PLJ
2011 Peshawar 97
Present:
Syed Sajjad Hassan Shah, J.
TAHIR
MEHMOOD AFRIDI--Petitioner
versus
MUHAMMAD
DAYAR--Respondent
C.R.
No. 659 of 2010 with C.M. No. 704 of 2010, decided on 27.9.2010.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
V, Rr. 9, 10, 10-A, 12, 16 & 18--Mode of
service--Ex-parte decree--Setting aside of--Counsel
attending the Court without power of attorney--Neither correct address of the
defendant/petitioner was filed nor expenses deposited for issuance of
proclamation as was directed by trial Court--Proceedings procuring the service
of petitioner conducted in mode and manner not provided under the law--Counsel
attended the Court in the proceedings on behalf of the defendant was without
any power of attorney--Proceedings were unlawful and without
jurisdiction--Validity--Although before setting in service the process of
proclamation in newspaper had been directed to be made of service was the
personal service of the defendant as required under Order V, Rules, 9, 10,
10-A, 12, 16 & 18 of CPC to be procured not adhered to the service through
the means found impossible then the Court shall invoke the provisions of Rules,
17 & 20 of CPC. [Pp. 101 & 102]
A
Civil
Procedure Code, 1908 (V of 1908)--
----O.
V, R. 17--Ex-parte decree--Setting aside of service
of summons--Reasonable diligence--After the serving official cannot find the
defendant and when there is no agent to accept the service of summons on his
behalf the serving official then shall affix the copy of summons on the outer
door and some other conspicuous part of the house in which the defendant
ordinarily residence or carries on business--No notice through registered post
was directed to be sent to the defendant, however, there was no report of
process serving agency that in ordinary way, the service of the defendant was
impossible--Process of service declared unlawful and ex-parte
decree was set aside. [Pp. 102 &
103] B & D
Civil
Procedure Code, 1908 (V of 1908)--
----O.
IX, R. 20--Ex-parte--Purpose of avoiding service or
summons could not be served in ordinary way--Modes of service--Plaintiff had
failed to comply with the direction of the Court and the Court had under
misconception and without adhering to provision of law passed the direction for
publication in press under Rule 20 of Order IX of CPC, thus violated the
mandate directed at law by trial Court. [P.
102] C
1985 SCMR 1228, ref.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
V, R. 25--Mode of service--Service where defendant resides out of Pakistan, and
has no agent--Suit for recovery of outstanding amount--Ex-parte,
decree--Setting aside of--Counsel attended the proceedings on behalf of
defendant was without any power of attorney--Proceedings carried out by counsel
were unlawful and without jurisdiction--Validity--No service of defendant had
been proved by testimony of the concerned official, no witness was cited on
summon produced on the record, thus process of service conducted against the
law, the ex-parte decree was passed--Even, if the son
had been informed about the pendency of the suit it
does not amount due service in the eyes of law, because no efforts were made to
locate and find out the defendant in person, in absence, thereof, service on
the number of the family was not a proper and valid service as required under the
law--Mere knowledge of defendant that plaintiff had instituted suit against
them would not by itself constitute as service on them unless they themselves
waive service of summon on them which fact must be borne out from record of
case--Ex-parte decree was set aside and it was held
that same was without due service of notice on defendant--Ex-parte decree was set aside and case was remanded. [Pp. 103 & 104] E & F
1992 CLC 1553, NLR 1996 (Civil) 166 & NLR 1992 CLJ 40,
ref.
Mr.
Hassan Afridi, Advocate for
Petitioner.
Mr.
Khalil Ullah, Advocate for
Respondent.
Date
of hearing: 10.8.2010.
Judgment
Tahir Mehmood Afridi,
the petitioner by way of instant revision petition challenged the judgment and
order passed by the learned District Judge Kohat
dated 8.3.2010, whereby, the judgment and order dated 9.1.2010 passed by the
learned Civil Judge-XI, Kohat, whereby the
application made for setting aside the ex-parte
decree was dismissed.
1. Brief facts leading to the instant litigation
are that:--
Muhammad
Dayar, the plaintiff/respondent filed a suit against Tahir Mehmood Afridi,
the defendant/petitioner seeking decree for recovery of outstanding amount of Rs. 7,45,000/- against the
defendant/petitioner as the defendant/petitioner has failed to return the same
within a stipulated time. The matter was decided by Jirga
on 17.2.2005 to the effect that the defendant/petitioner acknowledged the
payment of Rs. 4,90,000/-
but rest of the amount was objected to, as without any justification, not
payable by the defendant/petitioner, the defendant/petitioner was summoned by
learned trial Court vide summons dated 27.6.2005, bailiff reported that the
defendant/petitioner has proceeded to abroad (Sri Lanka) in connection with his
employment. On 2.7.2002 learned trial Court directed the plaintiff/respondent
to file the correct address and the postal envelope alongwith
A.D. Card, but the plaintiff/respondent did not comply with the direction of
the Court, made an application for issuing proclamation in the newspaper. The
learned trial Court accepted the application, directed the proclamation be made
in the "Daily News", but the order dated 18.11.2005, reveals that
plaintiff/respondent in his application stated that the defendant/petitioner
residing within the territorial jurisdiction of this Court and willfully
avoiding the service of summons, therefore, the publication be made in the
Daily Mashriq, the application accepted and order as
per request of the plaintiff/respondent passed for publication in the daily
news paper. In pursuance to publication, ex-parte
proceedings were initiated against the defendant/petitioner on 7.12.2005,
however, on 19.12.2005 ex-parte evidence was
recorded. One Sardar Ali Khan, Advocate submitted his
memo of appearance on behalf of defendant/petitioner and made an application
for setting aside the ex-parte proceedings and was
directed to file wakalatnama on behalf of
defendant/petitioner on 1.2.2006. The said counsel again appeared on 16.2.2006,
filed an application for setting aside the ex-parte
decree, which was accepted at payment of cost as Rs.
3000/-, thereafter, the same counsel was directed to file duly signed wakalatnama alongwith the written
statement otherwise, ex-parte proceedings would be
initiated as directed by the Court.
On
15.3.2006 Sardar Ali, Advocate again attended the
Court but without written authority in his name, thus no written statement was
filed, therefore, the defendant/petitioner was proceeded ex-parte,
whereof the ex-parte evidence was recorded and the
case was fixed for arguments on 7.4.2006, the ex-parte
decree was passed on 18.4.2006.
The
defendant/petitioner made an application for setting aside the ex-parte decree dated 27.7.2006, on the second day of his
arrival from abroad, enclosed the copy of his passport, wherefrom it is evident
that the arrival of defendant/petitioner in Pakistan was recorded as 26.7.2006,
the same is Ex.PW-1/1 to Ex.PW-1/3, in his application he has totally denied
the knowledge of pendency of the suit or receipt of
any summons. He further contended that for the last three years, he in
connection with his employment is out of the country i.e. Dubai, Malaysia,
Bangkok, he also asserted that he neither appointed attorney nor engaged any
advocate to conduct his case nor he was informed about the pendency
of the suit, by anyone else, on his arrival in Pakistan, he came to know by his
son about the ex-parte decree.
The
application was contested by the plaintiff/respondent by filing his
replication. In support of application, the defendant/petitioner was examined as
PW-1, the statement made on Oath about the facts recorded in the application.
RW-1 Mir Bacha was examined as attorney of the
plaintiff/respondent, Sardar Ali was examined as
CW-1, eventually, the application filed by the defendant/petitioner was dismissed
vide order dated 3.1.2010, an appeal was filed to assail the judgment and order
of learned trial Court, same was also dismissed, hence the present revision
petition.
2. The learned counsel appearing on behalf of
defendant/petitioner argued that the plaintiff/respondent has filed a false and
baseless claim against the defendant/petitioner and put all efforts to procure
the ex-parte decree in his favour.
He further argued that the plaintiff/respondent made misstatement, whereof,
learned trial Court has also on account of misconception, created by the
plaintiff/respondent, proceeded with the case and has not adhered to the
provisions contained in Order 5 of the C.P.C. The learned counsel further
argued that the ex-parte decree haphazardly passed by
the learned trial Court, without its satisfaction and recording reasons for
proceedings ex-parte against the
defendant/petitioner, however, the proceedings procuring the service of
dependant/petitioner conducted in the mode and manner not provided under the
law. According to learned counsel, Mr. Sardar Ali,
Advocate was attending the Court in the proceedings of the case, on behalf of
the defendant/petitioner was without any power of attorney, therefore the
proceedings carried out by Sardar Ali were unlawful
and without jurisdiction and the result of the collusion of the
plaintiff/respondent. The learned counsel also pressed into service the
provisions of Section 13 of the Limitation Act, as admittedly the
defendant/petitioner was not present in his house and was out of country,
therefore, he is entitled, for the benefit available under the law. He placed
reliance on 1985 SCMR 1228, 1992 CLC 1553, NLR 1986 (Civil) 106.
3. The learned counsel for plaintiff/respondent
strenuously controverted the arguments of learned counsel
for the defendant/ petitioner, he argued that Sardar
Ali, Advocate filed memo of appearance as per direction of the
defendant/petitioner, although filing of the memo of appearance is permissible
under Order III, Rule 5 of the C.P.C., he made an application for setting aside
the ex-parte decree, which was accepted but has
failed to file the written statement, therefore, again ex-parte
decree was passed against the defendant/petitioner. He further contended that
the defendant/petitioner was fully aware of the suit proceedings,
his son was duly informed by the bailiff of the Court. According to learned
counsel the service of the son is considered to be the service of his father.
He further contended that the application is hopelessly time barred, no application
under Section 5 of the Limitation Act made for condonation
of delay and no affidavit appended with the application. Moreso,
the memo of appearance was not challenged by the defendant/petitioner and no
proceedings were initiated against Sardar Ali, Advocate.
While concluding his arguments learned counsel placed reliance on 2005 SCMR
609.
4. Arguments of learned counsel for the parties
considered, record carefully perused.
5. The summons were issued to procure the
attendance of defendant/petitioner, but as per report of bailiff of the Court,
the defendant/petitioner was not present in his house, as he proceeded out of
the country in connection with his employment. The alleged report dated
22.06.2005 made as per information furnished by Kinan
Shah son of defendant/petitioner, but the same was not signed by the son of the
defendant/petitioner, no body stood witness to said report, moreso,
the report made on summons not proved by examination of the author, but the
learned trial Court believed the alleged report of the bailiff, pursuance
thereto, on 2.7.2005, passed an order for furnishing correct address of the
defendant/petitioner alongwith postal envelope and AD
Card. But the order has not been complied with, however, on the application
made by the plaintiff/respondent, directed the proclamation in the "The
Daily News". On 18.11.2005 the date fixed for attendance of the
defendant/petitioner but neither the correct address of the
defendant/petitioner filed nor the expenses deposited for issuing proclamation,
as was directed by the learned trial Court. It is evident from perusal of said
order sheet that application was made by the plaintiff/respondent, wherein, he
has stated that "the defendant/petitioner is residing within the
jurisdiction of this Court and willfully avoiding the process of service
directed by the Court, so the publication be made in
the "Daily Mashriq".
6. In view of the above statement of
plaintiff/respondent, it can be alluded that he was in the knowledge of address
of the defendant/ petitioner, thus willfully avoided to furnish the same, this
is the obvious violation of Order V, Rules 9, 10 and 10A of the C.P.C. because
the plaintiff/respondent was bound to furnish the correct address alongwith AD Card for service by post of the defendant/petitioner,
this mode of service is required for the reason that if the
defendant/petitioner is residing at his house, he can be informed by means of
service by post. But at the very outset, on the misstatement of the
plaintiff/respondent, the proclamation has been directed to be made in the
Daily Mashriq, although before setting in service the
process of proclamation in News Paper,
the requirement of law
that first mode of service is the personal service of the defendant/petitioner
as required under Order V, Rules 9, 10, 10A, 12, 16 and 18 of the C.P.C. to be
procured not adhered to the service through said means found impossible, then
the Court shall invoke the provisions of Rules 17 & 20 of the C.P.C.
7. In this case the statement was made by the plaintiff/respondent
that the defendant/petitioner is willfully avoiding service although he is
present at his house. After using due and reasonable diligence, if the serving
official cannot find the defendant/petitioner and when there is no agent to accept
the service of the summons on his behalf, the serving official then shall affix
the copy of summons on the outer door and some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business. The
record demonstrates that the direction passed to procure the service of
defendant/petitioner in terms of Rule 17 of Order V of the C.P.C. not after
having been satisfied that there were sufficient reasons existed to believe
that the defendant was keeping out of the way for the purpose of avoiding
service or summons could not be served in the ordinary way then the Court to
have passed an order for service of summons by substituted service. That also
includes the publication in press, besides other modes of service. In this case,
the plaintiff/respondent has failed to comply with the direction of the Court
and the Court has also under misconception and without adhering to the above
said provisions of law passed the direction for publication in press under Rule
20 of Order IX of the C.P.C., thus violated the mandate directed at law by the
learned trial Court. In this aspect of the matter, a reference can be made to a
case titled Syed Muhammad Anwar,
Advocate versus Sheikh Abdul Haq reported as 1985
SCMR 1228, wherein, it is held that:--
Civil
Procedure Code (V of 1908)--
--O.
V, Rr. 17, 20 & O. IX, R. 13, Proviso--Ex-Parte decree--Setting aside of--Service of
summons--Application for setting aside ex-parte
decree filed after period of limitation--Court ordering substituted service on
defendant having formed opinion that it was not possible to have defendant
served in ordinary way--Opinion not supported on basis of record--Failure to
record finding about defendant's keeping out of way for purposes of avoiding
service--Ordinary ways of service of summons not resorted to--Irregular service
of summons not to be treated as "due service" for purposes of
Limitation Act, 1908--Proviso to O.IX, R. 13, C.P.C. not to cover illegality in
service of summons--Defendant having no knowledge of Date of hearing when ex-parte decree was passed against him, belated application
for setting aside ex-parte decree, held, not time
barred--Supreme Court allowing defendant's appeal, setting aside High Court's
order passed in revision petition, and restoring order of trial Court by which
ex-parte decree was set-aside--Parties directed to
appear before trial Court.
In
the cited case twice, it was reported by the bailiff of the Court that the
defendant has gone out of Lahore, moreso, no notice
through registered post was directed to be sent to the defendant, however, two
reports have not been considered as sufficient compliance of the rules ibid and
there was no report of process serving agency that in ordinary way, the service
of the defendant was impossible. Moreover, in the cited case, the trial Court
had failed to record findings about the defendant's keeping out of way for the
purpose of avoiding service, therefore, the process of service declared
unlawful and the ex-parte decree was set-aside.
8. Since no due service has been effected in the instant case in the manner prescribed under
the law, as the proclamation made in violation of law and that too in the
"Daily Mashriq" for procuring the service
of a person residing in Sri Lanka, not adopted the proper
mode of service. Notwithstanding, no service of the defendant/petitioner has
been proved by the testimony of the concerned official, no witness was cited on
the summon produced on the record, thus the process of
service conducted against the law, the ex-parte decree
was passed. Even, if the son has been informed about the pendency
of the suit it does not amount due service in the eye of law, because no
efforts were made to locate and find out the defendant/petitioner in person, in
absence thereof, service on the member of the family was not a proper and valid
service, as required under the law. Reference can be made of a case titled
"Dharam Chand Gain
versus Kanak Sarkar,
reported as AIR 1921 Calcutta 63, relevant citation reproduced as under:
"The
statute does not require that the enquiry should be confined to the son of the
defendant or to a person related to him. An attempt could easily have been made
to find, out the defendant by an enquiry from his neighbors or other person.
The District Judge has not also found whether the son was an adult male member
of the family residing with him. The findings are thus insufficient to justify
the decree, for it is essential that the requirements of the Statute in these
matters should be strictly carried out".
9. When the defendant/petitioner is reported to
have gone out of the country then the service is to be effected in terms of
Order V, Rule 25 of the C.P.C, for convenience sake, reproduced as under:
O.V,
R. 25--Service where defendant resides out of Pakistan, and has no agent.--Where
the defendant resides out of [Pakistan] and has no agent in [Pakistan]
empowered to accept service, the summons shall [except in the cases mentioned
in Rule 26-A] be addressed to the defendant at the place where he is residing
and sent to him by post, if there is postal communication between such place
and the place where the Court is situate.
10. Moreso, in a case
titled NBP versus Bawani Industries and another
reported as 1992 CLC 1553 in similar circumstances, it was head that:--
(b) Civil Procedure Code (V of 1908)--
--O.
V, R. 20--Substituted Service--Defendant being out of Pakistan, substituted
service on him through publication in a local newspaper could not be treated as
sufficient service-Defendant would be taken to have not been duly served as per
provision of O.V, R.20, Civil Procedure Code, 1908.
11. While discussing the provisions contained in
Order V, Rule 20 of the C.P.C. it was held in Haji Kiramat Hussain versus Naik Khan Muhammad, reported as NLR 1996 (Civil) 106, head
note `a & b' reproduced as under:--
(a) Civil Procedure Code (V of 1908)--
--Order
V, Rule 20--Notice to defendant residing in England once issued but not
served--Nothing on record to suggest that defendant was avoiding service--Held:
Substituted service could not be ordered in such a situation and it being
demonstrably false was void.
(b) Substituted service--
--Compliance
with rules contained in O.V, CPC is essential before resorting to substituted
service--Knowledge of institution of suit derived aliunde
by defendant--Does not warrant order for substituted service after dispensing
with proper service of summons-All available steps to effect proper service
must be made before resort is made to substituted service through publication.
12. In similar circumstances, the decree was
set-aside, on the ground that mere knowledge of defendant that plaintiff had
instituted suit against them would not by itself constitute as service on them
unless they themselves waive service of summon on them which fact must be borne
out from record of case, therefore, the ex-parte
decree was set-aside and it was held that same was without due service of
notice on defendants. In this regard, reference can be made to the case titled
"Javed Raza versus Razi Ahmed, etc", reported as NLR 1992 CLJ 40, head
note `a' reproduced as under:--
(a) Civil
Procedure Code (V of 1908)--
--Order
V, Rule 20, substituted service of defendants would not be warranted in a case
where there is nothing in plaintiff's application u/R. 20 that he does not know
any other address of defendants. Substituted service can be resorted to only
when conditions warranting it exist and strict compliance is made of Rule 20.
13. In view of above-referred legal and factual
plane of the instant matter, it is crystal clear that no due service of
defendant/petitioner was procured, thus, ex-parte
proceedings, whereof, the judgment and decree passed by the learned trial Court
and maintained by the learned appellate Court, being unlawful, without
jurisdiction, hereby, set-aside, the suit is remanded back to the learned trial
Court and deemed to be pending. The learned trial Court is directed to proceed
in the matter in accordance with law, providing opportunity of hearing to both
the parties, and then to decide the suit within a period of not later than six
months positively, alter receipt of the record.
(R.A.) Case
remanded.
