P L D 1993 Karachi 676 (PLP)

(a) A decree directing the defendant to execute the conveyance deed in favour of the plaintiff after obtaining relevant documents necessary for registration purposes in the event of the defendant's failure to do so directing the. Nazir of this Honourable Court to complete the transaction in 0 respects. (b) A decree perpetually restraining the defendant from disposing of and dealing with the said property in any manner. (c) A decree perpetually restraining. the defendant from disposing of and dealing with the said property in any manner and parting with the possession thereof. (c-1) Declaring that sale-deed executed by the defendant No.1 in favour of the defendant No.2 in respect of the property bearing No.1/10, Block T, Drigh Colony, Karachi be illegal, null and void and of no legal effect. (c-2)Declaring that the Plaintiff is a legal purchaser of the property of the suit. (d) Costs of the suits; and (e) Any other relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case." It may be stated here that respondent No.1 , had, also filed a suit bearing No.1139 of 1982 against Abdul Baqi husband and attorney of the applicant, in respect of another property situated in Drigh Colony, Karachi. This suit as well as the said execution application were fixed on 21-1-1983 before the same Judge when Mr. Asghar Hussain, Advocate for Abdul Baqi by sheer chance came to know of the ex parte decree against the applicant. He undertook to file his power and objections on behalf of the applicant and the execution proceedings were adjourned. It is also pertinent to note that 'led an application under on 30-1-1982 about a year back respondent No.1 had filed an application under Order 1, Rule 10, C.P.C. in the said Rent, Case No.4053/7a filed by the applicant against P.I.A. In the said application she claimed to be the owner of the property and referred to a suit for specific performance of contract filed by her against the deceased but no details such as number of the suit, name of the Court, date of hearing etc. were given by her till the applicant came to know of the ex parte decree through her Advocate. However, on coming to know about the ex parte, decree, she filed two applicants both, dated 14-3-1983 one under Order IX Rule 13, C.P.C. and the other under section 5 of Limitation Act through her attorney which were dismissed by the learned Vth Senior Civil Judge, Karachi on 30-1-1984. Similarly M/s. the National Bank of Pakistan, respondent No.2 herein, who are the mortgagees of the property 'in question, had also filed an application under section 12(2), C.P.C. for setting aside the ex parte decree on the ground of fraud and mispresentation, which too was dismissed on 30-1-1984, on the ground that the Court had become functus officio, and therefore the application was not maintainable. However, the applicant filed an appeal against the order, dated 30-1-1984 which was also dismissed by the learned Additional District Judge on the ground that the application under Order IX, Rule 13 filed by the applicant was barred by time. It is an admitted position that late Mst. Amina Khatoon had rented out the disputed property to P.I.A. oil 1-4-1973 for the use of the' respondent's husband, namely, Capt. Musaver Ahmed who was an employee of P.I.A. After the transfer of property on 17-6-1976 the P.I.A. accepted the applicant as its landlady although it contested the said Rent Case No. 4053/76 filed by her through her attorney who was residing at 73, Block-A, Azizabad, Federal B Area, Karachi. It is significant to note that on 30-1-1982 the respondent No.1 who is the wife of the Capt. Musaver Ahmed moved the application under Order 1, Rule 10, C.P.C. in reply to which the applicant riled her counter affidavit giving full name and address of her attorney. No attempt was made by the respondent No.1 to serve the applicant in the said suit through her attorney. This fact by itself clearly demonstrates fraudulent concealment on the part of respondent No.1 in order to obtain ex parte decree through substituted service. A Court when seized of a matter cannot allow itself to be used as an instrument of fraud so apparent irrespective of the plea of limitation and may invoke its inherent jurisdiction under section 151, C.P.C. to set aside a decree fraudulently obtained by a plaintiff. Although I have held that the decree is liable to be set aside as aforesaid, the argument advanced by Mr. Mumtaz Ahmed Shaikh, learned counsel for respondent No.1 that the applicant's application under Order 9, Rule 13, C.P.C. is hopelessly time-barred by 24 days under Article 164 of Limitation Act even on the basis of date of knowledge may also be examined here. It was vigorously urged by him that - each day's delay has to be satisfactorily explained by the applicant. In this regard learned counsel placed reliance on PLD 1978 Kar. 818, PLD 1980 Lahore 181; P L D 1979 Lahore 332; PLD 1979 SC 18 and 1982 CLC

881. In the present case, the date of knowledge of the ex parte decree by the Advocate cannot be deemed to be the date of knowledge of the applicant. Her case is that Mr. Asghar Hussam, Advocate came to know of the ex parte decree against her by sheer incident on which date he had no instructions from her. An undertaking given by an Advocate without instructions from his client is of no consequence and the date of his undertaking cannot be taken as the date of knowledge of the ex parte decree of his client within the meaning of Article 164 of Limitation Act. The new power of attorney sent by the applicant from Saudi Arabia reveals that its stamp paper was purchased by Mr. Asgliar Hussain, Advocate at Karachi on 31-1-1983 which could have reduced the period to fourteen days. It was executed first by the applicant on 8-34983, at Madina and then at the Pakistan Embassy on 10-3-1983. Further time must have been spent in sending it to and from Saudi Arabia which perhaps was explainable but remained unexplainable. The applicant has failed to satisfactorily account for each day's delay, therefore, she is not entitled to extension of time wider section 5 of Limitation Act. Now, what next is to be examined is whether there was due compliance of provisions of Order 5, Rule 20, C.P.C. by the learned trial Court before it passed orders for substituted service in the suit and in execution proceedings. Substituted service is - not the ordinary way of service on a defendant. The Court has to be satisfied that there is reason to believe that the C 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 respondent No. 1' in both of her applications under Order 5, Rule 20, C.P.C. had prayed that the applicant may be served by publication of summons/notice . in the suit/execution application in a newspaper and by pasting a copy of the summons/notice on the main door of the premises in question and also by placing the same on the Court Notice Board. The order passed in the suit is that the applicant should be served by publication without reference to the pasting of summons at Court Notice Board and last known address of the applicant, where as" the order in execution proceedings was that notice should appear in an approved daily and a copy be affixed at the 'disputed premises' i.e. the suit property which was in possession of respondent No.l. It will be useful here to - reproduce Order 5, Rule 20(i), C.P.C. as under:

"Substituted service.

(l) 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 thereof 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." it will thus be seen that there was clear violation of express provisions on contained in Order 5, Rule 20, C.P.C. requiring affixation of the summons, n the Court Notice Board and also on the last known address of the defendant. Reference here may be made to Muhammad Nasir v. Sadiq Muhammad 1982 CLC 856 and Mirza Farooq Beg v. Muhammad Kashif Kamal Siddiqui 1987 CLC 516 in which it was held by the learned Judges of this Court that where summons were not affixed at Court Notice Board or at outer door of the premises held by the defendant, service of summons was not proper. In my humble view the expression "or in such other manner as the Court thinks fit" used under Order 5, Rule 20(i) although empowers the Court to get summons served by substituted service in some other manner as it may deem fit, would not exclude or substitute the above two mandatory modes of substituted service. The word 'shall' used in Order 5, Rule 20(i), C.P.C. when read with the expression 'or in such other manner as the Court thinks fit' leaves no- doubt that the word 'or' used therein should be read as 'and' but the said expression would be relevant only when other modes of service have also been ordered by the Court. The ex parte decree is, therefore, liable to be set aside under section 115, C.P.C. as there was failure to exercise jurisdiction so also illegal exercise of jurisdiction by the learned Civil Judge,. The learned Civil Judge had also failed to apply his mind to the facts of the case before passing the order for substituted service as the bailiffs report negates the so-called allegation of the respondent No.1 that the applicant was avoiding service of summons. In 1982 CLC 856, a learned Judge this Court Mr. Justice Ajmal Mian (as he then was) had held that 'Before acting the substituted service by publication, it is incumbent upon the Court apply its mind to the facts of the case and to come to the conclusion that in the of the best efforts on the part of the plaintiff, the defendant could not be served inter alia for the reason that he has been avoiding the service with the object of obstructing the disposal of the suit". Next argument advanced by Mr. G.H. Abbasi learned counsel for the applicant was that the impugned judgment/decree as a whole is void, ab initio, without jurisdiction, illegal and inoperative as the suit was filed by the respondent No.1 against a dead person, namely, Mst. Amina Khatoon. The applicant derived her title to the property from the deceased as a result of which all proceedings emanating from or following the proceedings against the -ceased leading to ex parte decree against the former are also void. In support of his contention Mr. G.H. Abbasi learned counsel for the applicant, first referred to Yousuf Ali v. Muhammad Aslain Zia and 2 others, LD 1958 Supreme Court 104, inwhich the Honourable Supreme Court held: "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fail to the ground because such orders have as little legal foundation as the void order on which they are founded." Next reference was made by Mr. G.H. Abbasi Advocate to Mehr Muhammad v. Deputy Commissioner, Settlement, PLD 1980 SC 97, in which it ms held by the Supreme Court that a' petition filed against a dead person was competent and Supreme Court's conclusion recorded on basis of merit has ) significance being nullity in law. Lastly reference was made to Rasheed limed v. The State PLD 1972 Supreme Court 271 in which the Supreme court had held "if a mandatory condition for the exercise of jurisdiction before Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally Hers from illegality and is without jurisdiction". Learned counsel for respondent No.1, Mr. Mumtaz Ahmed Shaikh, candidly conceded that the suit in fact was riled against a dead person but stated that the decree is enforceable against the applicant. His further contention is that no revision would lie to the H~ Court as section 18 of Civil Courts Ordinance, 1962, provides appeal to the High Court in case the valuation of the suit exceeds Rs. 50,

000. Admittedly this objection was not raised by the respondent No.1 in appeal before the learned Additional District Judge, she rather submitted to his jurisdiction, hence she cannot be allowed to agitate it now. What further emerges from the foregoing discussions is that legal proceeding against a dead person is a nullity in law and without jurisdiction. The present suit is also against a dead person and a decree under it as such is a nullity in law and without jurisdiction. Similarly the transfer of the disputed property by the deceased to the applicant cannot be questioned and any finding thereon is of no legal effect. The sale-deed executed and registered in favour of respondent No.1 under the decree of the Court is also of no consequence and is hereby cancelled. As a result, the impugned judgment and decree of trial Court, dated 30-5-1982 and the judgment of the Appellate Court, dated 30-1-1984 are set aside with costs. AA./A-1392/K Revision accepted