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Petitioner: USMAN PUNJWANI VS Respondent: AYAZ ALI and 4 othersDefendants
Court Name: Sindh High Court Judge(s): Munib Akhtar Title: USMAN PUNJWANI vs AYAZ ALI and 4 othersDefendants Case No.: Suit No,801 of 2005 and C.M.As. Nos.70, 71, 148 & 149 of 2011 Date of Judgment:2011-11-18 Reported As: PLD 2012 Sindh 78 Result: Application allowed
JUDGMENT
JUDGMENT ' MUNIB AKHTAR, J: This suit was disposed of by means of ex parte judgment and decree dated 25- 3-2008. The present four applications were filed thereafter and heard together, of which, for reasons that will become apparent, only two need to be considered in detail. These are C.M.A. 70 of 2011 and C.M.A. 148 of 2011, both filed under Order IX, Rule 13, C.P.C. Seeking 'the setting aside of the ex parte decree and restoration of the suit for consideration and disposal on merits in accordance with law. The first mentioned application has been filed by the defendant No,1 whereas the second application has been filed by the defendants Nos.4 and 5. 2. The suit was filed on or about 8-12-2004 but was numbered sometime later as above for reasons that are not at present relevant. Originally there were three defendants in the suit, being the defendant No,1 and two official defendants, who were also declared ex parte, but their position need not be considered insofar as the present applications are concerned. The suit was for specific performance, declaration and injunction in respect of the property described in para-1 of the plaint. That property ("suit property"), according to the plaintiff, belonged to the defendant No,1, who by means of an agreement dated 17-3-1996, had agreed to sell the same to the plaintiff. According to the plaintiff, the defendant No,1 failed to abide by his end of the bargain although the former had made substantial payment of the sale consideration. Accordingly, the plaintiff was constrained to file the present suit. Subsequently (in a manner more fully described below), the defendants Nos.4 and 5 were added as parties to the ' suit for the reason that according to the plaintiff, the defendant No,1 was attempting to sell off the suit property to them. All three of the contesting defendants were declared ex parte in terms shortly to be described and thereafter the suit was fixed for final disposal and was disposed of by the impugned judgment and decree.
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3. Learned counsel for defendant No,1, in support of his C.M.A. 70 of 2011, drew attention to the diary sheet dated 15-9-2005. He submitted that according to the order made on that date, the summons on the main suit that had been issued to the defendant Nos. 1 to 3 (who at that time were the only defendants in the suit) were shown as having been returned served on the defendant Nos.2 and 3 but un-served on the defendant No,1. Notice on certain miscellaneous applications had also been issued with the same return date as the main summons, and on the notice, the, bailiff's report showed that it had been served on all three of the defendants. Learned counsel submitted that this was an obvious and glaring contradiction since the defendant No,1 could hardly be 'served and un-served at one and the same time. The diary sheet also noted that a vakalatnama had been filed on behalf of the defendant No,1 by Mr.Javed Malik, Advocate Learned counsel submitted that the defendant No,1 did not at any time appoint Mr.Javed Malik as his lawyer nor did he sign any vakalatnama in this regard. Service was held good on the defendant No,1 on 15- 9-2005 on the foregoing basis. However learned counsel submitted that that order was incorrect. Although notice was to be served on the defendant No,1 through all ordinary modes, the record showed that, service had only been effected by means of the bailiff. Learned counsel took serious issue with the reports of the bailiff and submitted that even in terms thereof, the defendant No,1 had not been duly. Served as required by law. I will later on consider in detail, the reports of the bailiff. Learned counsel further submitted that the order sheet clearly showed that Mr. Javed Malik appeared only once in the suit and that no written statement was filed on behalf of the defendant No,1 . It was in these circumstances that the defendant No,1 was ultimately declared ex parte on 2- 10-2006. Learned counsel submitted that the defendant No,1 remained unaware of the filing of the suit at all times and it was only on or about 29-12-2010 that the proceedings came to his knowledge when he was summoned to the police station on the basis of a complaint by the plaintiff that he had purchased the suit property and had a decree in his favour, but that execution of tie decree was being unlawfully obstructed or delayed by the defendant No,1 and the defendants Nos.4 and 5. Learned counsel submitted that in these circumstances, the ex parte judgment and decree against the defendant No,1 merited being set aside. 4. Learned counsel for the plaintiff strongly opposed the application moved by defendant No, 1. He submitted that the said defendant had been properly served in the matter and had engaged the lawyer who had filed the vakalatnama on his behalf. Learned counsel submitted that a comparison of the signature of the defendant No,1 on his present affidavit as also the vakalatnarna now given to learned counsel acting on his behalf, with his signature on the vakalatnama of Mr. Javed Malik and also his signature of acknowledgment on the copy of the notice served upon him by the bailiff were all identical and this could be seen even on a bare perusal of the relevant documents. Learned counsel submitted that there could therefore be no doubt that the .Defendant No,1 had been duly served in the matter and that if he or learned counsel appearing on his behalf thereafter remained absent, that was their own negligence or reckless disregard of court proceedings for which they had to face the consequences. Learned counsel submitted that the defendant No,l's application merited dismissal. 5. Learned counsel appearing for defendants Nos.4 and 5, in support of his C.M.A. 148 of 2011, referred to the detailed statement of facts made in the affidavit of the defendant No,4 in support of the said application, starting from para. 11 onwards. It is not necessary to refer to each and every factual averment made by the defendant No,4 in this regard. It is sufficient to note that a vakalatnama was filed on behalf of the defendants Nos. 4 and 5 on 15-9-2005 by Mr. Abid Zuberi Advocate. (It is to be noted that this was even before the said defendants had been impleaded in the suit.) This vakalatnama appears to bear the signatures of the two defendants. Learned counsel submitted that in fact the defendants Nos.4 and 5 had never engaged Mr. Abid Zuberi as their lawyer and that they had never visited his office. Learned counsel submitted that subsequently, Mr.
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Abid Zuberi filed an application seeking his discharge from the matter, and that application was eventually allowed on 3-12-2007. Learned counsel referred in particular to the notice required to be sent in such circumstances by the advocate, which was appended to Mr. Abid Zuberi's application, and submitted that the notice had been sent to one Mr. Rasool Bux who apparently had approached and engaged Mr. Abid Zuberi on behalf of the defendants Nos.4 and 5. Learned counsel submitted that this was sufficient in and of itself to establish that the defendants had never personally and directly contacted or engaged Mr. Abid Zuberi. He stated on instructions that the defendants had no connection at all with the aforesaid Mr. Rasool Bux. It appears that the plaintiff had earlier, on the basis of a public notice that had appeared in the press indicating that the defendants Nos.4 and 5 had agreed to purchase the suit property from the defendant No,1, moved an application seeking to implead them formally as defendants in the suit. This application was allowed on 2-10-2006 and the defendants Nos.4 and 5 added to the array of defendants. Learned counsel submitted that as per the title of the amended plaint, two addresses were given for the defendant Nos. 4 and 5. One was the address of the advocate whom they had engaged for purposes of the public notice. The second was an entirely different address, of some entity named "Green Field Enterprises". It further appears that even before the discharge of Mr.Abid Zuberi's vakalatnama, the plaintiff had filed an application under Order V, rule 20, C.P.C. For substituted service on the defendants Nos.4 and 5. However, this application remained pending and no .Order was made thereon. Thereafter, once Mr.Abid Zuberi stood discharged, notices were ordered by the Court to be issued directly to the defendants Nos.4 and 5. These notices were issued for service on the defendants at the two addresses given in the title of the plaint, as noted above. What happened thereafter, as per the defendants' case, is stated in p.Aras-33 and 34 of the affidavit filed by defendant No,4. These paras are as follows: "33. Fresh notices were issued for service on both of us C/o M/s. Rizvi & Rizvi Company and Greenfield Enterprises, strangely given to Mr. Shafiq bailiff. According to his report dated 01 February, 2008, he made attempts on 10 December, 2007 and 17 January, 2008 to serve the notice on us on the addresses given but no responsible person was present and he went again with one Ibrahim claiming to be the representative of the plaintiff who pointed out the place of defendants Nos.4 and 5 and claiming to one Ramesh, our employee informed him that we were present and were busy in a meeting. After contacting us he accepted the copies and signed the same in token of such acceptance which was also signed by the said representative of the plaintiff. In so far as the service M/s. Rizvi & Rizvi company was concerned, it was returned unnerved. 34. It is submitted that there is no mention of any business card in the support but our business card has been attached with the copy of the notice. The matter came up in Court on 11 February 2008 and on the basis of the said report of the bailiff the honourable Court was pleased to hold the service good and marked our absence. It was further ordered, defendants Nos.4 and 5 is their defence stand struck off and the case will proceed further."' ' Learned counsel submitted that in these circumstances, it could not be said that the defendants Nos. 4 and 5 had been duly served and that therefore, the ex parte judgment and decree against them also merited being set aside. The defendant No,4 also averred in his affidavit that the suit property had been acquired by them from the defendant No,1 and that they were in possession thereof and that, like the defendant No,1, they only became aware of the court proceedings when a complaint was made by the plaintiff to the police station concerned and the defendant No_4 was, summoned to answer the same. 6. Learned counsel for the plaintiff strongly opposed the application moved by the defendants No,4 and 5. He submitted that they were, and had been, fully aware at all material times of the present proceedings and had engaged counsel in this regard, i,e,, Mr. Abid Zuberi. Learned counsel contended that the order sheet showed that Mr. Abid Zuberi appeared on behalf of the defendants
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on a number of dates and fully participated in the proceedings. In such circumstances, he contended that it was futile for the defendants Nos. 4 and 5 to pretend that they had not been served in the matter and remained unaware of the court proceedings. As in the case of the defendant No,1, learned counsel contended that the signatures of the defendants' Nos.4 and 5 on all the relevant documents were the same, which completely refuted and demolished the averments made in the affidavit now filed by the defendant No,4. He submitted that this application also merited dismissal. 7. I have heard learned counsel as above and considered the record with their assistance and also the case-law relied upon by learned counsel for the plaintiff. The provisions of Order IX, Rule 13, C.P.C. Are of course well known, but it would still be convenient to reproduce sub-rule (1), which is as follows: "(1) In any case in which a decree is passed ex parte against a defendant he 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 aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: ' Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: ' Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reasons to be recorded; that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim." ' As presently relevant, the following points need to be kept in mind regarding sub-rule (1). Firstly, the sub-rule envisages two grounds on which the ex parte decree may be set aside. One is that the summons was not duly served on the defendant, and the other is that the defendant was prevented for sufficient cause from appearing before the court when the suit was called on for hearing. In the present case, both the defendant No,1 and the defendants Nos.4 and 5 place reliance only on the first ground, namely that the summons was not duly served. Insofar as this ground is concerned, it must be read with the second proviso to sub-rule (1). This states that an ex parte decree shall not be set aside merely on the ground of an irregularity in the service of summons, if the court is satisfied for reasons that must be recorded that the defendant had knowledge of the date of hearing in sufficient time to enable him to appear before the court on the relevant date. Secondly, the first proviso to sub-rule (1) provides that if the decree is of such a nature that it cannot be set aside against only one defendant, then it may be set aside against all or any of the other defendants as well. Thus, the effect of the first proviso is that if (say) one of the defendants is not duly served, whereas other defendants have been duly served, and the suit is decreed ex parte against all the defendants, then if the decree is being set aside against the first defendant, and is of such a nature that it cannot be set aside against him alone, then it must also be set aside against the other defendants as well. In my view, the nature of the decree in the present suit is such that if at all it is to be set aside against either the defendant No,1 or the defendants Nos. 4 and 5, then it must be set aside against them all: Therefore, if any one of the two applications aforementioned (Le., C.M.A. 70 of 2011 or, C.M.A. 148 of 2011) is to be allowed, then the other application must also be allowed even if that application, standing alone, would otherwise have been dismissed. 8. The purpose of, and objective sought to be achieved by, the law in insisting that summons be "duly served" is of course obvious and well known. Leaving aside exceptional situations such as summary chapter suits, it is absolutely fundamental to the law that a defendant must have the
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right to defend himself against the claim put forward by the plaintiff. The purpose and objective of summons is to inform the defendant of the proceedings so that he can appear before the court and be heard on any defense that he may wish to put up. At the same time however, a defendant cannot be allowed to frustrate or delay a legitimate claim by staying away from court proceedings. It is for this reason that the law permits the court to decree a suit ex parte. It will be -seen that there is a certain tension between these two requirements, i,e, of the defendant being able to exercise his fundamental right of audience before the court, and a legitimate claim of the plaintiff not being defeated by the simple expedient of the defendant staying away from the court proceedings. The balance struck by the law between these competing considerations is to insist that the summons be "duly served". Once the summons has been duly served, the court can safely and confidently proceed, if the . Defendant does not show up, to make an ex parte decree if the plaintiff's claim is otherwise justified and merits the decree. However, the emphasis is on the summons being "duly" served. As this word connotes and indicates, the summons must be served i,e, the information of the suit having been filed be conveyed in the particular and specific manner prescribed by law. The reason is that if the detailed rules that have been carefully and meticulously laid down in this regard are followed, it can hardly ever be open to the defendant to claim that he did not have knowledge of the court proceedings. (The, situation in substituted service is of course otherwise, but that is taken care of by means of an appropriate deeming clause.) The standard for summons being "duly served" is deliberately kept high, precisely because the consequences for the defendant can be so drastic. Once it is shown that the summons was ,"duly served", an ex parte decree can follow, and then execution can be levied against the defendant, who is now of course, a judgment-debtor. E Thus, a defendant "duly served" stays away from the proceedings -at his own peril. It is for this reason that sub-rule (1) of Rule 13 provides that if the summons has not been "duly served", the ex parte decree may be set aside. Now, the rules that must be complied with to ensure that the summons has been "duly served" are quite technical and, it could even be said, to a certain degree somewhat artificial. While this is so for the reasons already stated, this could, on occasion, lead to a situation where, while the defendant was served for all practical purposes, he was, technically, not "duly" served and the ex parte decree therefore had to be set aside. The rigors of the requirement that the summons be "duly served" were therefore softened to some extent in 1972 by the addition of the second proviso to sub-rule (1). This now requires the court to disregard any irregularity in the service of the summons, but this can only be done if the case comes within the carefully prescribed parameters of the second proviso. These require the court to be satisfied that the defendant did have knowledge of the relevant date of hearing and such knowledge had been acquired in sufficient time to enable him to appear before the court. The court must record its reasons for coming to this C conclusion. It is also to be noted that the second proviso only allows the court to disregard an "irregularity" in the service of the summons. An absence of service cannot be ignored. In other words, if the summons has not been served at all, the second proviso does not, and cannot, take effect. Furthermore, and quite obviously, the second proviso cannot apply if the summons is not issued at all, since there is then (by definition) a complete absence of service, and in such a situation, the question whether or not there was any "irregularity" in the service cannot arise. With these points in mind, I now turn to consider the actual situation of the defendant No,1 on the one hand and the defendants Nos.4 and 5 on the other. I first take up the case of the defendant No, 1. 9. As noted above, the diary sheet of 15-9-2005 seems to note that the defendant No,1 was both served and un-served at the same time, and this does appear, on the face of it, to be an anomaly. It appears that the summons in the suit was issued on or about 11-6-2005, with a return date of 15- 9-2005. As noted in the diary sheet, the defendant No,1 was not served on this summons. The bailiffs report (insofar as it is relevant for the defendant No,1) was as follows (in translation):
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"I, Mir Mohammad Bailiff, do hereby state on oath that on 15-6-2005, I went at the address of defendant No,1, where I met a lady from whom I made an inquiry about the defendant No,1 but she told that the defendant No,1 was earlier residing here but now he has sold the house and gone away and now one Shahnawaz resides in the house. Therefore, I return the unserved notice upon defendant No,1 ." ' It was on this basis that the diary entry noted that the defendant No,1 had not been served. Now it also appears to be the case that on or about 15-6-2005 the plaintiff had moved three C.M.As., which were supported by an urgent application. One of these applications was a stay application, the second, an application for amendment of the plaint and the third an application seeking to join the defendants Nos.4 and 5 as parties to the suit. The urgent application was granted and it was ordered that notices be issued on the three applications through all modes including courier and pasting. Notices on these applications were issued. On 22-6-2005 with the same return date as the summons in the suit, i,e, 15-9-2005. On these notices, the bailiff, as insofar as presently relevant, made the following report (in translation): "I, Shafiqullah Bailiff, do hereby state on oath that on 26-7-2005, I went at the address mentioned at Serial No,, 1 and knocked the door where a lady said that he does not reside there and chowkidar said that he is at Faiza Jewelers, Abdul Haq Terrace, ,where I went and got received the notice to Mr. Ayaz Ali and got signatures on the original copy." ' The copy of the notice returned by the bailiff bears a signature which appears to be that of the defendant No,1 and which is dated 26-7-2005. It is this service which is noted in the diary sheet of 15-9-2005. Thus the apparent contradiction in the diary sheet entry can be explained by keeping in mind that the entry is referring to two separate and distinct exercises, one being in relation to the summons issued on the main suit whereas the other relates to the C.M.As that were subsequently filed by the plaintiff. The dates on which the summons on the one hand and the notice on the other were issued were" different, although of course the return date was the same in both cases. It is for this reason that the defendant No,1 appears to have been simultaneously served and un-served. However, this apparent contradiction is easily resolved once the details .Of the matter are kept in mind. 10. The other point to be noted with regard to defendant No, 1 is the vakalatnama of Mr. Javed Malik that was filed on 16-9-2005. I have compared the signatures of the defendant No,1 on this vakalatnama, on the copy of the notice stated to be served on him in respect of the C.M.As., on the vakalatnama of learned counsel now appearing for him, and on the affidavits sworn by the defendant No, 1 in support of his two applications presently under consideration, i,e, C.M.A. 70 of 2011 and C.M.A. 71 of 2011. In my view, these signatures all appear to be the same and it is not possible to distinguish any discrepancy or difference between them. The position that therefore emerges is that the defendant No,1 was un-served on the summons in the main suit, but was served on the notice issued in respect of certain C.M.As. Subsequently filed, and an advocate did file a vakalatnama on his behalf on or about 16-9-2005. ' The, question therefore -is whether these facts, when taken together, constitute due service on the defendant No,1 within the meaning of sub-rule (1) of Rule 13 read with the second proviso thereof. After having carefully considered the matter, I have come to the conclusion that these facts taken together do constitute due service on the defendant No, 1 in terms of the aforesaid provisions. It is no doubt true that the summons in the suit was not served, and the defendant No, 1 was declared ex parte in the suit. However, the notice on the C.M.As. Does appear to have been served on him. If this service had taken place after the return date on the summons in the suit, then perhaps it could be argued that such service should not be *taken into consideration at all. However, both the summons in the suit, and the notice on the C.M.As. Had the same return date. Furthermore, the dates on which the bailiff went to serve the summons on the one hand, and the notice on the other,
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are consistent with the dates of their issuance and the return date. In these circumstances, I am of the view that the (attempted) service of the summons in the suit, and the (successful) service of the notice on the C.M.As. Should be taken together and although on this basis, the service was certainly "irregular", the matter comes within the scope of the…
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