PLJ 2021 Lahore 654
[Rawalpindi Bench, Rawalpindi]
Present: Mirza Viqas Rauf, J.
YAQOOB ALI (Deceased) through his Legal Heirs and others--Petitioners
versus
MUHAMMAD AYUB and others--Respondents
W.P. No. 1447 of 2017, heard on 15.4.2021.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--A decree was sought by petitioners that they are owners in possessions of suit land--Respondents were proceeded ex-parte and finally after recording of ex-parte evidence suit was decreed--Respondents on attaining knowledge moved an application under section 12(2) of Code of Civil Procedure seeking annulment of ex-parte judgment and decree passed in favour of petitioners--Application was though resisted by petitioners but it was accepted--Assailed said order through a revision petition before ADJ but revision petition was dismissed--Concurrent findings are suffering with material illegalities and as such are not sustainable--Application was rightly accepted by Courts below and concurrent findings are unexceptionable--Application under section 12(2) “C.P.C” was not deciding summarily rather fate of case was determined after framing of necessary issues and recording of evidence of both of sides. Record is indicative of fact that both sides being conscious of controversy produced their evidence which was appraised by Courts below in a beneficent manner--Even otherwise glaring flaws in mode of service are floating on surface of record which were sufficient to erode validity of ex-parte judgment decree--There are concurrent findings of facts recorded by both Courts below. It is trite law that writ jurisdiction should be exercised rarely and sparingly--This petition fails and is hereby dismissed.
[Pp. 657, 658, 661 & 664] A, B, C, F & I
Civil Procedure Code, 1908 (V of 1908)--
----O. V, R. 17--Return of summons--Examine Serving Officer on oath--Due service of summons is not a formality but a matter of such importance that Courts are obliged that before deciding service to be sufficient must be satisfied that all requirements of law have been strictly compiled with--Where a summon is returned under Rule 17 aforesaid duly verified, serving officer shall be examined on oath and may make such inquiry in matter as it thinks fit and after his full satisfaction to proceed further--Proper procedure was not observed in effecting service upon respondents--No active or concrete effort was made for their personal service--Resort to substituted service in circumstances was not only highly unwarranted but sketchy--Process of service was thus on one hand tainted with procedural material irregularities and on other fraught with illegalities--It is also evident that Court while decreeing suit acted in haste, which casts serious aspersions on proceedings of trial as well. [Pp. 662 & 663] G & H
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13, Ss. 96, 114 &12(2)--Ex-parte degree--Aggrieved person--Remedies--It is trite law that against an ex-parte decree several remedies are available to an aggrieved person out of which first can be an application under Order IX Rule 13 “C.P.C.” second a review application under Section 114, third and appeal under section 96 and fourthly an application under section 12(2)of code--When decree is product of fraud, misrepresentation and coram non judice--By virtue of sub-section (2) a Court was vested with power to set at naught its own judgment, decree or order if same is product of fraud, misrepresentation or lack of jurisdiction.
[P. 659 & 660] D & E
1993 SCMR 710, 2005 SCMR 1848, 2014 CLC 914, 2004 SCMR 843, PLD 2018 peshawar 154, 2000 SCMR 296, 2003 CLC 1011, 2000 CLC 530, 1994 SCMR 1110, 2019 SCMR 919, 2020 SCMR 2155 ref.
M/s. Muhammad Shahzad Shaukat and Malik Muhammad Kabir, Advocates for Petitioners.
Mr. Muhammad Ilyas Sheikh, Advocate for Respondents
Nos. 1 to 8(iv).
Mr. Tanveer Iqbal Khan, Advocate for Respondents Nos. 9(i) & 9(ii).
Ch. Shamas Tabraiz, Assistant Advocate General Punjab for Respondents Nos. 10 & 11.
Date of hearing: 15.4.2021
Judgment
This single judgment proposes to decide instant petition (Writ Petition No. 1447 of 2017) as well as Writ Petition No. 2954 of 2017 on account of involvement of similar questions of facts and law in both these petitions. Needless to observe that the petitioners in the former petition shall be treated as “petitioners” whereas the private respondents, who are also petitioners in the connected petition shall be treated as “respondents” for the purpose of convenience.
2. Facts in brief necessary for adjudication are that the petitioners instituted a suit for declaration, permanent and mandatory injunction against the “respondents” before the learned Senior Civil Judge,
3. On the contrary, connected petition (Writ Petition No. 2954 of 2017) is impugning the order dated 12th September, 2017 passed by the Additional Deputy Commissioner,
4. Though both these petitions are still at pre-admission stage but with the concurrence of learned counsel for the parties, these are treated as pacca cases and decide as such.
5. Mr. Muhammad Shahzad Shaukat, Advocate learned counsel for the petitioners contended that application under Section 12(2) “C.P.C.” does not disclose any valid ground for interference with the ex-parte judgment. It is added that grounds on which the application was founded are not sufficient enough to set at naught the well- reasoned ex-parte judgment and decree. Learned counsel emphasized that no cogent evidence was produced by the “respondents” to prove that service was defective. It is argued that the Courts below while allowing application under Section 12(2) “C.P.C.” proceeded on wrong premises. Learned counsel submitted that concurrent findings are suffering with material illegalities and as such are not sustainable. Placed reliance on Lal Din and another vs. Muhammad Ibrahim (1993 SCMR 710), Sain vs. Government of
N.-W.F.P. throush Secretary, Augaf and 2 others (2005 SCMR 1848) and Muhammad Younas vs. Umar Hayat and another (2014 CLC 914).
6. Conversely M/s. Tanveer Iqbal Khan, Advocate as well as Muhammad Ilyas Sheikh, Advocate learned counsel for the “respondents” seriously controverted the contentions of the former. It is contended that suit was decreed in haste. Learned counsel submitted that substituted service of the “respondents” was directed without adverting to the mandatory provisions of law. It is contended that the process of service was not only defective but collusive as well. Learned counsel argued with vehemence that the application was rightly accepted by the Courts below and concurrent findings are unexceptionable. In order to supplement their contentions, learned counsel placed reliance on Muhammad Aslam and others vs. Mst. Kundan Mai and others (2004 SCMR 843) and Mehr Din through Legal Heirs vs. Azizan and another (1994 SCMR 1110).
7. Learned Law Officer on the other hand submitted that revenue authorities have proceeded in accord with the judgment of the
8. Heard. Record perused.
9. Suit at hand was instituted by the petitioners on 17th December, 2008, whereby they sought a declaration to the effect that they being the legal heirs of Saffu son of Ladhu are owners of the suit land, which was wrongly recorded in the name of Saffu (son of Dinu who was predecessor-in-interest of the “respondents”. The “respondents” were proceeded ex-parte on 28th March, 2009 by the Civil Court after resorting to mode of substituted service and finally suit was decreed ex-parte vide judgment dated 18th April, 2009.
10. A petition under Section 12(2) “C.P.C.” was moved by the “respondents” seeking annulment of ex-parte decree on multiple grounds, including fake reports qua service. It was asserted in the application that ex-parte decree was obtained through fraud and misrepresentation. The petition was seriously resisted by the petitioners, who submitted their comprehensive reply. In view of serious divergence in the respective stances of the parties, the learned Civil Judge deemed it appropriate to encapsulate the matter in controversy in the issues to the following effect:
ISSUES
i. Whether Respondents Nos. 1 to 14 has obtained the impugned judgment and decree dated 18.04.2009 by committing fraud, forgery and misrepresentation on the basis of fake reports? OPA
ii. Whether instant petition is not maintainable on its present form? OPR
iii. Relief.
11. Before adverting to the propriety of the judgments of the Courts below it would be apt to observe that Section 12(2), “C.P.C.” recognizes three eventualities for setting at naught a judgment, decree or order, which reads as under:
“12. Bar to further suit.--(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”
(Underlining supplied for emphasis).
It is thus manifestly clear from the above that a judgment, decree or order can be annulled by the Court, who passed the same if it is the product of fraud, misrepresentation or coram nonjudice.
12. From the contents of petition under Section 12(2), “C.P.C.” it clearly evinces that the “respondents” have mainly called in question the vires of ex-parte judgment and decree on the ground that it is founded on the fake and fictitious reports qua service. This was the reason that issue No. 1 was specifically framed to this effect.
13. There is though a reasonable force in the contention of learned counsel for the petitioners that the Courts below have mainly adverted to the merits of the case while pondering upon the petition under Section 12(2) “C.P.C.” but at the same time one cannot lost sight of the fact that the core issue was also addressed by both the Courts unequivocally. Needless to observe that any deliberation on the merits of the case would certainly cause prejudice to the case of any of the side before the learned trial Court, so avoidance and restraint is more feasible.
14. It is trite law that against an ex-parte decree several remedies are available to an aggrieved person out of which first can be an application under Order IX Rule 13, “C.P.C”, second a review application under Section 114, third an appeal under Section 96 and fourthly an application under Section 12(2) of the Code ibid when the decree is the product of fraud, misrepresentation and coram non judice. It is always upon the suitor to opt any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he had to elect and or choose from amongst host of actions or remedies available under the law. The “respondents” thus opted to move an application under Section 12(2), “C.P.C.” with the assertion that they were proceeded ex-parte on account of fake and faulty service reports. Reference in this respect can be made to Government of N.W.F.P. through Secretary Works and Services Department Peshawar and another vs. Messrs CEMCON (Private) Ltd. through Managing Director (PLD 2018 Peshawar 154).
15. Sub-section (2) of Section 12, “C.P.C.” provides a remedy to an aggrieved person to challenge the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. An application to this effect lies before the Court, which passed the final judgment, decree or order. Sub-section (2) of Section 12, “C.P.C.” was added by virtue of the Code of Civil Procedure (Amendment) Ordinance, 1980 in the following manner:
“2. Amendment of Section 12, Act V of 1908.--In the Code of Civil Procedure, 1908) (Act V of 1908), hereinafter referred to as the said Code, section 12 shall be re-numbered as sub-section (1) of that section and, after sub-section (1) re-numbered as aforesaid, the following new subsection shall be added namely:
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”
Prior to insertion of sub-section (2) the person aggrieved has to institute a suit for the said purpose. By virtue of sub-section (2) a Court was vested with the power to set at naught its own judgment, decree or order if same is the product of fraud, misrepresentation or lack of jurisdiction. An application under Section 12(2) “C.P.C.” can either be decided summarily or after framing of necessary issues. Reliance in this respect can be placed on Muhammad Aslam and others vs. Mst. Kundan Mai and others (2004 SCMR 843) and Mrs. Amina Bibi through General Attorney vs. Nasrullah and others (2000 SCMR 296).
16. It is an inalienable right of every party to the lis to have a fair and ample opportunity to plead and defend his/her cause before the Court. The main object of service of summons is that defendant should have notice of case against him and the Court in which he has to appear. The defendant should be given requisite information at a time when he is able to appear and defend the suit. In order to ensure due service all that is required is that there should be substantial compliance with the provisions relating to service of summons. Due service is the first fundamental right of a person, who has to defend his cause before Court of law which is even duly recognized by the principles of natural justice. Due service of summons is not a formality but a matter of such importance that Courts are obliged that before deciding the service to be sufficient must be satisfied that all requirements of law have been strictly complied with. This becomes more inevitable when the service is not personal but substituted.
17. Order V “C.P.C.” relates to issue and service of summons. Ex- parte proceedings were ordered against the “respondents” while resorting to the mode of substituted service through publication in newspaper. Order V Rule 20, “C.P.C.” prescribes the mode of substituted service, which is reproduced below for ready reference and convenience:
“20. Substituted service.--(1) 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 summons cannot be served in the ordinary way, the Court shall order for service of the summons by--
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or earned on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or
(c) urgent mail service or public courier services; or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may think fit;
Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously.
Effect of substituted service.--(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Where service substituted time for appearance to be fixed.--(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require which shall not ordinarily exceed fifteen days.”
Though Rule 20 provides the mechanism of substituted service but before resorting to said provision of law it is incumbent upon the Court to ensure the compliance of Rules 16, 18 & 19 of Order ibid.
18. In terms of Rule 16 it is obligatory for a serving officer who delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, that he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Rule 18 further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Rule 19 further goes on to lay down the procedure for the Court that where a summon is returned under Rule 17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further. The provisions mentioned hereinabove are not illusory but it is bounden duty of the Court to make substantial compliance of the same before directing the substituted service in terms of Order V Rule 20, “C.P.C.”. The Court for the said purpose has to satisfy itself that all the efforts to effect service in the ordinary mode have failed. Non-adherence to the mandatory provisions would render the process invalid and the edifice built thereon would automatically fall down. Reliance in this respect can be placed on Mrs. Nargis Latif vs. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Mubarak Ali vs. First Prudential Modaraba (NLR 2010 Civil 405), Haji Akbar and others vs. Gul Baran and 7 others (1996 SCMR 1703) and Fatal Hussain vs. Mst. Husna Bano (1995 MLD 170).
19. In the case of WAPDA vs. Ghulam Hussain (2000 CLC 530) this Court, while outlining the scope and object of Order V, Rule 20” “C.P.C.” held as under:
“12. The object behind substitutive service is that the defendant may either himself learn about the proceedings pending against him in the Court, or he may be informed by some other person, who has read such notice in the newspaper, in case the , defendant has not read the same. Another object behind service through publication is that the proceedings in the suit may continue and the same may not be defeated, merely because the defendant cannot be served with summons in the ordinary manner.
13. The petitioner had made no attempt to avoid acceptance of service in ordinary way. The Trial Court by ordering substitutive service without justifying the legal position had proceeded against the petitioner ex parte.
14. Notice of a proceedings is a basic right of party and notice by substituted service cannot be ordered unless Court comes to the conclusion that party was avoiding service of notice or personal service was not reasonably practicable upon all defendants. Mere issue of notice several times upon the defendants/party without any report of bailiff, that it was not reasonably practicable for him to serve such notice, would not lay foundation for publication of notice. In this context a reference can be made to a case of M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643, Major Taj-ud-Din and others v. Muhammad Akhtar and others 1989 CLC 2183, Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67, Javed Raza v. Razi Ahmad 1991 MLD 2602, Major (Retd.) Muhammad Yusuf Baig v. Mst. Saeeda Parveen 1984 CLC 668.”
Reliance in this respect can also be placed on Syed Sajjad Hussain Shah vs. Messrs Federation of Employees Cooperative Housing Societies Ltd. through General Secretary (2003 CLC 1011).
20. A glimpse of record made it abundantly clear that proper procedure was not observed in effecting service upon the “respondents”. No active or concrete effort was made for their personal service. The resort to the substituted service in the circumstances was not only highly unwarranted but sketchy. The process of service was thus on the one hand tainted with procedural material irregularities and on the other fraught with illegalities. It is also evident that the Court while decreeing the suit acted in haste, which casts serious aspersions on the proceedings of trial as well.
21. There can be no second opinion with regard to the principles enunciated by the Hon’ble Apex Court in the cases of Lal Din etc. and Sain supra but the facts of the case at hand are clearly distinct and apart whereas judgment of the learned High Court (AJ&K) in the case of Muhammad Younas supra is not at all applicable to the present case.
22. On the contrary the case of Mehr Din through Legal Heirs vs. Azizan and another (1994 SCMR 1110) is quite relevant wherein the Hon’ble Supreme Court of Pakistan held as under:
“The perusal of the application filed by the respondents before the trial Court for setting aside the ex parte decree dated 29.7.1967 would show that the same was filed under Order IX Rule 13 (wrongly written as Rule 2) read with Section 12(2) C.P.C. on the grounds that the decree was obtained by fraud, misrepresentation and false statement of which they got the knowledge when the suit for the recovery of produce of the disputed land was filed against Karim Bakhsh who was in cultivating possession thereof as a tenant of the respondent. The sum and substance of the petition is that the decree holder practised fraud in the service of summons and kept the pendency of the suit against the respondents concealed from them by fraud and misrepresentation. The copies of the summons placed on the file reveal that proper procedure was not observed in effecting service upon the respondents who were admittedly Pardanashin ladies and special care had to be taken to inform them of the filing of the suit. The report on the first summons show that the respondents informed the process-server that in the absence of their attorney they cannot sign or thumb-impress the summons while at the time of visit of the process server for the second time for effecting service, the respondents were not present in their house. No effort was made to personally serve the respondents in the presence of their close relatives. The learned High Court has exhaustively incorporated the relevant provisions of C.P.C. pertaining to service on the parties which have not been complied with and the High Court justifiably felt inclined to annul the ex parte decree against the ladies/respondents and ordering de novo trial.”
23. It is also noteworthy that application under Section 12(2) “C.P.C.” was not decided summarily rather fate of the case was determined after framing of necessary issues and recording of evidence of both the sides. Record is indicative of the fact that both the sides being conscious of the controversy produced their evidence which was appraised by the Courts below in a beneficent manner. Even otherwise glaring flaws in the mode of service are floating on the surface of record which were sufficient to erode the validity of ex-parte judgment and decree.
24. There are concurrent findings of facts recorded by both the Courts below. It is trite law that writ jurisdiction should be exercised rarely and sparingly when Courts of competent jurisdiction proceeded to lay the matter in controversy at rest after due application of judicial mind to the facts of the case. Guidance in this respect can be sought from Amjad Khan vs. Muhammad Irshad (Deceased) through LRs (2020 SCMR 2155) and Chief Executive MEPCO and others vs. Muhammad Fazil and others (2019 SCMR 919).
25. The nutshell of above discussion is that the petitioners have failed to point out any illegality or perversity in the impugned judgments warranting interference by this Court in exercise of constitutional jurisdiction. As a sequel thereof, this petition fails and is hereby dismissed with no order as to costs. The connected petition (Writ Petition No. 2954 of 2017) as a consequence is allowed.
(K.Q.B.) Order Accordingly
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