MUHAMMAD NABI vs BIBI MALIKA O — 2021 CLC 1189 QUETTA-HIGH-COURT-BALOCHISTAN

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MUHAMMAD NABI VS BIBI MALIKA O.IX, R.13 & O.V, R.20---Constitution of Pakistan, Art.10-A---Application to set aside ex-party decree, rejection of---Modes of service to the defendant---Scope---Right to fair trial---Scope---Held, that though the notices, in the present case, were issued to the petitioner but the same could not be served upon him and then publication was made in newspaper for his appearance, thereafter ex-parte proceedings were initiated against the petitioner and after recording ex-parte evidence, the suit was decreed in favour of respondent---Trial Court did not ascertain the factual position as to whether the notices had properly been served upon the petitioner and impugned decree and judgment did not justify reasons for the rejection of application under O.IX, R.13, C.P.C.---Article 10-A of the Constitution provided that a person "shall" be entitled for fair trial and due process both in civil and criminal proceedings and the rights of person were protected---Even otherwise, under O.V, R.20, C.P.C, substituted service could only be ordered where the Court was satisfied that there were reasons to believe that the defendant was keeping himself away for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way---Trial Court was supposed to do substantial justice between the parties by restoring the suit in its original position and allowing the parties to prosecute the suit on merits and to lead evidence their pro and contra evidence---Trial Court, in the present case, had failed to effect service of notice upon the petitioner/defendant through process-server or on the pointation of the respondent/plaintiff as the premises of defendant was known to the respondent---Even if the service could not be effected the Trial Court was duty bound to have asked for filing of a fresh address of the defendant , but instead the Trial Court ordered for proclamation in the newspaper---Said procedure was bad in law and the process-server had not reported either the avoidance or refusal of service by the defendant, as such the defendant had not been properly served---Petitioner was non-suited and was condemned unheard, in circumstances---High Court set aside the impugned judgments and decrees passed by both the Courts below---Case was remanded to the Trial Court for decision on merits by providing full and fair opportunity to the parties---Constitutional petition was allowed, in circumstances.

MUHAMMAD NABI vs BIBI MALIKA O — 2021 CLC 1189 QUETTA-HIGH-COURT-BALOCHISTAN

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