It is a well settled exposition of law that the Court may order substituted service under Order V, Rule 20, CPC where it is satisfied that there is reason to believe that the other side 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. In such a case the Court shall order for service of summons by (a) affixing a copy of the summons at some conspicuous part of house, if any, in which the defendant is known to have last resided or carried 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. The service substituted by order of the Court shall be as effectual as if it had been made on the defendant/other side personally. The legislature in its judiciousness and astuteness has conferred a wideranging freedom of choice and options under Order V, Rule 20, CPC as to how the substituted service is to be effected to ensure service quickly and efficiently if the notice/summons could not be served personally at the given address or at the address which is given or known, but the remedy of substituted service can be resorted to only if the Court is satisfied that there is reason to believe that the other side is keeping out of the way only to avoid service.
Section has put in plain words that if the defendant failed to appear on the date fixed by the Family Court for his appearance, then if it is proved that the summons or notice was duly served, the Family Court may proceed ex parte; and if it is not proved that the defendant was duly served, the Family Court shall issue fresh summons and notices to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of sub section (1) of Section 8. However, subsection (6) of Section 9 has much significance which provides that in case of an ex-parte decree against a defendant, he may apply within thirty days of the service of notice of the passing of the decree, under sub-section (7), to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also. Whereas under sub-section (7) of Section 9, the notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.
Against the judgment of Family Court, a right of appeal is provided under Section 14 of the Family Courts Act 1964.
for all legal and practical purposes, the appeal against a decision or a decree of Family Court (except the bar contained against an interim order passed by Family Court) should have been challenged before the District Court/District judge and not directly in the High Court by means of Constitution Petition under Article 199 of the Constitution. According to the Black’s Law Dictionary (Sixth edition), at page 407, the word “Decision” means “A determination arrived at after consideration of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character. A determination of a judicial or quasi judicial nature. A judgment, decree, or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And though sometimes limited to the sense of judgment, the term is at other times understood as meaning simply the first step leading to a judgment; or as an order for judgment. The word may also include various rulings, as well as orders, including agency and commission orders.
The maxim Ubi jus ubi remedium (wherever there is a right, there is a remedy), is an elementary principle of law and any person having a right has a corresponding remedy to institute suits in a Court unless the jurisdiction of the Court is barred. The aforesaid principle acknowledges the subsistence of a legal right and can also be invoked when the law seemingly does not provide a remedy for the enforcement of such right. In order to challenge the ex-parte judgment and decree, a right of appeal was provided to the respondent No.1 under Section 14 of the 1964 Act but, instead of filing an appeal as an equally efficacious and adequate remedy provided under the law, the respondent No.1 opted to invoke the Constitutional jurisdiction of the High Court which was not permissible. So far as the question of converting one proceedings into another is concerned, meaning thereby the writ petition into an appeal under the 1964 Act, both forums and jurisdictions are altogether different. In this case the appeal lies to the District Court against the Family Court judgment and not to the High Court; hence the High Court could not convert the proceedings into appeal. Had the statutory right of appeal been provided in the High Court, and due to wrong conception or some misunderstanding the Constitution Petition was filed, then obviously, subject to all just exceptions including the question of limitation, the Constitution Petition could be converted into appeal, but in this case the High Court could not assume the role of appellate Court, and if any attempt was made for conversion then that would also be without jurisdiction though the learned High Court had not converted the nature of proceedings but took the cognizance and allowed the constitution petition without taking into consideration Section 14 of the 1964 Act which deals with the right of appeal.
The 1964 Act is a special law which provides various legal remedies and the intention of the legislature for creating such remedies is that disputes falling within the ambit of such forum be taken only before it for resolution and bypass or circumvention of the forums is not permissible under the command of Article 199 (1) of the Constitution which confers jurisdiction on the High Court only when there is no adequate remedy available under any law. Where an adequate forum is fully functional, the High Court must not interfere and must relegate the parties to seek remedy before the special forum created under the special law.
The extraordinary jurisdiction under Article 199 of the Constitution is delineated in essence for affording an express remedy where the wrongfulness and impropriety of the action of an executive or other governmental authority could be demonstrated without any elongated inquiry. The expression “adequate remedy” represents an efficacious, reachable, accessible, advantageous and expeditious remedy. The object of proceedings under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right and, therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simpliciter and there must be an actual infringement of the right. The writ jurisdiction of the High Court cannot be expended as the solitary resolution or treatment for undoing the wrongdoings, anguishes and sufferings of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. The doctrine of exhaustion of remedies prevents a litigant from chasing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted, with the sole underlying principle that the litigant should not be persuaded to sidestep or disdain the provisions integrated in the relevant statute leading towards the remedies with a precise procedure to challenge the impugned action.
Ubi jus ubi remedium (wherever there is a right, there is a remedy). Writ jurisdiction could not be exercised to bypass the remedy of appeal which is also against the doctrine of exhaustion of remedies.
C.P.32-Q/2019
Sana Jamali v. Mujeeb Qamar & another
Mr. Justice Muhammad Ali Mazhar
05-10-2022
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