Proper service of summons and notices on the defendants is the foundation of proper exercise of jurisdiction of the Court. Improper service would result in either multiplicity of litigation or........

 2023 MLD 1167

Proper service of summons and notices on the defendants is the foundation of proper exercise of jurisdiction of the Court. Improper service would result in either multiplicity of litigation or setting aside of ex parte order / judgment resulting in inordinate delay in the disposal of cases on merits, as has been occurred in the lis in hand. If ex parte decrees are passed on the basis of defective service, then same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective and meaningless as final order / judgment on defective foundation is liable to be set aside.

Substituted service by way of publication is only presumed to be personal service by virtue of Rule 20(2) of Order V CPC, which presumption is of course rebuttable, therefore, where service by publication is challenged, the first test is to see whether the conditions of Order V, Rule 20 CPC had been met viz. that the publication was resorted to after the Court was satisfied that the defendant was avoiding service, or there was some other reason to believe that summons could not be served in the ordinary manner. In other words, whether the ordinary modes of service available had been exhausted as unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to.

Needless to observe here that decision should be rendered on merits rather than rights being sacrificed at the altar of procedures, technicalities and rigors of rules. However, the Courts may deny relief to those who had been indolent to safeguard their rights or abused process of law by delaying legal proceedings. At the same time, law aims at adjudication of disputes on merits and in order to achieve the object, the parties should be given proper opportunity to produce evidence in support of their respective claims. As regards the question of limitation, there is no cavil with the proposition that limitation runs from the date of knowledge of the petitioner and the moment he returned to Pakistan and obtained such knowledge, as mentioned by the petitioner in his application, he immediately filed application for setting aside ex parte decree, thus, same is not time barred. Therefore, learned Courts below were not justified to dismiss the application for setting aside the ex parte judgment & decree.