Ex Parte Decree Without Due Service Cannot Stand: Supreme Court Explains Order V Rule 20

Independently written and published by Shahbaz Shah Legal Journal.

Due service comes before an ex parte decision

The Supreme Court of Pakistan has set aside an ex parte decree in a specific performance suit because the defendants were not duly served after the case returned to the trial court on remand. A lawyer's earlier appearance did not establish valid service when the lawyer expressly said he had no instructions and the record showed no subsequent authorization or appearance for the defendants.

In Ghulam Mujtaba (Deceased) through LRs v. Ghulam Murtaza, the Court held that knowledge of proceedings and due service are distinct questions. Newspaper publication cannot cure a failure to establish the legal foundation for substituted service. A party must receive a meaningful opportunity to answer the claim before an adverse adjudication is made.

Justices Jamal Khan Mandokhail and Shahid Bilal Hassan decided C.P.L.A. No. 1748 of 2023 with C.A. No. 298 of 2023 on 5 October 2026. Justice Hassan authored the judgment, which is approved for reporting. The Court allowed both matters and remanded the suit for a fresh decision after proper service. It expressed no opinion on the merits of the property dispute.

How the property dispute reached the Supreme Court

The litigation began with an agreement to sell dated 30 November 2004. The agreed price was Rs. 7,312,500, with Rs. 500,000 paid as earnest money. The balance was payable in instalments, and the sale deed was to be executed by 15 July 2005. The agreement also addressed further payments and delivery of possession of parts of the property.

Ghulam Murtaza filed a suit for specific performance on 29 November 2007. He claimed to have paid Rs. 2,500,000 in total, including the earnest money, and asserted that he remained ready to perform the agreement. Ghulam Mujtaba contested the claim, disputing the alleged payments and raising non-payment of the balance and maintainability among his objections.

The trial court decreed the suit on 31 May 2011. It did not accept the buyer's claim that he had paid a further Rs. 2,000,000 and required him to deposit Rs. 6,812,500 within one month.

Both parties appealed. On 29 March 2016, the High Court remanded the matter for a fresh decision on the additional-payment question while maintaining the findings concerning limitation and maintainability. The procedural defect examined by the Supreme Court arose during those post-remand proceedings.

The post-remand decree was made in the defendants' absence

After remand, the defendants were proceeded against ex parte. On 2 November 2016, the trial court accepted the claim of an additional Rs. 2,000,000 payment and assessed the remaining consideration at Rs. 5,312,500. The buyer appealed on the ground that the earnest money had not been deducted. That appeal resulted in the balance being fixed at Rs. 4,812,500.

The defendants sought to set aside the ex parte proceedings and the resulting decree. Their challenge eventually reached the Lahore High Court, Multan Bench, through Civil Revision No. 1646 of 2017, alongside Regular Second Appeal No. 229 of 2017. The Supreme Court proceedings challenged the High Court decisions dated 20 February 2023.

The Supreme Court identified a narrower question than entitlement to specific performance: could the trial court validly proceed ex parte after remand without first ensuring lawful service? Its answer determined both connected matters.

A former lawyer's lack of instructions was not service

Paragraphs 11 and 12 examine the order sheet. Process had been issued, but the process server reported that the lawyer who previously represented the defendants could not appear because he lacked instructions. The record did not establish that the defendants themselves had been served before substituted service was adopted.

The Court held that a lawyer cannot be regarded as accepting service merely because he represented a party earlier, particularly when he expressly has no instructions and the record discloses no subsequent authorization or appearance. Once the trial court became aware of that position, it had to ensure service on the defendants through the procedure prescribed by law.

The distinction matters in a remanded suit. Prior participation does not answer whether due notice was secured for the proceedings that followed. The judgment turns on the recorded absence of instructions and effective service; it does not declare that service through a duly authorized lawyer can never be valid.

Substituted service requires a recorded legal foundation

The Court applied the safeguards governing substituted service under Order V of the Code of Civil Procedure, 1908. Rule 20 permits substituted service only after the prescribed ordinary-service procedure has been followed and the court is satisfied that ordinary service cannot be effected or that the defendant is deliberately avoiding it.

In paragraph 13, the Court relied on Messrs Mobiserve Pakistan (Pvt.) Limited v. Messrs V-Tech and others, 2025 SCMR 1936. As discussed in the judgment, substituted service without compliance with its mandatory prerequisites renders the service process a nullity and undermines the proceedings built on it.

Paragraph 14 applies Hashim Khan and others v. Mst. Musarat Begum and others, 2025 SCMR 564. That authority likewise requires the court to satisfy itself that ordinary service could not be effected before adopting substituted service, and to preserve a fair opportunity of hearing.

These authorities are presented as discussed and applied in this judgment. The decisive point in Ghulam Mujtaba is the missing foundation for service after remand. Publication of a notice was not enough to make the subsequent ex parte adjudication lawful.

Why the defect was substantive

Paragraph 16 rejects treating the failure as a minor procedural irregularity. Notice and an opportunity to contest are fundamental to fair adjudication. A court cannot presume sufficient knowledge merely from a former lawyer's presence when that lawyer says he has no instructions.

The practical consequence was that the defendants lost their opportunity to challenge the buyer's evidence and present their own case before the additional payment was accepted. A finding reached after such a denial of participation could not be sustained on the assumption that earlier representation supplied notice.

The ruling preserves the principle that no person should be condemned unheard. It requires meaningful participation through due service, rather than an inference that a party probably knew about the litigation.

What the Supreme Court set aside

In paragraph 17, the Court granted leave, converted C.P.L.A. No. 1748 of 2023 into an appeal and allowed it. It set aside the High Court judgment dated 20 February 2023 in Civil Revision No. 1646 of 2017 and the consequential post-remand judgments and orders, including the ex parte judgment and decree dated 2 November 2016.

The connected C.A. No. 298 of 2023 was also allowed in the same terms. The decisions affirming the defective ex parte decree were set aside, and the dispute was returned to the trial court subject to the directions in paragraphs 17–19.

The trial court must ensure due and effective service on all concerned parties and allow a full opportunity to file pleadings, produce evidence and address arguments. It must then decide independently on the pleadings and evidence.

The timetable runs from appearance, not the judgment date

The trial court was directed to endeavour to decide the suit expeditiously, preferably within four months from the parties' first appearance pursuant to the Supreme Court order. The four-month period therefore does not begin automatically on 5 October 2026, and the language expresses a preferred timetable rather than an unconditional fixed deadline.

The District Judge concerned must arrange immediate transmission of the record and fix the matter before the appropriate court. The parties were directed to appear before the District Judge on 26 October 2026 without waiting for further notice.

The merits of specific performance remain open

The judgment does not determine whether the buyer proved the disputed Rs. 2,000,000 payment or whether he will ultimately obtain specific performance. Paragraph 19 expressly leaves the merits to the trial court's independent decision.

For lawyers examining an ex parte decree after remand, the order sheets, process reports, counsel's recorded authority and reasons for adopting substituted service are central. The argument should identify the actual service failure and its effect on participation, rather than assume that remand or newspaper publication alone resolves the question.

The decision is an authority on lawful notice and hearing in civil proceedings. Its setting was a specific performance suit, but the Court's operative reasoning concerns the procedural foundation for an ex parte adjudication.

For wider discussion, see specific performance of property sale agreements in Pakistan. The existing Legal News report provides the shorter account of this decision.