LAHORE: The Lahore High Court has held that without establishing on record the service of notice personally on a petitioner/respondent, reliance on publication of the notice could not be considered safe to presume service, particularly when he/she was an illiterate villager.
The court passed these observations in a petition of Sadaf Rasheed challenging ex-part decree of a Khanewal family court. The court set aside the impugned order and held that the custody of the minor Tahira Mai shall be deemed to be pending for decision afresh in accordance with the law. The court transferred the case from Khanewal to a family court of Shorkot.
The court said undeniably, neither the process server was produced as a witness in the instant case to establish personal service of summons upon the petitioner in accordance with law nor any reference to his report to the said effect has been made in the impugned order.
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The court below has presumed the petitioner’s knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her Khanewal address and that notice was also published in the newspaper, the court added.
And the court below without framing issues and recording evidence, decided the factual controversy qua residential address of the petitioner while relying only on a photocopy of the petitioner’s alleged second marriage in Khanewal district, the court added. In the absence of proper service and adequate opportunity of hearing granted to both sides, any determination of the welfare of the minor cannot be termed as lawful, the court concluded.
The petitioner assailed the order of a Khanewal family court. The petitioner’s counsel contended that the impugned order has been passed erroneously.
The respondent Ghulam Abbas approached the court for custody of the minor while showing the petitioner to be a resident of Khanewal and obtained ex-part decree which was the result of fraud, misrepresentation, and concealment of facts.
The petitioner had no knowledge of proceedings as summons was never served upon her personally. She also claimed that after abandoning the child at the age of four months, the respondent took little interest in the welfare of the minor and never paid a single rupee until he moved an application for custody of the minor when she attained the age of six years.
Copyright Business Recorder, 2023
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