ORDERSHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P No. S-57 of 2020
________________________________________________________________
DATE ORDER
WITH SIGNATURE OF JUDGE ______________________________________________________________________
Hearing
of cases.
1.
For orders on office objection at Flag
'A'
2.
For hearing of CMA 1597/2020 (Ex)
3.
For hearing of main case.
4.
For hearing of CMA 1598/2020
23-08-2021.
Mr. Allah Bakhsh Gabol,
Advocate for the petitioner.
Mr. Musthaque Ahmed Solangi,
Advocate for respondent.
O R D E R.
MUHAMMAD
JUNAID GHAFFAR,J.Through
this petition the petitioner has impugned order dated 30.01.2020 passed by 1st
Civil/Family Judge Mirpur Mathelo, whereby, application filed by the petitioner
for recalling and setting aside of judgment and decree dated 07.10.2019 has
been dismissed.
Learned counsel for
petitioner submits that petitioner has been condemned unheard; that he was not
served properly; that his valuable rights have been affected; hence the
petition merits consideration, and therefore, the impugned order be set aside.
Respondent’s counsel has
supported the impugned order.
I have heard both
learned counsel and perused the record. It would be advantageous to refer to the
findings of learned Family Judge Mirpur Mathelo, while dismissing the
application and reads as under:
“
5. Heard the learned Advocates for
respective parties and perused the record. Perusal of record shows that in
plaint the address of the defendant is mentioned as Bhittai Colony Mirpur
mathelo where service to defendant through bailiff of the court was made
numerous times and such endorsements are available in record
dated:02.04.2019, 27.04.2019 and 18.06.2019 and subsequently such
publication was made in daily AwamiAwaz dated:12.05.2019 and then service
was held good upon the defendant, and defendant was barred from filing written
Statement and suit was decreed ex-parte against defendant. It would be
advantageous to reproduce Sub-section 6 of section 9 of family courts Act
1964:
(6) In any case in which a decree is passed Ex-parte against a
defendant under this act, he may Apply within thirty days of service of notice under sub-section (7) of passing
of decree to the family Court by
which the decree was passed for an order to set it aside, and
if he satisfies the family court that he was not duly served, or
that he was prevented by
any sufficient cause from appearing when the suit was heard or called for
hearing, the famiyi court shall, after service of notice on the plaintiff, on
such terms as to costs as it deems fit, make an order for setting aside the
decree as against him. and shall appoint a day for proceeding with the
suit.
Provided that where the decree is of such a nature
that it cannot be set aside as against such a defendant only, it may be set aside against all or any of the
defendant also.
6. It can easily
be summed up from the careful perusal of above section that there are three
main ingredients for settings aside the Judgment passed in Ex-parte which
defendant has to satisfy the Court while asking for the relief under the
section:-
He
was not duly served.
He
was prevented by any sufficient cause from appearing when the suit was heard or
called for hearing.
Within
thirty days after notice of sub-section (7)of passing the decree.
7.
Learned Advocate for Defendant has contended that defendant has not been
duly served as in no way he came to know about the institution of suit against
him as such Ex parte Judgment and decree passed decree passed against him may be set aside.
It is very important to discuss the term "duly served“ whether it means
that service should be affected at any cost to inform the defendant or it is
sufficient to comply with modes of process only. It is pertinent to mention that
defendant appeared and submitted his affidavit on 07.11.2019 in which
admittedly address of the defendant namely Waqar Ali is mentioned as Bhittai
Colony MipurMathelo which is done by defendant himself which also suggests that
process was served and on correct address of the defendant and after issuing
process with due diligence when defendant was not served
through ordinary mode of service then service was made through substitute
service.
8.
Secondly Decree in the instant suit has been passed on 07-10-2019
and defendant has applied for setting it aside on 31-10-2019 and defendant
appeared and submitted his affidavit on 07.11.2019 which is within thirty days
but nothing has come on record to satisfy the court as to the reason by which
defendant was prevented by sufficient cause from appearing when the suit was
heard of called for hearing.
9.
After All the discussion made above nothing has transpired that any fraud
has been played for obtaining the ex-parte decree. It transpires from bare
reading of the order 5 Rule 17 that where serving officer after using all due
and reasonable diligence cannot find the defendant or where person served
refused to sign and he is served through substitute service then service is
complete as such all that is mandatory for the party to provide for complete
and correct address of the opposite party and then for serving officer to use
all due and reasonable diligence for ensuring the service upon defendant and
not the information to the defendant when he went on avoiding service and
plaintiff continuously went on searching him so that defendant come to know
about the suit which will otherwise result in depriving the party coming
to court from effective and speedy justice.
10.
I therefore, considering the above facts with given reasons dismiss the
application in hand with no orders as to cost.”
Perusal
of the aforesaid findings clearly reflects that thrice, the petitioner was
served through Bailiff of the Court on the address i.e.Bhitai Colony, Mirpur
Mathelo,but none affected appearance and thereafterservice was affected through
publication. The argument that petitioner had shifted to some other place does
not find support from the record inasmuch as in his affidavit before the family
Court for recalling the judgment and decree, he has mentioned the same address.
Nonetheless, he was duly served as per law; hence, no case for exercising this
limited Constitutional jurisdiction has been made out. Accordingly, instant
petition is being misconceived is hereby dismissed.
JUDGE
Irfan/PA.