21/05/2020
Exparte judgment set aside order was upheld on ground that no personal service was done of defendants.
2020 M L D 562
----Moulding of relief---Jurisdiction---Courts were to explore avenues to do justice---All efforts were to be made to decide cases on merits---Court and tribunals have a jurisdiction to mould relief according to circumstances of case.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2), O. V, R. 17 & O. IX, R. 13---Limitation Act (IX of 1908), Art. 181---Setting aside of judgment---Non-serving of summons---Ex parte judgment and decree passed in favour of plaintiff was set aside by Trial Court and order was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Validity---Trial Court passed a decree on basis of alleged proclamation in newspaper---Court had not passed any speaking order as to why it had not made any efforts for personal service of defendant and why mechanical orders were passed for affixation and proclamation---Summonses were returned un-served and Court directed issuance of fresh summons and notice through ordinary process and registered post and proceeded to direct affixation---No previous summons was ever served upon defendant nor there was any report of process server for avoidance of service or refusal to accept service---Trial Court proceeded to pass order for publication in unknown newspaper without examining process server as to efforts, if any, made by him and steps taken by him to ensure personal service and as to why he could not procure personal service---Care was also not taken to examine as to whether report of process server satisfied requirements of O. V, R. 17, C.P.C. so as to reflect time and date of service, names of persons who identified place and defendant and witnesses, if any, in whose presence alleged affixation was claimed and as to whether report was reportedly verified on oath as required by law---Without adhering to such prerequisites, order for publication of notice could not possibly be made---Lower Appellate Court had taken note of all relevant factors and thereafter concluded that it was primary duty of court to provide opportunity of hearing---No one could be condemned unheard and that decree under challenge could not be held up and was rightly set aside under S. 12(2), C.P.C.---Application was undeniably filed within period prescribed by Art. 181 of Limitation Act, 1908---Sufficient reasons existed to treat case on merits in view of inherent legal flaws and jurisdictional error in proceedings of Trial Court which resulted in ex-parte decree---High Court declined to interfere in orders passed by Lower Appellate Court as it was not a fit case for interference in revisional jurisdiction and thus did not suffer from any error of law or jurisdiction---Petition was dismissed in circumstances.
