RAJA MUHAMMAD SABIR, J.--- This petition is directed against the judgment of Additional District Judge, Mianwali dated 18.12.1999 whereby he set aside the ex parte decree.
2. Briefly the facts of the case are that Muhammad Iqbal Khan petitioner filed a suit for possession through pre-emption against Mukhtar Ahmad Khan respondent wherein he was served for 21.6.1995 but he did not appear in the Court, hence the trial Judge decreed it ex parte on 18.4.1996.
3. The respondent submitted an application under Order IX, Rule 13, CPC for setting aside the ex parte decree alleging that he was not duly served in the aforesaid but as petitioner gave his wrong address and with the connivance of the Process Server procured wrong report and marked his fictitious and forged signatures, thus committed fraud with the Court. He stated that on 23.4.1996 his father Haji Nawaz Khan appeared in the said Court in a case titled "Nawaz Vs. Khan Mir Khan" and saw the petitioner going into the Court whereupon he asked Ahmad of the Court whereupon he was informed that petitioner brought a suit in the Court which was decreed ex parte. Father of the respondent thereafter submitted an application for the copy of the decree, received it on 6.5.1996 and filed the petition for setting aside the ex parte decree. The application was contested by the petitioner and the learned trial Judge framed the, following issues on the controversy involved between the parties:- Issues.
(1) Whether there are sufficient grounds for setting aside ex parte decree dated 18.4.1996? OPA.
(2) Relief.
4. After recording the evidence of the parties and hearing the learned counsel, the trial Court dismissed the application whereafter judgment of the trial Court was assailed by respondent in appeal. The order dated 10.5.1999 was reversed, appeal was accepted and judgment and decree dated 18.4.1996 were set aside. The trial Court was directed to decide the case on merits by giving proper opportunity to the parties to contest the same.
5. Learned counsel for the petitioner contends that the lower Appellate Court erroneously set aside the well-reasoned order of the trial Court refusing to set aside the ex parte decree. The judgment of the trial Court was based on proper appreciation of evidence. The respondent was served through Process Server who intentionally avoided appearance, therefore, learned Civil Judge was justified in dismissing his application. Relied upon Noor Muhammad Vs. Jamal Din and others (2000 CLC 305).
6. Learned counsel for the respondent conversely supported the impugned judgment and referred Mst. Jag Subhai v. Allah Diwaya and others (1992 MLD 1635), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 Supreme Court" 617), Sultan Muhammad v. Mst. Hamida Begum and 18 others (1970 SCMR 466), Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCMR 1233), Muhammad Azeem v. Muhammad Yousaf, etc. (NLR 1985 CLJ 373) and Muhammad Faryad v. Muhammad Asif (PLD 1993 Lahore 469).
7. I have heard the learned counsel for the parties at length and perused the relevant record.
Respondent himself appeared as AW1 and deposed that Zafar lqbal son of Shah Wali is known to him. He denied the signature on the summon Ex.R-1 as Ex.R-1/1. Father of the respondent appeared as AW2 who happened to be present in the Court informed his son and thereafter the application for setting aside the ex parte decree was made. He has supported the contents of the application.
In rebuttal, RW1 Sardar Khan, Process Server of District Courts appeared and stated that the summons Ex.R-1 contained his report Ex.R-1/1. When cross-examined deposed that Zafar identified the defendant as he has a shop in Mohallah Rani Khel and again said that the shop was of Muhammad Hayat son of Muhammad Yousaf and lqbal son of Haji Yousaf resident of Musa Khel lived 6-7 miles away from the aforesaid shop. There were three persons in the shop when he served Mukhtar defendant alongwith Zafar. The petitioner appeared as RW2 and stated that he has sent a registered envelope and the summons of the Court and delivered the registry Ex,R2 on the address of Mukhtar. He denied that he did not mention the name of Mohallah in his suit. He certified that he accompanied the Process Server on third occasion and contradicted himself of having gone with the Process Server twice. The report of Process Server shows that notice was served upon the defendant in presence of Zafar lqbal but Zafar lqbal has neither been produced by the plaintiff nor by the respondent. Without his evidence report of Sardar Khan, Process Server remain un- corroborated. Statement of petitioner is discrepant and unreliable. In the light of the averments made in the application, Process Server was in league with the plaintiff. His statement does not inspire confidence. In the absence of aforesaid evidence there is no satisfactory proof that the defendant was served in the suit by the trial Court.
8. Law favours adjudication of dispute brought in the Court on merit. All efforts should be made to decide the matter on merits instead of knocking out the parties on technical grounds. In the case of Muhammad Azeem v. Muhammad Yousaf, etc. (supra), it was held that evidence available on record not proving that defendant had been served in person. Judgement of the lower Court refusing application for setting aside ex parte order was reversed exercising revisional jurisdiction, ex parte decree was set aside and case was remanded. In the case of Muhammad Faryad (supra), ex parte decree was set aside by the trial Court on the ground that no independent person was present at the time of alleged refusal by the defendant to accept service of the summons. Process Server did not affix summon on the outer door or any other conspicuous part of the residence of defendant. Trial Court rightly found that resorting to substituted service was not warranted in circumstances. The order of the learned trial Court was not interfered. In the case of Mst. Jag Subhai (supra), application for setting aside ex parte decree was dismissed by the trial Court as well as by lower Appellate Court. High Court while exercising revisional jurisdiction held that valuable rights in properties of both the parties being involved, it was in the interest of justice that suit should have been decided after affording opportunity to parties to lead evidence. In such cases, law favours adjudication of rights of parties on merits rather than disposal of same in summary manner. Orders of both the Courts below were set aside and trial Court was directed to proceed with suit in accordance with law. Similar view was expressed in the other judgments cited by the learned counsel for the respondent. Judgment cited by learned counsel for the petitioner in the case of Noor Muhammad (supra) relates to mis-reading and non-reading of evidence.
Interpretation of Order IX, Rule 13, CPC was not involved in the aforesaid case; therefore, this judgment is not applicable to the facts of the present case. Moreover, learned lower Appellate Court for sound reasons disbelieved the evidence of Process Server and as such this judgment does not help the petitioner.
9. For the reasons stated above, this petition has no merit and is dismissed.