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Supreme Court orders fresh hearing after defective service
ISLAMABAD: The Supreme Court of Pakistan has set aside an ex parte decree in a specific performance suit, holding that a lawyer’s earlier appearance did not amount to valid service after remand when the lawyer expressly said he had no instructions.
The judgment in Ghulam Mujtaba (Deceased) through LRs v. Ghulam Murtaza was delivered on 5 October 2026 by Justices Jamal Khan Mandokhail and Shahid Bilal Hassan. Justice Hassan authored the decision in C.P.L.A. No. 1748 of 2023, heard with C.A. No. 298 of 2023. The supplied judgment is marked approved for reporting; no law-report citation is stated in it.
The Court granted leave, converted the petition into an appeal and allowed it. It also allowed the connected civil appeal. The dispute returns to the trial court for a fresh decision after proper service and a full opportunity for the parties to present their cases. The Supreme Court expressly left the merits open.
Download the full judgment — PDF, 7 pages, or view the judgment.
Dispute arose from an agreement to sell
The litigation concerned an agreement dated 30 November 2004 for property priced at Rs. 7,312,500. Earnest money of Rs. 500,000 was paid. The buyer claimed further payments and sought specific performance after the sale deed was not executed.
The trial court initially decreed the suit on 31 May 2011 but did not accept the claimed additional payment of Rs. 2 million. Following appeals, the matter was remanded on 29 March 2016 for a fresh decision on that payment question.
During the proceedings after remand, the seller’s legal representatives were proceeded against ex parte. The resulting decree dated 2 November 2016 accepted the additional payment. Further proceedings concerned the remaining sale consideration and the challenge to the ex parte adjudication. The Supreme Court considered whether the parties had been lawfully served before that adjudication, rather than deciding which payment account was correct.
Earlier counsel’s lack of instructions did not establish service
The order sheet showed that the lawyer who had previously represented the petitioners could not appear for want of instructions. The Supreme Court found no record establishing valid service on the petitioners themselves before substituted service was adopted.
In paragraphs 11–12, the Court distinguished knowledge of proceedings from due service. A lawyer who expressly lacks instructions cannot, merely because of an earlier appearance, be treated as accepting service where the record shows no subsequent authorization or appearance for the party. Once the trial court knew of that position, it had to arrange service according to law.
The decision rests on that record. It does not declare that service through an authorized lawyer can never be effective.
Newspaper publication required the statutory foundation
The Court applied the safeguards governing substituted service under Order V of the Code of Civil Procedure, including Rule 20. Before adopting substituted service, a court must follow the prescribed ordinary-service procedure and satisfy itself that ordinary service cannot be effected or that the defendant is deliberately avoiding service.
It relied on Messrs Mobiserve Pakistan (Pvt.) Limited v. Messrs V-Tech and others, 2025 SCMR 1936, and Hashim Khan and others v. Mst. Musarat Begum and others, 2025 SCMR 564. Those authorities are identified as cited in this judgment; this report does not independently restate their full facts.
The failure here was substantive, not a harmless technical defect. The parties had been denied a meaningful opportunity to answer the claim and produce evidence. Newspaper publication did not cure the missing foundation for valid service.
Suit remanded; parties directed to appear on 26 October
The Supreme Court set aside the Lahore High Court, Multan Bench’s judgment dated 20 February 2023 in Civil Revision No. 1646 of 2017, together with the consequential post-remand judgments and orders, including the ex parte decree of 2 November 2016. The connected C.A. No. 298 of 2023 was allowed on the same terms.
The trial court must ensure due and effective service, allow pleadings, evidence and arguments, and decide independently. It is to endeavour to decide the suit expeditiously, preferably within four months of the parties’ first appearance pursuant to the order. This is not a four-month period running from the Supreme Court’s judgment date.
The District Judge must arrange transmission of the record and fix the matter before the appropriate court. The parties must appear before the District Judge concerned on 26 October 2026 without awaiting further notice. Paragraphs 17–19 contain these directions.
Judgment particulars and sources
- Case: Ghulam Mujtaba (Deceased) through LRs v. Ghulam Murtaza.
- Court: Supreme Court of Pakistan, Appellate Jurisdiction.
- Proceedings: C.P.L.A. No. 1748 of 2023 with C.A. No. 298 of 2023.
- Decision and hearing date: 5 October 2026.
- Bench: Justices Jamal Khan Mandokhail and Shahid Bilal Hassan.
- Author: Justice Shahid Bilal Hassan.
- Reporting status: approved for reporting; no reporter citation stated in the supplied PDF.
- Result: appeals allowed; ex parte proceedings and consequential decisions set aside; suit remanded without deciding its merits.
The download reproduces the supplied judgment unchanged. The Supreme Court’s official case-information portal provides an alternative court-record route using the case numbers above. The report is based on the supplied judgment; a separate direct court-hosted PDF was not verified.