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Petitioner: Mst. AFZAL BEGUM AND Other VS Respondent: Y. M. C. A. THROUGH ITS GENERAL SECRETARY
Court Name: Supreme Court of Pakistan Judge(s): Malik Muhammad Akram, Waheeduddin Ahmad, Nasim Hasan Shah Title: Mst. AFZAL BEGUM AND Other vs Y. M. C. A. THROUGH ITS GENERAL SECRETARY Case No.:Civil Petition No. 136 of 1978 Civil Miscellaneous Petitions Nos. 1124-C/78 and
JUDGMENT
Reported As: PLD 1979 Supreme Court 18 Result: H. Judgment JUDGMENT MUHAMMAD AKRAM, J. This is a petition for special leave from the order dated 25th of February 1978 passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed in limine the two miscellaneous petitions filed by the petitioners herein against the respondent. In brief the relevant facts are that one Nazar Muhammad Uppal, predecessor of the petitioners herein, was a tenant under the respondent in respect of a shop situated in the Y. M. C. A. Building, The Mall, Lahore. He died sometimes in the year 1961. After his death, on the 25th of July 1962, the respondent filed an application against the petitioners, as the legal representatives of the original tenant, under section 13 of the Urban Rent Restriction Ordinance, 1969 for their ejectment from the premises on the ground of default in the payment of rent and also for subletting the premises. In this petition petitioners Nos. 3 to 7, daughters and son of late Nazar Mohammad Uppal, were sued as minors through their mother Mst. Afzal Begum petitioner as their guardian. Eventually on the 2nd of March 1963, the Rent Controller, Lahore, dismissed the petition on the merits finding in favour of the petitioners on all the issues. The order was substantially affirmed on appeal of the respondent rejected by the District Judge on the 29th of April 1965. On the 30th of June 1965 the respondent filed a second appeal (S. A. O. No. 381 of 1965) from the order in the High Court at Lahore. It appears that two separate notices of this appeal were sent by the High Court to Mst. Afzal Begum petitioner No. 1 for self as well as the guardian ad liters of respondents Nos. 3 to 7 and Mst. Hajran Begum, respondent No. 2 on their address at House No. 33- D, Kucha Haji Elahi Bakhsh, inside Lohari Gate, Lahore. But the process server reported that the addressees were not available at their given address. Afterwards on the 6th of April 1966, the
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respondent made an application under rule 20 of Order V read with section 151 of the Code of Civil Procedure to the effect that it has not been able to find out the where about of the petitioners herein in spite of the best efforts made by it and even their relatives have refused to supply any information on the point, and that it was not possible to serve the petitioners in the ordinary course. It was therefore, prayed that they may be ordered to be served by substituted service on them in the appeal filed against them. On this on the 8th of April 1966, the High Court accepted the application and ordered that the service may be effected on the petitioners herein (the respondents in the appeal) by publication of the notice in an Urdu newspaper. In pursuance to this order a notice to that effect was published against them at their last known address in the daily Mashriq dated 17th of August 1970 for the 9th of September 1970 (actual). But on this date of hearing neither the petitioners nor their learned counsel appeared and ex parte proceedings were ordered against the major respondents Nos. 1 and 2 in the appeal and as to the minor respondents 3 to 7, the Court directed that suitable steps may be taken for the appointment of their Court guardian. In obedience to this order on an application moved by the appellant in the appeal, on the 26th of October 1970 the Court appointed Mr. Maula Bakhsh Khizar Tamimi, Advocate, as guardian ad !Item for the minor respondents Nos. 3 to 7 in the appeal. In these circumstances the appeal of the respondent was put up for hearing before a learned Judge of the Lahore High Court at Lahore on the 9th of April 1974. Neither respondents Nos. 1 and 2 nor their counsel appeared at the hearing in the appeal and the High Court after hearing the appellant and the guardian ad item for the minor respondents Nos. 3 to 7, accepted the appeal and ordered the ejectment of the respondents (petitioners herein) on both the grounds. In that connection the Court observed that on the date of the filing of the petition for ejectment the tenant was in arrears in the payment of the due rent amounting to Rs. 1,584. But it was argued that the Secretary of the respondent had failed to accept the rent when it was tendered to him from time to time. However, according to the High Court the tender was made only in respect of the rent due for the period after the death of the original tenant who was himself in default in the payment of the rent due from him to the landlord. Moreover, from the admission made on behalf of the petitioners at the trial before the Rent Controller to the effect that the shop in question was at first occupied by the Board, then by one Mohyud Din and lastly by a person dealing in children's cycles etc., the High Court formed the opinion that it had been further leased out to them and that they were the sub- tenants in the shop. The High Court, therefore, in accepting the appeal ex parte against the appellants herein directed their ejectment from the premises. In order to complete the narration it may be stated here that during the pendency of the appeal before the High Court, Mst. Hajran Begum, respondent No. 2, mother of the original tenant, had also died on the 13th of September 1968. But this fact remained unnoticed by the appellant and no application whatever was made in the appeal to bring her legal representa--tives on the record. The case of the petitioners was that they bad no knowledge and remained all along ignorant about the ejectment order that was thus passed ex parte in favour of the respondent by the High Court. It was only after the 7th of April 1977 when the respondent took out the execution proceedings against them for their ejectment from the shop in question that they learnt about it when the bailiff appeared at the shop with the warrant to actually evict them. Therefore, on the 23rd of February 1978, the petitioners herein, including Sh. Inam Elahi petitioner No. 2, claiming as a legal representative of Mst. Hajran Begum deceased, filed the two miscellaneous applications No. 1124-C of 1978 under rule 21 of Order XLI of the Code of Civil Procedure for setting aside the ex parte order dated 9th of April 1974 passed against them and for a rehearing of the appeal disposed of ex parte by the High Court and No. 11.26-C of 1978 under rule 9 of Order XXII read with section 151 of the Code to contend that the appeal of the respondent had already abated as a whole by virtue of the death of Mst. Hajran Begum deceased and the failure of the respondent to
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implead her legal representatives within time and consequently the order of their ejectment dated 9th of April 1975 passed by the High Court was ab initio void and illegal. But, as already stated above, a learned Judge of the Lahore High Court at Lahore dismissed in limine both the applications by a single order passed on the 25th of February 1978. Hence; this petition for special leave to appeal from it. We have heard the learned counsel for the petitioners in this petition at great length. In the High Court the petitioners had applied for setting aside the ex parte order passed in appeal on the three main grounds- Firstly, that they were not duly served in the appeal ; secondly, that two of the respondents, namely, Mst. Parveen Akhtar and Mst. Tasneem Akhtar respondents Nos. 3 and 4 in the appeal had attained majority by the time the appeal came up for hearing and consequently the proceedings taken against them without removing their guardian on their attaining majority, were without lawful authority and had no legal effect ; Thirdly, that Inam Elahi, a legal representative of Mst. Hajran 'Begum deceased who bad died before the date of hearing of the appeal was not brought on record and thereby the appeal itself had abated as a whole and could not have been proceeded with. But the High Court repelled these contentions and in its impugned order dated 25-2-1 78 remarked that the only reason for the condo nation of the delay in the two miscellaneous applications urged at the bar was that the execution application had been made by the respondent after almost three years and that the petitioners had all along remained ignorant about the ejectment order and had learnt about it only on 14-2-1978. In this connection however, the High Court observed that the execution application was in fact put in Court by the respondent on the 7th of April 1977 and that it was rather difficult to believe that the petitioners bad all along remained ignorant and did not come to know about the ex parte ejectment order passed against them for almost four long years. In the opinion of the Court the period of limitation for the application for setting aside of the ex parte order passed in the appeal was 30 days only under Article 169 of the Limitation Act. The petitioners were served by citation in the appeal and a case was made out to the satisfaction of the Court for effecting the service in the appeal on them by citation in accordance with the provisions contained in rule 20 of Order V of the Code. The substituted service thus effected on the petitioners was due service and as such the limitation for the application for rehearing of the appeal started from the date of the passing of the final order in appeal. It was, therefore, barred by time and no case was made out for condonation of the delay. In the opinion of the learned Single Judge the death of Mst. Hajran Begum during the pendency of the appeal of the respondent in the year 1968 was hardly of any consequence, since her legal representatives (petitioners Nos. 3 to 7) were already on the record and as such the question about the abatement of the appeal did not arise. In this connection the learned Judge in Chambers remarked that Inam Elahi petitioner, is a son of pre-deceased daughter of Mst. Hajran Begum deceased and as such he was not entitled to succeed to her estate in preference to respondents 3 to 7. He did not find any force in the contention that Mst. Parveen Akhtar and Tasneem Akhtar petitioners had already attained majority when the impugned order was passed in the appeal. He observed that the proceedings started before the Rent Controller in 1962, when Mst. Parveen Akhtar was allegedly about 21 years in age according to School certificate filed in the High Court.She was proceeded against as a minor from the very beginning of the ejectment proceedings before Rent Controller and was treated as such during the appeal also. In conclusion therefore, the High Court dismissed in limine the two petitions before it on 25-2-1978. In this petition for special leave to appeal from the impugned order passed by the High Court the learned counsel for the petitioners addressed his arguments at great length before res. He admitted that at first the notices in the appeal filed by the respondent in the High Court were sent
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to Mst. Afzal Begum and Mst. Hajran Begum at their given addresses at House No. 33-D, Kucha Haji Elahr Bakhsh, inside Lohari Gate, Lahore. The process server however, reported that the addressees were not available at their given addresses. It was asserted on behalf of the petitioners that even before the appeal was actually filed in the High Court the respondents had already shifted to a new place of their residence and changed their addresses. At any rate, to the knowledge of the respondent they were at the time carrying on their business as before in the demised premises in a part of the Y. M. C. A. Building. But no attempt was at all made to effect service on them at their new residential address or even at their known place of business. In fact, according to the learned counsel the respondent had willfully managed to suppress the service of the notices in the appeal on the petitioners and had obtained the order for effecting substituted service on them by misrepresenta--tion to the Court and by deceit. In these circumstances according to the learned counsel for the petitioners, they were not "duly served" in the appeal and as such their application to set aside the ex parte order of their ejectment made within 30 days of their knowledge of the same, was within time under Article 169 of the Limitation Act. The learned counsel further submitted that at any rate the appeal of the respondent filed in the High Court had itself abated in toto on the death of Mst. Hajran Begum respondent in the absence of her legal representatives brought on the record. Moreover, according to the learned counsel some of the petitioners had already attained majority ,and therefore, they were not effectively represented by their guardian ad item appointed by the High Court during their minority and the impugned order of their ejectment thus procured in the appeal did not bind them. 1t may be seen that the respondent filed its second appeal in the High Court on 30-6-1965 against the appellate order dated 29-4-1965 passed by the District Judge, Lahore. At first the notices of the appeal in the High Court were issued to them at their given addresses. But those were returned unserved with the report made by the process server to the effect that the addressees were not available on their address. In this connection according to their learned counsel also they were admittedly not available at their given address. He, submitted that in the beginning of June 1965 they had already shifted to take up their residence in a house situated in a different locality on Rajgarh Road, Lahore. In support of this contention he attempted to rely on an extract produced from a deed-writer's register about a rent deed having been executed by Javid Iqbal Uppal petitioner No. 7 in favour of the landlord of that house in April 1965. It purports to show that the tenancy was to be for a period of eleven months commencing from 1-5-1965, although at the same time at another place in the body of the rent deed allegedly executed in April 1965 it is also stated that as per oral agreement he has already taken possession of the demised premises from the landlord. In this connection b: fore proceeding further it is worthwhile to mention here that rule 11 of Order VIII (Punjab Amendment) of the Code of Civil Procedure expressly lays down that every party who appears in any suit or other proceedings shall file in Court a statement stating his address for service and if he fails to do so he shall be liable to have his defence struck out and to be placed in a position as if he had not defended. It is a mandatory provision of the law. It is further laid down in rule 12 of Order VIII read with rule 24 of Order VII of the Code (Punjab Amendment) that any party who desires to change the address for service given by him as aforesaid shall file a verified petition and the Court may direct the amendment of the record accordingly, with notice to the opposite party. In the same context rule 22 of Order VII further provides for service by affixation of a copy of notice or process on the outer door of the house of a party at his given address, even though he or anybody else to accept service on his behalf is not available there. The service thus effected in accordance with the rule is deemed to be as effectual as if the notice has been personally served. Even rule 20(1) of Order V of the Code also inter alia provides for service by affixation of a copy of
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the summons in some conspicuous place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have last resided. In this connection it is evident from the record that the respondent ha filed his first appeal against the petitioners on 8-4-1964 and it remained pending till 29-4-1965 when it was eventually dismissed by the District Judge, Lahore. Inspite of this the petitioners, who were the respondents in the appeal before the District Judge, allowed their old address to stand on the record and did not intimate to the Court about their actual or contemplated change (as alleged by them) in their address during the pendency of the appeal. For this they are themselves to be blamed. In the circumstances the respondent seems to have acted in perfect good faith in filing the appeal against them at their old given address and they could not be blamed for their alleged failure to file their new address in the appeal if indeed they had in fact abandoned their last known place of residence. According to the respondent's application dated 6-4-1966 made to the High Court under Order V, rule 20 read with section 151 of the Code the notices issued at the petitioners' address were returned unserved with the reports that they could not be traced at the given address and that in spite of its best efforts their whereabouts could not be found. In these circumstances the Court had ordered that substituted service may be effected on them in the appeal. Indeed, in the circumstances the Court could have as well resorted to the provisions laid down in rule 22 of Order VII of the Code and readily effected the service on the petitioners by affixation of the notices on the outer door of the house at their given address. But the Court found it more advisable in its discretion to adopt a better and comparatively less suspicious mode by directing that substituted service may be effected on them by publication of the notices in the Daily Mashriq in accordance with the provisions contained in sub-rule (1) of rule 20 of Order V of the Code. In this connection sub-rule (2) of rule 20 of Order V of the Code expressly lays down that such a service substituted by order of the Court shall B be as effectual as if it had been made on the defendant personally. In dilating upon this provision in the Full Bench cass of Ram Bharose v. Ganga Singh (AIR 1931 AII.727), Sulaiman Acting C. J. In his separate judgment observed that :- "The procedure for the service of summons is laid down in Order V, Civil Procedure Code. Where the service is not personal, it may be substituted. Under Order V, rule 20(2) service substituted by order of the Court is as effectual as if it had been made on the defendant personally. But as at the time when the substituted service is ordered the proceedings are ex parte, it would be open to the defendant when he appears later to challenge the propriety of the order and ask the Court to re- examine its fitness. If in view of any additional circum--stances which he is able to place before the Court he can satisfy it that he was not keeping out of the way and that there was no sufficient reason why the summons could not be served in the ordinary way or that the manner of service decided upon was not fair and just to him, he would have discharged the burden of showing that there was no due service." If I may say so in all humility and with due deference that it was right observed above that where substituted service has been effected on the defendant under this rule and ex parse decree was passed against the defendant, thereby the defendant is not precluded from afterwards showing to the satisfaction of the Court that order for the substituted service was improperly procured, in the absence of the defendant, at the behest of the plaintiff on the one sided representations made by him at the time and that he was not duly served in the matter. The machinery for setting aside of the exparte decree is provided in rule 13 of Order IX of the Code. It lays down that in any case in which decree is passed ex parte against a defendant be may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting
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aside the decree as against him. Likewise rule 21 of Order XLI of the Code lays down that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal ; and, if he satisfies the Court that the notice wa3 not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall rehear the appeal. However, the necessary application in this behalf has to be made within the period of limitation prescribed under Article 164 of the Limitation Act to set aside a decree passed ex parte on the original aside and under Article 169 thereof for re-hearing of an appeal heard ex parte. According to both these Articles the period of limitation prescribed is thirty days only from the date of the original or appellate decree or where the summons or the notice of the appeal, according as the case may be, was not "duly served", when the applicant had knowledge of the decree. In other words under these provisions when there is due service of the summons in the suit or notice of the appeal the period of limitation prescribed for the application to set aside: the ex parte decree or for rehearing of the appeal heard ex parse, shall be computed from the date of the decree in question. In case however, the; summons or notice of the appeal was not "duly served" then the limitation commences only when the applicant has knowledge of the decree. It may be seen that under these provisions the time will run from the date of knowledge of the decree only where the summons or the notice of the appeal, according as the case may be, is not duly served. In case however, summons or notice has been duly served then the date of knowledge of the decree by the applicant is immaterial and period of limitation starts running from the date of the decree itself. The term "duly served" used in the context of Articles 164 and 169 is not defined in the Limitation Act. As already Stated above sub-rule (2) of rule 20 of Order V of Code itself lays down that service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. In this connection it was laid down in Dittu Ram v. Nawab (AIR 1925 Lab. 634), that in the case of substituted service, a summons is duly served for the purpose of Article 164 of the Limitation Act even though it did not in fact come to the knowledge of the defendant. This case was cited with approval in Hans Raj v. Narain Singh and another (AIR 1931 Lah. 118). Similarly in some of the reported cases from the High Court of Calcutta and the Court of the Judicial Commis--sioner of Peshawar substituted service as such if effected in accordance with the requirement of the rule was taken as "due service" within the meanings of Article 164 of the Limitation Act. Even in the reported case from the Madras High Court in K. B. Narasimha Chettiar v. K P. Balakrishna Chetty (AIR 1927 Mad. 487), Madhovan Nair, J. In relying on Dittu Ram v. Nawab, held that if the substituted service effected in accordance with the requirements of the provisions of rule 20 of Order V of the Code, the summons is duly served on the defendant within the meanings of Article 164 of the Limitation Act even though it did not in fact come to the defendant's knowledge and the time for an application to set aside the decree passed ex parte shall run from the date of the decree. But this view was departed from in the later decisions of the Madras High Court and it was held that substituted service cannot be said to be due service where it did not achieve its object in bringing the claim of the plaintiff to the knowledge of the defendant. But in Vitta Venkatachalarn and another v. Sivapurm Subbaya (AIR 1928 Mad. 655), Srinivasa Ayyangar, J. In dissenting from the above mentioned case of K. B. Narasimha Chettiar v. K. P. Balakrishna Chettiar, held that substituted service of summons under the Civil Procedure Code is not due service for the purpose of Article 164 of the Limitation Act. In that connection he observed that :- --- it seems to me that the very expression "substituted service" clearly and conclusively indicates that it is not due service, the service that is due to the defendant or that is due according to the provisions of law for the purpose of service. For the purpose of Article 164 substituted service, therefore, could not possibly be regarded as due service."
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In that connection the learned Judge further observed that the implication seems to be clear that in cases where the summons is duly served on the defendant the presumption may well be that he has knowledge of the decree or at any rate if he does not get knowledge of the decree, it was ascribable only to some fault on his part or on the part of those near about him…
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