Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed ASHFAQ ALI SHAH VS Respondent: Syed AKHTAR ALI SHAH and others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: Syed ASHFAQ ALI SHAH vs Syed AKHTAR ALI SHAH and others Case No.: C. Rs. Nos.848 and 849 of 1988 Date of Judgment:1993-02-06 Reported As: 1993 MLD 889 Result: Revisions accepted
JUDGMENT
JUDGMENT ' This judgment will dispose of Civil Revisions Nos.848 and 849 of 1988 inasmuch as in both the cases, same questions of law and facts arise for determination. 2. Facts of the case out of which Civil Revision No,848/88 has arisen are that Hashim Ali Shah petitioner before this Court purchased the land measuring 13 kanals 5 marlas, situated in Mauza Dhalley, Thesil and District Gujranwala vide mutation of sale No, 6690, dated 17-4-1972 through Muhammad Idrces respondent No,2, general attorney of Syed Akhtar Ali Shah, respondent No,1. Appeal filed by respondent No,1 against the said mutation before the learned Controller was dismissed on 9-10-1973. On 15-11-1973, Akhtar Ali Shah, respondent No,1 filed a suit seeking a declaration to the effect that the mutation is based upon fraud and that neither the respondent No,2 is his attorney nor he has authorised him to sell the land-in dispute. After the service in the suit was complete, it was contested and evidence was partly recorded when on 28-4-1979, the learned counsel for respondent No,1 stated that he has no instructions and, therefore, the suit was dismissed for want of instructions/non-prosecution vide order, dated 28-4-1979. On 29-7-1979, the respondent No,1 applied for restoration of the suit through a time barred application without seeking condonation of the delay by appending application under section 5 of the Limitation Act alongwith the application referred to above. On this application a notice to the petitioner was directed to be issued on 24-9-1979. This notice was allegedly served on the brother of the petitioner Ishfaq Ali Shah although the petitioner was residing separately and at that time Ishfaq Ali Shah was not a male member of the petitioner's family for the purpose of effecting service upon him. On the basis of the aforementioned service as the petitioner did not appear on 24-9-1979 as he had no knowledge and the service report was fake and based upon collusion and fraud, ex parte
---
## Page 2
proceedings were ordered against the petitioner and ultimately vide an ex parte order, dated 3-4- 1980, the suit was restored. The learned Trial Court after restoration of the suit directed issuance of fresh summons to the petitioner to appear in the suit on 12-5-1980. The Prcess-Server did not allegedly approach the petitioner and made a false report to the effect that the petitioner has refused to accept service on the basis whereof the learned trial Court directed the substituted service of the petitioner in daily newspaper "Tohfa", Gujranwala vide order, dated 12-5-1980. The report of refusal to accept service is not evidenced by any witness and it has been reported that no body is ready to affix his signature as a witness. Statement of the process-server was also not recorded by the Trial Court while directing the substituted service and the provisions of Order 4, Rule 10-A, C.P.C. were also not observed by the trial Court and merely on the basis of the report of the process-server to the effect that the petitioner has refused service directed the substitued service of the petitioner. On the basis of the aforementioned substituted service due to absence of the petitioner on the date fixed, the trial Court proceeded againt the petitioner ex parte vide order, dated 25-2-1981 and ultimately vide ex parte judgment and decree, dated 5-3-1981, decreed the suit. 3. On acquiring knowledge of the ex parte decree, the petitioner moved the trial Court on 27-4-1982 for setting aside of the ex parte decree passed by the trial Court under the provisions of section 12(2), C.P.C. alleging therein that the petitioner was never served and the decree has been obtained by fraud. An application under section 5 of the Limitation Act seeking condonation of the delay in filing of the application has also been filed alongwith this petition. The petition has been contested b, respondent No,1. 4. The learned trial Court on the basis of the application filed and reply thereof, settled the following issues:--- (1) Whether the application is within time? (2) Whether there are sufficient reasons for setting aside ex parte decree, dated 5-3-1981? (3) Relief. ' After recording of evidence vide order, dated 3-6-1986, the trial Court dismissed the application on merits as well as being barred by time. Appeal filed against the aforementioned order of dismissal of the application filed by the petitioner was also dismissed by the learned Additional District Judge, Gujranwala vide order, dated 7-4-1988. Findings of the trial Court on both the issues have been upheld. In this civil revision the defendant-petitioner who was applicant before the trial Court for setting aside of the ex parte decree and appellant before the learned First Appellate Court has challenged the order of restoration of the suit dated 3-4-1980, ex parte judgment and decree, dated 5-3-1981 and the order, dated 3-6-1986 whereby the application for setting aside of the ex parte decree was refused by the trial Court and the order, dated 7-4-1988 whereby the learned First Appellate Court dismissed the appeal filed by the petitioner. 5. Facts of the case out of which Civil Revision No,849 of 1988 has arisen are that Syed Ishfaq Ali Shah purchased the land measuring 114 Kanals 16 Marlas from respondent No,1 through Muhammad Idrees respondent No,2 his general attorney vide mutation of sale No,3658 dated 29- 3-1972. This mutation was challenged by respondent No,1 by way of title suit. The suit was contested and was ultimately dismissed for want of instructions/non-prosecution by the learned Civil Judge vide judgment and decree, dated 28-4-1979. On the basis of an application moved by respondent No,1 after a period of about three months thereafter the same was restored ex parte which ex parte proceedings were taken on the basis of substituted service in daily "Tohfa", Gujranwala. Subsequent to the restoration of the suit a notice was directed to be issued to the petitioner for 12-5-1980. According to the petitioner no notice was issued to him and on the basis of an alleged false report of the Process-Server to the effect that the petitioner has refused to accept service, a substituted service was allegedly effected in newspaper "Tohfa" and the petitioner being absent on 25-2-1981,
---
## Page 3
the date fixed in the suit was proceeded ex parte and ultimately ex parte judgment and decree was passed against the petitioner. On coming to know the ex parte decree, the petitioner filed an application seeking setting aside of the aforementioned judgment and decree which was contested and was dismissed as being barred by time and also for the reasons that the petitioner has not been able to prove that there was a sufficient cause for being absent on the date of hearing. The order of the dismissal of the application was challenged by the petitioner in appeal which has been dismissed by the learned Addl. District Judge, Gujranwala vide order, dated 7-4- 1988. This civil revision has been filed against the above-said order, dated 7-4-1980 passed by the learned Additional District Judge and other orders/decree passed by the trial Court. 6. Syed Jamshed Ali Shah, Advocate, has appeared on behalf of petitioner. Mr. Karamat Nazir Bhandari, Advocate has appeared on behalf of respondent No,1. None has appeared on behalf of respondent No,2 although he has been served, therefore, he is proceeded against ex parte. None has appeared on behalf of other respondents. 7. Syed Jamshed Ali Shah, Advocate, learned counsel for the petitioner has raised the following contentions:--- (1) That the order of restoration of the suit dated 3-4-1980 is erroneous in law inasmuch as the same has been passed without effecting service upon the petitioner and as such being void abinitio is a nullity in the eyes of law. According to the learned counsel, service of petitioner could not have been effected through his brother and, therefore, substituted service as well could not have been effected on the basis of ' such a defective service report. Consequently, ex parte proceedings could not have been taken against the petitioner on the date fixed in the application for restoration of the suit and order of restoration of suit could not have been passed without giving an opportunity of being heard to the petitioner. (2) That the Process-Server did never approach the petitioner for effecting service upon him in the suit after the same had been restored and that the report of refusal to accept service is based upon fraud as the same has been manoeuvred in collusion with the Process-Server. Consequently on the basis of such a report, no order for effecting substituted service could have been passed by the trial Court as such the ex parte proceedings could not have been taken against the petitioner, hence, ex parte decree being nullity in the eyes of law is liable to be set aside. In support of his contentions learned counsel has placed reliance on the following cases: Mst. Afzal Begum and others v. Y.M.CA. through its General Secretary PLD 1979 SC 18, Central Government of Pakistan and another v. Khoedad Khan and 5 others. 1980 CLC 1462, Ch. Shah Muhammad v. Wajahat Ali and 6 others 1983 CLC 3013, Abdul Salam v. Mrs. Tahira Zaidi 1984 CLC 2855, Syed Muhammad Anwar Advocate v. Sh. Abdul Haq 1985 SCMR 1228 and Mst. Wazir Begum and 4 others v. Mst. Shamim Javaid and 4 others 1988 CLC 806. (3) That the application for setting aside of the ex parte decree is within governed by Article 181 of the Limitation Act and by Article 164 time inasmuch as the period of limitation in this case shall be of the Act, firstly for the reasons that the petitioner was never served in the suit and secondly for the reasons that the ex parte decree has been passed on the basis of non-appearance of the petitioner after he was served to appear through substituted service during the pendency of a suit which had earlier been set down for evidence and which stage stood revived due to the order of restoration of the suit whereafter the notice was issued to the petitioner to appear in the suit. Reliance in this case placed by the learned counsel is on the cases of M/s. Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and M/s. Rehman. Weaving Factory, Bahawalnagar v. Punjab Small Industries Corporation, Lahore PLD 1981 SC 21; Syed Muhammad Anwar Advocate v. Sh. Abdul Haq 1985 SCMR 1228. 8. Elaborating his argument, learned counsel for the petitioner has taken me through the record of the case and evidence recorded by the trial Court.
---
## Page 4
9. As against the above arguments addressed by the learned counsel for the petitioner, Mr. Karamat Nazir Bhandari, Advocate, learned counsel for respondent No,1 has raised the following contentions:-- (1) That the application filed by the petitioner is under section 12(2), C.P.C. and against the dismissal of such application, no appeal is competent, therefore, the order passed by the lower Appellate Court shall be deemed to have been passed in exercise of its Tevisional jurisdiction and as such this revision petition shall be deemed to be a second petition and as such is not maintainable; (2) That Muhammad Idrees respondent No,2 who is alleged to have sold the property is a general attorney has not challenged the impugned order as well as the impugned decree, therefore, the petition is liable to be dismissed inasmuch as no relief can be granted to the petitioner in view of decree being intact as against the respondent No,2. (3) That the learned two Courts below have rightly dismissed the applications filed by the petitioner as being barred by time and also for the reasons that the petitioner has not been able to prove that there was any sufficient cause for his non-appearance on which date he was proceeded against ex parte. Learned counsel contends that the petitioner is a resident of Gujranwala and as he was served through citation in the press in a local newspaper, it shall be presumed that he was properly served for the date on which he remained absent and, hence, there is no illegality in the order of the learned trial Court whereby the petitioner was proceeded against ex parte and on the basis of evidence an ex parte decree was subsequently passed against him. There is neither any ground for condonation of delay nor any sufficient cause for setting aside of ex parte decree and as there is a concurrent finding of fact to the above effect, this Court has no jurisdiction to interfere there with in the light of the law laid down in cases of Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and learned counsel for the petitioner has controverted the above and has reiterated the arguments addressed earlier. 10. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Order of restoration of the suit was not challenged within limitation and even otherwise there does not appear to be any legal flaw in the order directing the restoration of the suit passed by the trial Court. Even the learned counsel for the petitioner after arguing this point at some length has not seriously pressed this objection and as per principle that the law favours adjudication on merits and not on technical knock-out, I do not consider it proper to interfere in exercise of my revisional jurisdiction with the order of restoration of the suit. Resultantly, argument of the learned counsel for the petitioner that the suit had not been validly restored is repelled and the order dated 3-4-1980 directing restoration of the suit is upheld. 11. In order to appreciate the arguments addressed by the learned counsel for the parties and to detemine the questions involved in this case, it is necessary to reproduce the relevant provisions of the Code of Civil Procedure as well as the Limitation Act which are as follows: Order 5, rule 10. "Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. High Court Amendment: Lahore: Add Proviso to R.10:- 'Provided that in any case, if the plaintiff so wishes, the Court may, serve the summons in the first instance by registered post (acknowledgement due), instead of in the mode of service laid down in this rule." Rule 10-A.---(1) Simultaneously with the issue of summons under rule 9, there shall be sent unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgment due, another copy of the summons signed and sealed in the manner provided in rule 10.
---
## Page 5
(2) An acknowledgement purporting to be signed by the defendant of the receipt of the registered cummunication or an endorsement by a postal employee that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service by summons. Rule 12.---Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 15.---Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. Rule 16.---Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Rule 18.---The serving officer shall, in, all cases in which the summons has been served under rule 16, endorse or annex or cause to be endorsed or annexed, to the original summons, a return stating the time when and the the manner in which the summons was served, and the name and the address of the person (if any) identifying the person served and witnessing the delivery Rule 19.---Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in. the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 20.---(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy therof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service is substituted by order or-the Court, the Court shall fix such time for the appearance of the defendant as the case may require. Order 9. Rule 7.---Where the Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. Rule 13.---(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 nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any or 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
---
## Page 6
defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. (ii) Rule 13 shall be re-numbered as sub-rule (1) of that rule and, after sub-rule (1) re-numbered as aforementioned, the following new sub-rule shall be added namely:-- (2) The provisions of section 5 of the Limitation Act, 1908 (IX of1908), shall apply to applications under sub-rule (1)." Order 41, rule 33.---The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the appellate Court shall not make any order under section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. {{TABLE}} LIMITATION ACT: (Article 164) By a defendant Thirty days The date of the decree for an order to or where the summons set aside a was not duly served decree passed when the applicant has ex parte knowledge of the decree Article 181: Application for Three years. When the right to apply which no accrues. period of Limi- tation is provided else where in this Schedule or by section 48 of Code of Civil Procedure, 1908. {{TABLE}} 12. A perusal of the aforementioned provisions of the Code of Civil Procedure clearly shows that summon is ordinarily to be served on the defendant personally. It can also be served through a male member of the family, if the said member is residing with the defendant and the defendant cannot be found nor is there any agent empowered to accept service on his behalf. It is further established as per aforementioned rules that in case where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, an acknowledgment in writing is to be obtained on the original summons. While proceeding under rule 17, the Process-Server is bound to indicate in his report that he has affixed a copy of the summons on the conspicuous part of the house where the defendant resides, the circumstances under which he has done it and the name and the address of the persons who identified the house in whose presence the copy was so affixed alongwith time. As per rule 19, when a summons is returned under rule 17, the Court is to examine the serving officer on oath touching his proceeding and after holding a further inquiry, if necessary, is to pass an order as to whether summons has been duly served or is to direct fresh service. While proceeding under rule 20 before passing of an order of substituted service, the Court is bound to record his satisfaction to the effect that there is a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service and thereafter the Court is to order the service of summons through affixture in terms of rule 20. As per Order 9, rule 6 in case the defendant does not appear on the date fixed in the suit, in spite of summons having been duly served upon him, he can be proceeded against ex parte and even an ex parte decree can be passed against him. But if it is proved that summons was not duly served, a direction is to be issued to issue a second summons for service of the defendant. As per provisions of Order 41, rule 33, C.P.C., the Appellate or Revisional Court has the jurisdiction to pass an order or a
---
## Page 7
decree as the case may require in spite of the fact that any of the parties to the suit has not challenged the impugned order or the decree. 13. As per Article 164 of the Limitation Act, the period of limitation for filing of an application for setting aside of ex parte decree is thirty days in cases where the summons is duly served w.e.f. the date of decree and in cases where the summons is not duly served w.e.f. the date from the acquisition of the knoweldge of the decree. The word "summons" used in Article 164 of the Limitation Act is quite conspicuous. It means summons for first appearance in the suit and it has different connotation vis-a-vis, its form and object than the notice issued to the defendant during the pendency of the suit for appearance, adjourned or postponed dates and period of limitation to challenge ex parte decrees passed in such like cases, therefore, is governed by the provisions of section 181 of the Limitation Act which is a residuaiy Article and which provides three years limitation with effect from the date of accrual of cause of action which shall be the passing of the date of ex parte decree and not by Acticle 164 of the Act. 14. In the case in hand, after the suit was restored, learned trial Court directed the issuance of notices to the defendant for 12-5-1980. The process-server made a report on the notice that the petitioner has refused to accept service. This report does not contain the names and signatures of the persons who indentified the house wherein the petitioner resided and refused to accept service. It is rather mentioned in the report that nobody is ready to affix signature as a witness. The trial Court on the basis of this report which is verified on oath by the proceess-server instead of directing the issuance of fresh summons to the defendant for effecting personal service upon him, without recording the statement of the process-server and without holding any inquiry, directed service of the petitioner through citation instead of affixture on the residential house of the petitioner. The citation has also been made in daily `Tohfa' which is seldom heard of and appears to be a local newspaper. Although in cases of verified reports of refusal of acceptance of service which are duly made strictly in accordance with provisions of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.