PLJ 2023 Lahore (Note) 99
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
Mst. ZOHRAN BIBI and others--Petitioners
versus
GHULAM QADIR and others--Respondents
C.R. No. 14 of 2016, decided on 20.9.2021.
Civil Procedure Code, 1908 (V of 1908)--
----O.IX R. 13--Application for setting aside of ex-parte decree--Dismissed--Concurrent findings--Suit for declaration--Report of process server was not on oath--Mandatory provisions of law--Petitioners were parda observing ladies--Denial of service of summons--The report of Process Server was not on oath as required under law, service of petitioners was not in accordance with mandatory provisions of law--It is also settled principle of law that where service of summons is denied and Process Server has nowhere stated in his report that copy of summons is delivered to defendant, presumption would be that defendant is not properly served--Trial Court adopted process of passing ex-parte decree without recording of evidence in light of Law Reforms Ordinance, 1972 as evidenced from order--When summons was not duly served, limitation would certainly start from date of knowledge--The evidence of respondents is silent with regard to fact that ex-parte judgment and decree were in knowledge of petitioners. The application for setting aside ex-parte judgment and decree is within time from date of their knowledge--Both Courts below have not appreciated fact that petitioners were Parda observing illiterate village ladies and they had not available any independent advice. Their opponents were their brothers and they have undue advantage being male member of family and possibility cannot be ruled out that they get their service secretly by concealing true facts--Civil revision allowed.
[Para 9, 10, 11, 13 & 15] C, D, E, G, H & K
1990 MLD 1070, 1990 MLD 230, PLD 1979 SC 18, PLD 1981 SC 21, 1987 SCMR 845, 1985 SCMR 1228 and 1993 MLD 1889 ref. PLD 1065 SC 410.
Civil Procedure Code, 1908 (V of 1908)--
----O. V R. 16--Requirement for process server--In all cases in which summonses have been served under Rule 16 C.P.C. Process Server shall require signature of person to whom copy is so delivered or endorse on original summons his report thereon [Para 8] A
Civil Procedure Code, 1908 (V of 1908)--
----O. V R. 18--Manner of service--Rule 18 further directs manner of service in which same is served, to mention name and address of person (if any) and identify person served and witnesses of delivery or tender of summons. [Para 8] B
Civil Procedure Code, 1908 (V of 1908)--
---O.IX R. 6(1)--Powers of Court--In presence of verified pleadings on oath, Court has powers to proceed case ex-parte against defendant and pass a decree under Order IX, Rule 6(1), C.P.C. without calling for an affidavit or recording of ex-parte evidence. [Para 12] F
Limitation Act, 1908 (IX of 1908)--
----Art. 164--Limitation--The application for setting aside ex-parte decree was governed with Article 164 of Limitation Act, 1908 which provides period of 30-days from date of decree or where summons was not duly served when applicant has knowledge of decree.
[Para 13] I
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Right to apply--Article 181 of Act, provides period of three years when right to apply accrues. [Para 13] J
1979 SC 18, PLD 1981 SC 21, 1987 SCMR 845, 1985 SCMR 1228 & 1993 MLD 1889 ref.
Mr. Tahir Mehmood, Advocate for Petitioners.
M/s. Abdul Majeed Khan Balooch and Malik Zafar Iqbal Markund, Advocates for Respondents.
Date of hearing: 20.9.2021.
Judgment
Through this civil revision the petitioners called in question the legality of orders dated 16.12.2014 and 26.11.2015 whereby their application for setting-aside of ex parte judgment and decree dated 01.06.1976 was concurrently dismissed.
2. Facts in brevity are that one Allah Ditta was died on 20.04.1946 leaving behind two sons namely Ghulam Hussain, Ghulam Qadir, two daughters namely Mst. Jinnat Bibi, Mst Zohran Bibi, and Mst. Bhiranwan as a widow. In this regard, his inheritance Mutation No. 1257 was sanctioned on 07.01.1947 on the basis of custom by excluding his widow and daughters and only in the name of his sons Ghulam Hussain and Ghulam Qadir. Thereafter, his inheritance Mutation No. 282 was sanctioned on 30.04.1975 in favour of all his legal heirs in the light of the Muslim Law of inheritance. Ghulam Hussain and Ghulam Qadir plaintiffs (who were alive at the time of institution of the suit but died later on and their legal heirs were impleaded as a party and for the sake of convenience hereinafter called as the respondents) challenged the validity of inheritance Mutation No. 282 dated 30.04.1975 by instituting a suit for declaration against their mother Mst. Bhiranwan, their sisters Mst. Jinnat Bibi and Mst. Zoharan Bibi (who were alive at the time of institution of the suit but died later on and their legal heirs were impleaded as a party and for the sake of convenience hereinafter called as the petitioners) on 22.12.1975. The learned trial Court vide order dated 30.03.1976 proceeded ex-parte against Mst. Bhiranwan and Mst. Jinnat and on 01.06.1976 proceeded ex-parte against Mst Zohran as in the opinion of the learned trial Court their service have been effected and ex-parte decreed the suit of the plaintiffs vide judgment and decree dated 01.06.1976 without recording any evidence. The respondents moved an application for incorporation of the said ex-parte decree dated 01.06.1976 in the revenue record in the year 2009-10. When the fact of exparte decree was known to the petitioners, they moved an application for its setting-aside. The respondents filed contesting written reply on 19.05.2010. The learned trial Court, after framing necessary issues on 14.10.2011, invited the parties to produce their respective evidence. Petitioners produced Muhammad Nawaz son of Mst. Jinnat Bibi as AW-1 and Dil Nawaz son of Mst. Zohran Bibi as AW-2 and also produced five documents in support of their contention as Exh.A-1 to Exh.A-5. In rebuttal, the respondents produced Gul Muhammad son of Ghulam Hussain as RW-1 and produced Exh.R-1 to Exh.R-5 as documentary evidence. The learned trial Court dismissed the application vide order dated 16.12.2014. Feeling aggrieved, the petitioners preferred an appeal which was dismissed by the learned appellate Court vide order dated 26.11.2015. The petitioners challenged both the judgment/order of the learned lower Courts by filing instant revision petition.
3. Learned counsel appearing on behalf of the petitioners submits that the impugned judgments/orders passed by the learned Courts below are against facts and law and result of mis-reading and non-reading of evidence; that the impugned judgments/orders have been passed in slipshod manner without application of independent mind; that the learned lower Courts failed to take into account the facts and circumstances of the case; that the impugned judgments/orders are alien to law enunciated by the Superior Courts; that the learned lower Courts while passing the impugned judgments failed to take notice that prior to passing of impugned judgment and decree dated 01.06.1976, the defendants were not duly served; that the learned lower Courts failed to consider that the defendants/judgment debtors are Parda observing ladies; that the valuable rights of the petitioners are involved and lastly prayed for acceptance of instant revision petition and setting-aside of the impugned orders of the learned lower Courts.
4. Conversely, learned counsel appearing on behalf of the respondents submits that the learned trial Court while being satisfied with regard to the service of defendants proceeded against ex-parte and passed the ex-parte judgment and decree; that Mst. Zohran Bibi did not appear before the Court inspite she was alive at that time and got recorded her statement through a special attorney i.e. her son as AW-2; that the petitioners withheld the direct evidence by not examining Mst. Zohran Bibi; that the petitioners failed to prove on record that the service of their predecessor was the result of collusiveness with the Process Server; that there is no evidence available on the record regarding mala fide of the Process Server; that the Process Server, as well as witnesses of the summons, have been died, therefore, they cannot be produced and lastly prayed for dismissal of this civil revision.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
6. Admittedly, the plaintiffs and defendants are legal heirs of Allah Ditta as plaintiffs are sons of Allah Ditta while defendants are widow and daughters of Allah Ditta. The dispute is with regard to the inheritance Mutation No. 282 of Allah Ditta which was sanctioned on 30.04.1975. The stance of the plaintiffs in their plaint was that before that inheritance mutation of Allah Ditta, Mutation No. 1257 was sanctioned on 07.01.1947 according to the prevailing custom in the names of plaintiffs (only in favour of sons of deceased) and there is no need to again sanctioned the impugned mutation (including all the legal heirs of deceased). With this grievance, the suit for declaration was instituted by the plaintiffs against the defendants. Summons issued in the name of Mst. Bhiranwan, Mst. Jinnat Bibi and Mst. Zohran Bibi was produced in evidence as Exh.R-3. From the perusal of the report of Process Server dated 23.03.1976, it appears that Mst. Jinnat Bibi and Mst. Bhiranwan was allegedly served and they affixed their thumb impressions and this service was witnessed by Ghulam Qadir, one of the plaintiffs, and Karim Bakhsh. The Process Server, in his report, did not solemnly affirm on oath that the service was duly effected in presence of the witnesses and it is also silent either any summons or its copy was handed over to the recipients. Summons issued in the name of Mst. Zohran Bibi for the date 01.06.1976 was produced in evidence as Exh.R-2/Exh.A-4. On the backside of this summons, the Process Server reported on 06.05.1976 that Mst. Zohran Bibi was not available as she had gone to attend a marriage ceremony of her relative and summons was served through her legal heir, without mentioning any name of the legal heir. Another report is also available on the same summons whereby, it was disclosed that Mst. Zohran Bibi refused to accept the service of the summons and one summons was affixed on the outer door of her residence. Another report on the same day and the same summons is also available whereby Mst. Zohran Bibi was allegedly served personally and she put her thumb impression on the summons but this report is also silent with regard to handing over the summons or its copy to her. The learned trial Court, on the basis of that reports of Process Server, proceeded ex-parte against Mst. Bhiranwan and Mst. Jinnat Bibi on 30.03.1976 and against Mst. Zohran Bibi on 01.06.1976 without recording statement of the Process Server and without recording his observation that due service of the defendants had been effected.
7. Let the matter be thrashed out in view of the provisions meant for this purpose. The relevant provisions of the law are required to be considered first.
Order V, Rule 16, C.P.C., envisaged as under:
“16. Person served to sign acknowledgment.--Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, 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.”
Order V, Rule 18, C.P.C. reads as under:-
“18. Endorsement of time and manner of service.--The serving officer shall in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.”
Order V, Rule 19, C.P.C. speaks as below:-
“Rule 19. Examination of serving officer.--Where a summons is returned under Rule 17 the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit.”
8. The bare reading of the above mandatory provisions of the Code of Civil Procedure, 1908 provides complete guidelines for the Courts and Process-Serving Agencies. It says that in all cases in which summonses have been served under Rule 16, C.P.C. mentioned above, the Process Server shall require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid 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. Similarly, Rule 19, C.P.C. lays down the procedure for the Court that where a summons 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 satisfaction to proceed further.
9. The learned trial Court while initiating ex-parte proceedings did not observe the procedure as laid down in Order V of C.P.C. The report of the Process Server was not on oath as required under the law, therefore, the service of the petitioners/defendants was not in accordance with mandatory provisions of law. The ex-parte decree would be set aside if the summons were not duly served and the meaning of “duly served” would mean the service as required by law. In arriving at that conclusion, I am fortified by the following judgments “Syed Mazhar Shah’s case (1990 MLD 1070) and Haji Karamat Hussain’s case (1986 CLC 6).
10. The Process Server was not summoned and examined on oath by the Court before initiating ex-parte proceedings to testify his report of service as provided under Order V, Rule 19, C.P.C. Consensus of the Courts are that for defending an exparte proceedings and decree the plaintiff has to produce the process server to prove due service when the service was denied by the defendant. Reliance in this regard is placed upon “Muhammad Asghar and others v. Qamar Din” (PLD 2005 Lahore 240) and “Muhammad Yousaf and 7 others v. Muhammad Azeem and 2 others” (1989 SCMR 1998).
The summons was neither witnessed by anybody from the locality nor any independent person was reported to be present at that time nor any affidavit was given in this regard. Endorsement on the back of summons does not indicate in such a method that the mode of service is effected in line with the above provision of law. There is no mention of identifying the person served as to who had identified the defendant ladies. It is also settled principle of law that where service of summons is denied and Process Server has nowhere stated in his report that copy of the summons is delivered to the defendant, the presumption would be that defendant is not properly served. In arriving at this conclusion I am fortified by the law laid down in “Syed Mazhar Ali Shah v. Shah Muhammad” (1990 MLD 230).
11. The ex-parte decree was passed without recording of any evidence, that rule of caution and propriety requires taking some proof from the plaintiffs for satisfying that the case set up by them was true. The learned trial Court adopted this process of passing the ex-parte decree without recording of evidence in the light of the Law Reforms Ordinance, 1972 as evidenced from the order. The order dated 01.06.1976 in verbatim is as under:-
"بروئے لاریفارمزآرڈنینس 1972 ڈگری یکطرفہ بحق مدعیان بر خلاف مدعا علیہم بمعہ خرچہ مقدمہ صادر کی جاتی ہے"۔
The Law Reforms Ordinance (XII of 1972) read with Section 6 of the Oaths Act, 1873, introduced the verification of pleadings on oath by adding the words “on oath or solemn affirmation” after the word verified in Rule 15(1) of Order VI, C.P.C. After such amendment, in presence of verified pleadings on oath, the Court has powers to proceed the case ex-parte against the defendant and pass a decree under Order IX, Rule 6(1), C.P.C. without calling for an affidavit or recording of ex-parte evidence. But in the instant case, the plaint of the respondents/plaintiffs was not verified on oath or solemn affirmation before a person authorized to administer oath and the plaintiffs simply verified their pleading in the following terms:-
"تصدیق کی جاتی ہے کہ جملہ مضمون مراتب بالا ہمارے بہترین علم و یقین سے صحیح و درست ہیں۔"
As the plaint was not verified on oath or verified through solemn affirmation before a person authorized to administer the oath, therefore, such plaint (Pleadings) would be deemed not duly verified on oath and the Court in such a case could not pass a decree without recording of evidence. Reliance is placed upon “Malik Umar Aslam v. Sumera Malik and another” (PLD 2007 Supreme Court 362). The merits of the case were not touched by the learned trial Court, therefore, its recall can be considered under the provision of Order IX Rule 13, C.P.C. Reliance is placed upon “State Life Insurance Corporation of Pakistan v. Messrs Ibrahim Management Ltd. and others” (1990 CLC 206).
12. It is also a matter of record that ex-parte decree was passed on 01.06.1976 in favour of respondents but they remained silent for near about 34 years and first time they moved an application in the year 2009-10 before the revenue officer for the implementation of the decree and on their application proceedings were initiated, from where the legal heirs of petitioners came to know about the existence of that ex-parte decree. The silence of the respondents for such a long time near about 34 years after passing of the decree without any explanation speaks a lot.
13. In this situation, when the summons was not duly served, the limitation would certainly start from the date of knowledge. The petitioners specifically pleaded in their application that they came to know about the judgment and decree dated 01.06.1976 when the respondents after 34 years of passing the decree moved an application to the DOR Muzaffar Garh for its implementation. The evidence of the respondents is silent with regard to the fact that ex-parte judgment and decree were in the knowledge of the petitioners. The application for setting aside ex-parte judgment and decree is within the time from the date of their knowledge. The application for setting aside ex-parte decree was governed with Article 164 of the Limitation Act, 1908 which provides period of 30-days from the date of decree or where summons was not duly served when the applicant has knowledge of the decree. Residuary Article 181 of the Act ibid, provides period of three years when the right to apply accrues. The defendants/ predecessors of petitioners were not duly served and the plaintiffs/predecessors of the respondents failed to establish on record that suit was quite in the knowledge of the plaintiffs or they were duly served. In this scanerio the application of the defendants was within limitation from their knowledge. Reliance in this regard is placed upon “Mst. Afzal Begum and others v. Y.M.C.A. through its General Secretary” (PLD 1979 SC 18), “Messrs Rehman Weaving Factory (Red.), Bahawalnagar v. Industrial Development Bank of Pakistan” (PLD 1981 SC 21), “Fida Hussain Shah v. Muhammad Rafique Shah” (1987 SCMR 845), “Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq” (1985 SCMR 1228) and “Muhammad Anwar v. Muhammad Masood Akhtar” (1993 MLD 1889).
14. It is settled principle of law that principle of natural justice must be read in each and every Statute unless and until it is prohibited by the wording of the statute itself as per the law laid down by the Honourable Supreme Court in “Commissioner of Income Tax v. Fazal-ur-Rehman” (PLD 1964 SC 410). The principle of “Audi alterm partam” is also one of the basic principle of natural justice that nobody should be condemned unheard. Law favours adjudication of lis on merit and not on mere technicalities. No one should be knocked out merely on technicalities.
15. Both the Courts below have not appreciated the fact that the petitioners were Parda observing illiterate village ladies and they had not available any independent advice. Their opponents were their brothers and they have undue advantage being male member of the family and possibility cannot be ruled out that they get their service secretly by concealing true facts.
16. In the wake of above discussion, I am inclined to accept this revision petition, set aside the impugned orders of learned lower Courts as well as judgment and decree dated 01.06.1976, and remand the case to the learned trial Court for trial of the case titled as “Ghulam Hussain and others v. Mst. Bhiranwan and others” afresh. The case shall be decided on merits strictly in accordance with the law. With these observations the Civil Revision is allowed. The parties are left to bear their own costs.
(Y.A.) Revision accepted
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