MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH S — 2025 SCMR 1936 SUPREME-COURT

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

MOBISERVE PAKISTAN (PVT.) LIMITED VS V-TECH S. 12(2), O.IX, R.13 & O.V, Rr.19 & 20---Non-service of summons upon defendant---Substituted service, procedure and invocation of---Pre-requisites---Trial Court resorting to substituted service without adopting requirements for ordinary service---Legality---Affixation of court summons on conspicuous place of business and recording of statement of process server as to the affixation---Requirement---Setting aside ex parte decree, seeking of---Proper remedy, invocation of---Whether application under section 12(2) C.P.C. was maintainable or recourse lay under Order IX Rule 13, C.P.C.?---Primary issue in the present case revolved around whether the ex parte judgment and decree dated 18.09.2013 passed against the petitioner was validly obtained on the premise that Trial Court had resorted to substituted service through newspaper publication without first ensuring compliance with mandatory legal requirements for ordinary service of summons---The petitioner's subsequent application under section 12(2) C.P.C. to set aside the ex parte decree was dismissed by the Trial Court and later upheld by the High Court---The Supreme Court was thus called upon to decide "whether the ex parte proceedings stood vitiated for lack of proper service, and whether the proper remedy lay under section 12(2) C.P.C. or Order IX Rule 13, C.P.C. for setting aside the decree"?---Held: No order for affixation of court summons on the conspicuous place of the business of the petitioner was passed by the Trial Court rather it was ordered that 'defendant be summoned through registered post AD/TCS for 28.02.2013'; however, on 28.02.2013, the Trial Court without taking into account the preceding order and without recording statement of the process server as to purported affixation of the court summons as required under Rule 19, Order V of C.P.C. as to its satisfaction for reasons to believe that the petitioner/defendant was keeping out of the way for the purpose of avoiding service or for any other reason the summons could not be served in the ordinary way, especially when no order for affixation was passed by it on the preceding date and without adhering to the provided procedure as per mandate of law, resorted to substituted service of the petitioner through publication of court notice in the newspaper---Substituted service could only be effected when ordinary summons could not be served or defendant deliberately avoided to receive summons of the Court and the Court was satisfied that service could not be effected through ordinary modes of service and that satisfaction could be achieved by recording statement of the process server but nothing as such was done by the Trial Court---Process of issuance of proclamation for the service of the petitioner without fulfilling the mandatory requirement was nothing but nullity in the eye of law; therefore, the superstructure built thereon automatically collapsed---In the present case, when it was established from the record that the Trial Court while dealing with the suit did not resort to the mandated procedure of law for procuring the service of the petitioner, the application seeking setting aside ex parte judgment and decree ought to have been accepted---With regards to the question as to the applicability of either section 12(2) of Order IX, Rule 13 of C.P.C., an application under Order IX of Rule 13, C.P.C. was competent when an ex parte decree was passed due to non-service of summons---However, the court must assess the facts and evidence to determine the appropriate remedy under each provision---Impugned order passed by High Court and order delivered by Trial Court, were set aside, consequent whereof the application filed by the petitioner, treating the same as filed under Order IX, Rule 13 of C.P.C. was accepted and the ex parte judgment and decree in question was set aside and case was remanded to the Trial Court for decision afresh, obviously after obtaining written statement of the petitioner, framing issues and recording evidence of the parties---Present petition was converted into appeal while granting leave and same was allowed, in circumstances.

MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH S — 2025 SCMR 1936 SUPREME-COURT

Case information

Judgment text as reported

Other judgments reported in 2025 SCMR