MUHAMMAD YOUSAF and 7 others vs MUHAMMAD AZIM and 2 others
This matter arises from a petition for leave to appeal filed against the High Court's acceptance of a civil revision. The petitioners' predecessor-in-interest had secured an ex parte declaration decree, and subsequent applications and appeals by the respondents to set aside the decree were dismissed by the lower courts. However, the High Court allowed the respondents' civil revision, holding that a dispute existed regarding personal service by the process server, whose non-examination by the petitioners failed to rebut the sworn deposition of non-service by the respondents. The core legal question concerned the burden of proof and appraisal of evidence regarding personal service of summons. The Supreme Court dismissed the petition, holding that the High Court's appraisal of evidence and its finding that the onus of proving service shifted to and remained undischarged by the petitioners suffered from no legal infirmity. The key principle laid down is that where a party provides an uncontroverted deposition on oath regarding non-service of summons, the burden shifts to the opposing party to substantiate service through appropriate evidence.
- Whether the burden of proving personal service shifts to the plaintiff when the defendant makes an uncontroverted deposition on oath regarding non-service?
- Does the High Court's appraisal of evidence in a civil revision regarding service of summons warrant interference by the Supreme Court when free of legal infirmity?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the plaintiffs' side, against the acceptance by the High Court, of a Civil Revision filed by the respondents/defendants' side.
2. ' Suit of the petitioners' predecessor-in-interest for declaration, was decreed ex parte. The respondents' application for setting aside the ex parte decree was dismissed by the trial Court. The appeal filed against the order of the trial Court was also dismissed. Their Revision, however, was allowed by the High Court; mainly, on the ground that there was dispute on the question of personal service on the respondents' side by the process server. He was not examined by the petitioners side as a witness despite deposition on Oath made on respondent side with regard to non-service. They thus tried to rebut the presumption in favour of service. It was also held by the High Court that the deposition on Oath by respondents' side remained uncontroverted from the petitioners' side. In the circumstances of this case, therefore, it was held that in so far as the appreciation of evidence was concerned the onus of service having, during the trial, shifted on the petitioners' side, remained undischarged.
3. ' We have heard the learned counsel at length. He has relied on some judgments of the High Court and a judgment of the Supreme Court. It is Moniruddin Ahmad versus Shamsuddin Ahmad' 1969 SCMR 873. These cases are distinguishable from this case. The deposition of the respondents' side having been relied upon, the question has been resolved by the High Court on the respondents' plea that their evidence should be accepted as reliable as against the petitioners' evidence. The appraisal in this behalf by the High Court does not suffer from any infirmity, legal or otherwise. This petition, therefore, is dismissed.
Cited by 3 cases
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- Mst. Parveen Akhtar vs Subash Chandar, etc. 2016 IHC
- Mst. PARVEEN AKHTAR Versus SUBASH CHANDAR 2016 MLD 1596