the notice was shown to be sent to the respondents as required under rule 8 Chapter 7 (B) Vol. IV of the High Court Rules and Orders. The relevant portion of the rule reads as under:- "In sending a judicial notice for publication in a newspaper, the Court should, in the covering letter, required the manager of the newspaper to send, under postal certificate, the copy of the paper containing the notice to the party for whose perusal it is intended at the address given in the notice, marking the notice in question with red ink, he should also be required, as proof of compliance with this order, to attach the postal certificate to his bill when submitting the latter to the Court for payment."
11. My learned brother Khalil -ur-Reluuan Khan, J. After referring the above noted provisions held as under:- "Had this rule been complied with and the postal certificate had been on record, then it could be said that a presumption of fact should have been raised about the reading of the notice. This was admittedly not done. As such the learned Trial Court acted with material irregularly in proceedings ex parte as well as the ex parte decree passed on the basis thereof." In the case of Mirza Farooq Baig, the learned Judge held as under:- "The argument of the learned counsel for the respondent is that in this case notice was affixed upon some conspicuous part of the appellant's shop, published in `Daily Mashriq', dated 14-9-1984 and also the notice was sent through registered post A.D. And that all these were sufficient compliance with Rule 20 of Order V of the Code of Civil Procedure. His contention is that the words `or in such other manner as the Court may think fit' occurring in Rule 20, sub-rule (1) give sufficient discretion to the Court not to comply with the first condition as to fixing of summons upon some conspicuous place in the Court house. This to my mind, is not correct reading of Rule 20. What it means is that the summons must be affixed in Court-house. In addition to that, it should be affixed at the conspicuous part of the residence of the person sought to be served or in such other manner as the Court thinks fit. I am of the humble view that the provisions of Order V, Rule 20 C.P.C.
Are mandatory and the failure to comply with anyone requirement thereof nullifies the whole proceedings." While in the case of M.Saadullah and 28 others trial Court issued repeated notices but were not served on the defendants, thereafter, plaintiff filed an application for substituted service which was allowed and notice published in "Morning News Karachi" and on basis of this notice, ex parte proceedings were ordered against the defendants/petitioners. They moved for setting aside ex parte decree but that was dismissed then they invoked the Constitutional jurisdiction. Learned Division Bench held as under:- "The petitioners had never been served with any Court motion notice nor their counsel was ever served with the same, still further there is no endorsement of any bailiff that any of the petitioners had ever refused to receive any Court motion notice of the suit after 24-11-1976. We also wish to emphasize that there was no report from any bailiff on record nor any affidavit by the respondent No.l that the petitioners were avoiding to receive the said Court motion notices, therefore, there was hardly any justification to resort to the substituted service of notice under Order V, rule 20 C.P.C."
Thereafter, the learned Division Bench after referring provisions of Order 1, rule 8, C.P.C. Held as under:- "The main provision of Order 1, Rule 8 emphasizes service of notice/summons personally and, therefore, it is obvious that even in respect of representative suit the service has to be effected on the person concerned and if substituted service has been rendered necessary, in the circumstances of that case, then order to that effect has to be passed and not otherwise. But in this case there i5 no conscious application of mind shown to have been made by a Civil Judge and hence, the order of service of notice by publication was without the necessary foundation." The learned Division Bench accepted the petition and set aside ex parte decree in Constitutional jurisdiction.
11. In this case, substituted service through publication of notice was ordered on 7-9-1981 and the suit was adjourned to 27-9-1981. Notice for publication was issued on 17-9-1981 while the same was published in the issue dated 25-9-1981. There was hardly any time for sending the copy of the newspaper to the appellants. It is clear from the remark of the Ah]mad made in the margin or the order sheet that even the newspaper was not received in the Court till 26-9-1981. These remarks `were however scored of by someone and added `notice received'. It is clear from the copy of the newspaper available on record that the same was not sent through post to the Court. There is no certificate from the Manager of the Newspaper as to the dispatch of the copy to the defendant. The notice should have been published within reasonable time before the next date of hearing but in this case, everything was done in undue and illegal haste. Therefore, service cannot be called "due service" as held by Hon'ble Supreme Court in the case Mst.Afzal Begum. Since the substituted service was ordered without justification and the same was not due service therefore, order of ex parte proceedings against the appellants is bad in law and along with the same ex parte decree becomes illegal.
12. The learned counsel for plaintiffs tried to spell out knowledge of the appellants as to the pendency of the suit in order to defend the order of the lower Court but the conduct of the plaintiffs clearly provided that they had taken all measures to obtain an ex parte decree. This is clear from the fact that they were directed on both occasions to furnish registered letter for the service of the appellants but they did not comply with the orders. The Court absolutely ignored this important aspect.
13: The other argument was that the plaintiffs had a fool proof case on merits and the appellants intentionally did not appear. The plaintiffs in this behalf have examined RWl whose statement does not inspire any confidence. Even otherwise, if the plaintiffs were so sure of their success, then it passes one's comprehension why they adopted underhand means to secure an ex parte decree F against the appellants. Anyhow, I am not concerned with the merits. It is for the trial Court to give verdict. It is not possible to justify the order of the trial Court.
14. The upshot of this discussion is that this appeal is allowed, impugned order dated 17-12-1981 is set aside and the application of the appellants for setting aside ex parte order and decree dated 27-9-1981 is allowed with costs throughout. The result is that the suit will be deemed pending in the Court of learned Senior Civil Judge, Sahiwal, who shall decide the same in accordance with law.