GHULAM SARWAR vs FAIZ MUHAMMAD and another
This matter arises from a petition for leave to appeal filed by a vendee/defendant against the dismissal of his Constitutional petition by the High Court, which had upheld concurrent findings of fact against him regarding the service of summons in a pre-emption suit. The core legal question concerned whether an ex parte decree and subsequent execution could be set aside on allegations of fraud regarding summons service without establishing the factual basis for the plea. The Supreme Court held that the petitioner could not succeed without establishing his plea on facts concerning the service of summons, and since concurrent findings of fact were rendered against him and his attempt to discredit the Process Server failed, no relief could be granted. The key principle laid down is that a party alleging fraud in the service of summons must establish the plea on facts, and concurrent findings of fact on such issues cannot be dislodged on technicalities.
- Whether a party can succeed in setting aside an ex parte decree on the ground of fraud regarding summons service without establishing the plea on facts?
- Does a concurrent finding of fact on the question of the service of summons warrant interference by the Supreme Court?
- Can relief be granted on technicalities when attempts to discredit the Process Server have failed?
- Section 12(2), Code of Civil Procedure 1908
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--A vendee/defendant in a suit for pre-emption having lost in the first round of litigation --an executable ex parte decree was passed against him, challenged the same in several proceedings on the ground that he had been defrauded with regard to the service of summons on him at a certain stage of the suit. Having failed throughout to stop execution of the decree on this plea, he ultimately filed a Constitutional petition in the High Court and the same having been dismissed, he has now sought leave to appeal.
2. After some arguments it is accepted by the learned counsel for the petitioner that whether it was application under section 12(2) of the C.P.C. Based on allegation of fraud, or an objection to the execution of the decree based on similar ground, (an application for setting aside an ex parte decree and or an appeal against the ex parte decree on similar grounds), the petitioner could not succeed unless he was able to establish his plea on facts relating to the question of the service of the summons. There are concurrent findings on fact against him on this issue. His attempt to discredit the Process Server who confidently deposed against him, having failed, no relief can be granted to him on any technicality. It is not a fit case for leave to appeal. The same, therefore, is refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.