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Review Application No. 2 of 1974/BWP, decided on 21st October, 1984.

---Cl. 10--Civil Procedure Code (V of 1908), O.V, R. 20, S. 114 & O.XLVII, R.I--Substituted services--Requirements--Review--Ex parte proceedings in constitutional petition resulting in acceptance of same- Review application by respondents of said petition on ground of non-service on their correct addresses--Where report of process-server showed that respondents of constitutional petition resided at place different from that mentioned in such petition, office, held, was bound to issue notices to such respondents on that address--Substituted service carrying wrong address would also be ineffective--Although substituted service could be considered to be effectual, yet party to whom such service was intended would not be afterwards precluded from showing to the satisfaction of Court that actually there had been no service on him and could have the ex parte decree/order set aside.--[Review].

--- Cl. 10--Civil Procedure Code (V of 1908), O.V, R. 20, S. 114 & O.XLVII, R. 1--Substituted service--Review--Review against ex parte acceptance of constitutional petition--Jurisdiction of High Court--Disposal of case on technical ground instead on merits, held, weakens rather than inspires confidence in Court--Law favours decisions on merits--Where service effected on respondent in constitutional petition was not absolutely flawless, same would call for interference by High Court in review jurisdiction--Accepting review application against ex parte order of Single Judge, High Court directed that such constitutional petition be heard and decided afresh on merits in accordance with law.--[Review].

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---Review--Matter heard and judgment reserved--Before announcement of judgment file was lost in office after judgment had been signed by one of the judges--To avoid further delay in the disposal of matter judgment was re-written by Court.

M.M. Bhatti for Petitioners.

A.A. Bhatti for Respondents.

Date of hearing: 9th April, 1984.

This review application has been filed against ex parte order, dated 5-11-1974 in Writ Petition No. 1233-R/1966 a passed by the learned Single Judge of this Court against the applicants (respondents Nos. 12 to 21 in the writ petition) praying that the aforesaid order may be reviewed with the direction that writ petition be decided afresh on merits, after hearing the parties.

2. The relevant facts briefly are that Mst. Zainab Bibi respondent (writ petitioner) a refugee from India was allotted and confirmed urban land in lieu of her claim in two Chaks No. 53/4-R and 55/4-R District Bahawalnagar. On 28-12-1965 the Settlement and Rehabilitation Commissioner, Bahawalpur Division, cancelled her allotment in Chak No. 53/4-R on the ground that she being already an allottee of urban area in Chak No. 55/4-R could not have been allotted urban area in another Chak No. 53/4-R. Being aggrieved, she filed Writ Petition No, 1233-R/66 in this Court praying that the order of the Settlement Commissioner be declared as without lawful authority and of no legal effect. It appears that part of the land resumed from the writ petitioner was allotted to applicants or their predecessor-in-interest, therefore, they were impleaded as respondents in the writ petition by this Court order, dated 21-3-1974. The writ petition was fixed for 5-11-1974 but the applicants/ petitioners (respondents Nos. 12 to 21, in the writ petition) did not appear. They were deemed to have been served through notice dated 25-10-1974 for the said date, therefore, they, were proceeded against ex parte and the writ petition was accepted whereby the impugned order of the Settlement and Rehabilitation Commissioner, Bahawalpur, dated 28-12-1965 cancelling allotment of the writ petitioner anti subsequent orders allotting that land to the applicants/ respondents is: the writ petition) were struck down. This Review Application is directed against that order.

3. It appears from the record that on 4-3-1975 this review application was laid before Mr. Justice Zaki-ud-Din Paul (who had passed tile: impugned order) and it was argued before his Lordship that the applicants (respondents Nos. 12 to 22 in the writ petition) were neither issued notices at their correct addresses nor the substituted service was effected through a well-circulated newspaper, therefore, the ex parte proceedings taken against them were liable to be set aside. His Lordship; therefore, admitted revision petition to regular hearing

4. Learned counsel appearing on behalf of the applicants reiterated his stand that the applicants who were impleaded by an order of this Court at the instance of writ petitioners' applications Nos. 139 and 140/74/BWP wherein applicants Rashid Ahmad, Muhammad Sharif, Muhammad Yasin, Sheikh Ahmad and Mst. Fazal--un-Nisa have been showy; as respondents of Chak No. 53/4-R Tehsil Fort Abbas but the notices were sent to- them in Minchinabad. Likewise their addresses in the citation published in newspaper Daily Siadat, Bahawalpur also carried incorrect addresses, of the applicants, therefore, substituted service being objective, the. applicants could not be proceeded against ex parte and consequently the impugned order is liable to be reviewed. Learned counsel appearing on behalf of the respondent (writ petition) has not seriously resisted this contention and submitted that if this review application is accepted then it should be to the extent of the applicants alone and not the other respondents i.e. Mehr Din's legal representatives.

5. We have carefully considered the contentions of the learned counsels for the parties and find that according to the report of the process server, dated 20-5-1974 the applicants resided in Minchinabad and not in village Mohib Ali, therefore, the office was bound to issue notices to the applicants at the said address. Similarly, we find that the substituted service carried wrong addresses of the applicants in the citation published in the newspaper.

6. It is true that under Order V, rule 20(2) of the C.P.C. substituted service is considered to be as effectual as if it had been made on the defendant personally. In such a situation legally a party is not precluded from afterwards showing to the satisfaction of Court that actually there had been no service on him and can have the ex parte decree/order set aside. As for the instant case, there is no, material on record to show that the substituted service was ordered because the applicants (respondents in the writ petition) deliberately kept out of away to avoid process and again the addresses given in the proclamation published in the newspaper were not correct, therefore, we are of the view that they can successfully plead that the fixation of the writ petition for 5-11-1974 did not come to their knowledge. It is well-settled that to dispose of case on technical ground than on merits weakens rather than inspires confidence in the judiciary. Law always favours a decision on merits. In the circumstances of the case, we are of the view that the service effected on the applicants having not been absolutely flawless, does call for our interference. Consequently, we accept this review application and review the ex parte order of the learned Single Judge, dated 5-11-1974 and direct that the writ petition shall be heard and decided afresh on merits in accordance with law

7. Before parting with this judgment it may be stated that this matter was actually heard by us on 9-4-1984 and the judgment; was reserved. However, the proposed judgment along with the first part of this file was lost in the office after the judgment had been signed, by one of us (Mr. Justice Muhammad Sharif). Despite efforts by the office, the file could not be traced. In this situation to avoid further delay-in the disposal of the matter, we have agreed to rewrite and deliver this judgment.

A.A. /R-13/L Review application accepted.

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