' The petition is addressed against the order of learned Sub-Judge, Mirpur, passed on May 30, 1990, whereby ex parte decree passed in favour of the petitioner and against the respondent on January 17, 1989, was set aside.
2. Purvaiz Akhtar brought a suit for restitution of conjugal rights and perpetual injunction against Mst. Salma Mumtaz, Fazal, her father and Mst. Fatima Bibi, grandmother, in the Court of Sub-Judge, Mirpur, on August 6, 1985. It was averred that the marriage of Purvaiz Akhtar with Mst. Salma Mumtaz took place on July 15, 1985. A sum of Rs,8,000 was fixed and paid as dower money. Mst.
Salma Mumtaz lived with Purvaiz Akhtar as his wife for a week after the marriage when she visited the house of her parents and thereafter declined to come back. The defendants repudiated the aforesaid averments in their written statement and further alleged that Mst. Salma Mumtaz was not wife- of Purvaiz Akhtar. The suit was mala fide and no cause of action was available to the plaintiff. The written statement was filed on December 3, 1985 through Mr. Muhammad Yunus Arvi, Advocate. On that day, the Presiding Officer was on leave, therefore, the case was adjourned to January 9, 1986. On that day, the parties were summoned for their statements prior to framing of issues. On March 4, 1986, the day when the parties had to appear for their statements before framing of issues, no one appeared before the Court, as such the suit was dismissed for want of prosecution. An application for restoration was moved in consequence of which the suit was restored on April 25, 1987. The parties were directed to appear before the Court on June 19. As June 19, was a closed day, the case was taken up on the next day. The defendants and their counsel were absent on that day, as such it was deemed expedient to issue notices to the defendants. After various adjournments, Fazal, respondent No,2 alone was served for his appearance before the Court, on December 26. Mst. Salma Mumtaz and Mst. Fatima Bibi were not served and Process Server made a report accordingly. On December 26, the Presiding Officer was on leave, presence of the Counsel for the parties was recorded. The proceedings, were adjourned for 11 times when on September 27, 1988, plaintiff was present but none of the defendants appeared before the Court, as such ex parte order was made. The plaintiff was directed to lead ex parte evidence. Ex parte evidence was closed on January 16, 1989 and ex parte decree was passed on January 17, 1989, the next day. On September 10, 1989, an application to set aside the ex parte decree was moved by Mst.
Salma Mumtaz alone. It was averred that the ex parte decree was passed in absence of due service of summons on the defendant-applicant. She came to know of the ex parte decree immediately before filing of the application, as such, the same was desired to be set aside. The application was opposed by the present petitioner. The learned Sub-Judge framed issues. The onus of issues was on Mst. Salma Mumtaz. She appeared as a witness on January 25, 1990 and testified that the suit instituted against her was dismissed for want of prosecution. It was restored without her knowledge. As she was not duly served, she could not appear before the Court, in consequence of which cx parte decree was passed against her. In answer to a question in cross- examination, she was unable to identify her thumb-impression on the power of attorney executed in favour of her counsel. She was also unable to explain as to whether she was represented by Mr. Muhammad Yunus Arvi, Advocate, before the dismissal of the suit for non-prosecution. It was further explained that her father regularly appeared in the Court to defend the suit. No evidence was led in rebuttal. The learned Sub-Judge relying on the testimony of Mst. Salma Mumtaz, felt persuaded to set aside the ex parte decree and reopened the case for its decision on merits. This order has been assailed in the present petition.
3. On the last date, after partly hearing the arguments, it was deemed expedient to examine Mr. Muhammad Yunus Arvi, Advocate as a Court witness so as to enable this Court to resolve the controversy conclusively. The statement of Mr. Muhammad Yunus Arvi, Advocate was recorded. He testified that he was engaged by the defendants to defend the suit of Purvaiz Akhtar. The suit was dismissed for want of prosecution. Thereafter, he received no notice from the Court for his appearance on behalf of defendants. He received no instructions from the defendants to defend them in the suit. He denied his appearance in the Court, after the restoration of the suit. In answer to a question in cross-examination, he emphatically denied having appeared in the Court on July 6, 1988. For this was the date when the interim order showing the presence of the counsel for the parties was recorded in the hand of the Presiding Officer himself. Much emphasis was laid on the aforesaid order as all other interim orders except the order of September 26, were recorded in the hand of the Clerk of Court.
4. Mr. Riaz Alam, the learned counsel for the petitioner assailed the finding of the learned Sub- Judge and argued that the learned Sub-Judge acted wrongly in setting aside the ex parte decree.
In presence of service of summons on Fazal, father of Mst. Salma Mumtaz, for his appearance on December 26, 1987, Mr. Muhammad Yunus Arvi, Advocate who represented all the defendants, appeared in the case under the instructions of his clients. As the appearance of the counsel was repeatedly endorsed in all the interim orders, including the order of July 6, 1988, there was a definite presumption to believe that the Counsel representing the defendants had appeared in the case. In this view of the matter, it was argued that the notice was duly served on the defendants and their absence to appear was a wilful fault, as such ex parte order passed on September 27 and ex parte decree of January 17, 1989 were valid in the eye of law. In order to set aside ex parte decree, heavy onus was placed on the defendant respondent to satisfy the Court that she was not duly served or there was sufficient cause by which she was prevented to appear in the Court when the case was called on for hearing. Such onus was not discharged in the eye of law. Mr. Aurangzeb, the learned counsel representing the respondent, controverted the aforesaid objections and supported the impugned order with reference to the evidence of Mst. Salma Mumtaz.
5.
5. The rules of procedure attracted in the proposition to seek setting aside of ex parte decree as contemplated under Rule 13 of Order 9, C.P.C. Postulate that the defendant may apply to the Court by which decree was passed for an order to set it aside; and if he satisfies the Court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court was empowered to set aside the decree as against him upon reasonable terms. The provisos described therein are not applicable to the proposition under consideration, as such they need not be reiterated.
6. A defendant seeking setting aside of ex parte decree has to satisfy the Court that:--
(i) summons was not duly served on him; or
(ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.
' Either of the aforesaid 2 conditions is to be fulfilled to set aside the ex parte decree. It is not essential that both the conditions should be satisfied simultaneously as satisfaction of either of the conditions was sufficient in the eye of law, to recall the ex parte decree. In the present case, the ground alleged by the defendant to set aside the ex parte decree rested on the former condition, viz., that the summons was not duly served upon the defendant.
7. Before taking up the point of due service of summons on the defendant-respondent, it is relevant to state as to what is the 'due service of summons on a party'. The mode of effecting service of summons has been evolved within the framework of the provisions of Order 5, C.P.C. Rules 10, 12, 13 and 15 are relevant rules to the mode of service. Rule 10 precisely provides that service of the summons shall be made by delivering or tendering a copy thereof to the. Defendant. When summons is served personally on the defendant by delivering or tendering its copy to him, ordinarily, it is deemed a substantial compliance with the provisions relating to due service of the summons. Rules 12 and 13 provide a scheme of service through agent of defendant. Rules 15 next, lays down that where the defendant cannot be found and he has no agent to accept service, in that position, service may be made on any adult male member of his family who resided with him.
In present case, the summons addressed to defendant-respondent, admittedly, was not served on her in either of the aforesaid manneRs, Therefore, there is no way out except to hold that the defendant-respondent was not duly served to appear before the Court.
8. The other aspect of the proposition as suggested by the learned counsel for the petitioner, is that Fazal, one of the defendants was properly served. He informed the counsel who represented all the defendants, including the respondent and the counsel put up his appearance before the Court.
Thus, appearance of the counsel in the Court was a sufficient compliance with the provisions laid down under Order 5 of the Code. The question relating to appearance of the counsel is a question of fact. The interim orders showing the presence of the counsel of the defendants, were recorded by the Clerk of Court. Mr. Muhammad Yunus Arvi, the learned counsel who represented the respondent, appeared as a witness and testified that he never appeared in the trial Court after the dismissal of the suit in default. His testimony was tested by cross-examination. On going through his testimony, there is no reason to disbelieve him in order to sustain the objection. The position is rather otherwise as against the testimony of an Advocate, there is no counter-evidence to neutralize the stand taken by the Advocate. The Clerk who recorded the interim orders, was readily available but he was not produced to rebut the testimony of Mr. Muhammad Yunus Arvi, Advocate.
9. The interim order recorded by the Presiding Officer, of course, carries initial presumption in its favour but such presumption is rebuttable. Mr. Muhammad Yunus Arvi who appeared as a Court witness, emphatically denied to have ever appeared in the Court of Sub-Judge after dismissal of the suit for want of prosecution. Therefore, in presence of tangible evidence of an Advocate, the initial presumption attached to the order of the Presiding Officer stands rebutted. Moreover, the defendant-respondent cannot be punished on account of knowledge of one of the defendants, relating to hearing of the suit. This is so as a defendant is not presumed to have knowledge of the proceedings on account of knowledge of its relative or a co-defendant. In such situation, it is seldom deemed expedient to decline to set aside ex parte decree. The refusal on the basis of such circumstances is least justified. In an identical situation in Haji Abdul Qadar's case (1980 CLC 1206), Mr. Justice Khurshid Ahmad served that refusal to set aside ex parte decree on the basis of knowledge of the proceedings on account of relationship, in the circumstances of the case, was not justified.
10. The other limb of the argument as analysed earlier, relates to appearance of the Advocate, on account of service of the summons on Fazal, a co-defendant. It is already observed that Mr. M.Y.
Arvi emphatically denied his knowledge of service of summons through co-defendant. He also denied having received instructions from the defendants to appear in the case. In Malik Muhammad Nazir's case (PLD 1968 Lah. 792), the Presiding Officer, in addition to defendants, also issued notice to their Counsel for appearing in the Court. Notice was not served on the defendants but the counsel who received the notice, failed to appear in the Court on the due date. Service of summons on the counsel was not deemed sufficient compliance with the rules of procedure. In that case, as the defendant was not duly served in ordinary manner, substituted service was effected by issuing proclamation in one of the Daily newspapeRs, The learned Judge arrived at the conclusion that neither the service on the counsel nor the substituted service was sufficient compliance of the provisions in the eye of law, as such ex parte decree passed thereafter was set aside.
11. Mr. Justice Dorab Patel, an eminent Judge of the country, observed in M/s. S.M. Rail Allawala's case (PLD 1971 Kar. 756) that when the defendant was not found guilty of gross negligence, ex parte decree could not sustain. The learned Judge was of the view that mere negligence of defendant to appear in the Court did not warrant a severe action in the manner of ex parte decree unless Court was satisfied that he was guilty of gross negligence.
12. The rule of `audi alteram partcm', as a salutary rule, has gained much importance in civilised States of the world. It is equally a weighty rule in the administration of justice contemplated by injunctions of Islam. This is how it is insisted upon that no one should be deprived of civil liberties and property unless provided due opportunity of hearing. In presence of consensus of superior judiciary of the Sub-Continent, it is invariably deemed expedient not to punish a party on account of its minor negligence in defending an action in the Court of law unless such negligence was found accompanied by wilful and deliberate act of defendant. The rules of procedure lay emphasis on due service of summons on a party so that such party was not deprived of its valuable right without providing an opportunity of defence. In the present case, as noticed earlier, the suit was dismissed for want of prosecution and thereafter it was duly restored. Ordinarily, it was advisible to provide an opportunity to defendants to defend the cause. Undoubtedly, summons was issued on various dates but the same was not proved to have been duly served on the respondent. In such situation the respondent cannot be burdened with the liability of ex parte decree for restitution of conjugal rights and perpetual injunction. Here, it is relevant to mention that Mst. Salma Mumtaz admittedly, was married to one Asghar Khan and there were already 3 children out of the wedlock.
In such circumstances, if the ex parte decree passed against her is allowed to continue, it was going to bring disastrous effect on her life including the lives of the children. Therefore, the interest of justice demands that she should be afforded an adequate opportunity to defend the action brought against her. For it is always deemed fair and just to decide a case on merits instead of deciding it ex parte.
13. The learned Sub-Judge rightly set aside ex parte decree and re-opened the case for its decision on merits. There is no defect in the impugned order. It is, therefore, upheld. The petition is dismissed.
However, no order as to costs.