2023 PLP 233 (PLC)

SHAHID MEHMOOD KHOKHAR, CHAIRMAN.

Instant C. M. No. 1 has been filed by the respondent management for setting side ex-parte order dated 12/01/2021 and ex-parte judgment dated 17/02/2021, passed by this Tribunal. Learned counsel inter alia contended that respondent management was unaware of the proceedings carried out by this Tribunal and subsequent ex-parte judgment passed thereon. In support of his contentions, he has heavily relied upon sole ground of non-issuance / service of summons notices to the respondent at their given address. Further states that before filing of the petition on 28-07-2020, the parties were already in a compromise /out of court settlement through which petitioner was paid an amount of Rs.130351/- through cheque dated 08.07-2020, whereby, petitioner had candidly given undertaking that after settlement of his dues he has no outstanding dues left with the management nor any such claim will be raised in future. The above said undertaking / receipt of the payment is available on record along with instant C.M. Learned counsel has further stated that even the judgment was passed ex-parte on 17-02-2021 and respondent management had no knowledge till 16-12-2022, when this Tribunal passed the order of suspension of respondent management from Central Media List and withholding of payment by PID. Therefore, the date of knowledge of the respondent is 16-12-2022 and thus from the said date respondent has knowledge of the proceedings and has filed instant C.M. within time under Article 164 of the Limitation Act. Further submits that due to order dated 08-12-2022 passed by this Tribunal the pending payment by PID is halted and respondent is suffering from irreparable loss, therefore, seeks recalling of order dated 08-12-2022. Learned counsel further submits that the respondents were not served properly and in accordance with the provisions of Order V, C.P.C. at any stage nor were issued any notice at given address. Furthermore, alternate methods of substitute service were also not adopted before proceeding ex-parte and thus, were not aware of any pending proceeding for passing of ex-parte judgment dated 17/02/2021 and the date of knowledge of the respondent commenced from 16/12/2022 when representative of the respondent management informed the respondent after visit of the Press information Department, Islamabad on 15/12/2022, whereby he was informed about suspension of the respondent newspaper from Central Media List and stoppage of release of dues by the PID, Islamabad pursuant to order dated 08/12/2022. Further submits that management obtained copies from this Tribunal and filed application on 16/01/2023 and thus respondent prays for setting aside ex-parte proceedings as well as judgment dated 17/02/2021 as mentioned above. Further submits that the superior Courts have always encouraged to decide the matter on merits as justice should not be denied on the basis of technicalities. In this regard, he has placed reliance on 1986 CLC 1853 and PLD 2003 SC 625, wherein it was held:- "Law, however, favoured the adjudication of a lis on merits rather than on sheer technicalities. Apart from the provisions of Order IX, Rule 13, C.P.C., every administrative, judicial or quasi judicial Tribunal had the power to recall ex-parte orders in appropriate case in the interest of justice and for valid reasons"

2. Similarly, for non-issuance of summons and non-adoption of substitute service, learned counsel for the respondent has relied on 2022 MLD 250 and 2013 MLD 1383. Further submits that non-appearance of the respondent at the trial stage was neither deliberate nor unintentional but was due to the prevailing circumstances beyond its control and thus seeks the setting aside of above judgment dated 17/02/2021.

3. On the other hand, learned counsel for the petitioner strongly opposed the instant application as according to him, the respondents were duly served with notices by this Tribunal but respondent intentionally avoided appearance and that resulted into ex-parte proceedings and subsequently ex-parte judgment. Further submits that instant application is not maintainable as it is not filed within the limitation of 30 days as provided under Article 164 of the Limitation Act and no application for condonation of delay has been tiled by respondent. It is also stated by learned counsel for the petitioner that application has been filed by respondent No. 1 only. Further submits that address of Respondent No. 3 is still available on the website of APNS, which is sufficient to prove against the respondent. Further submits that address of Respondent No. 3 is still available on editorial page, therefore, application is misleading and is against the facts of the case. Further submits that address as mentioned in memo. of petition with regard to the press, situated in 1-9/3 was available and notices were served upon the above said address and it has been shifted last year from 1-9/3 to G-7/4 but no permission from DC Office for change of address was obtained nor any intimation has been given to this Tribunal. Further submits that in view of the definition of Wages in Section 2(h) of the Newspaper Employees (Conditions of Service) Act, 1973 read with section 23 of Payment of Wages Act, 1936, the petitioner cannot be precluded from claiming any arrears from the respondent management. He has relied on judgment reported as 2017 PLC

139. Learned counsel further submits that in view of judgment passed by the honourable Islamabad High Court, Islamabad in case titled Iqbal Mustafa Bukhary v. Daily Khabrain, Islamabad reported as 2019 PLC (C.S.) 541 wherein, the honourable Islamabad High Court, Islamabad has held that C.P.C. is not stricto senso applicable on the proceedings of this Tribunal, the application in hand, even if considered under Order IX, Rule 13, C.P.C. is not maintainable. Lastly he prays for dismissal of the application.

4. I have given my anxious considerations to the arguments, advanced by both sides as well as perused record, which clearly indicates that notices were issued to the respondent newspaper at the given address Plot No. 348, Street No. 1, I-9/3, Islamabad on 11/08/2020 and 27/08/2020 and thereafter, notice was issued to Chief Executive, Daily Jehan Pakistan at Victoria Plaza, Sohan Expressway, Service Road, Islamabad, which was different from the address of respondent No. 3 i.e. House No. 21, Street No. 56, F-6/4, Islamabad and Respondent No. 4 i.e. University of Lahore 6.7 km, Japan Road, Sihala Zone-V. Islamabad and there is nothing available on record which shows that respondent was served notice with alternate means / substitute service. As far as contention of learned counsel for the petitioner that address of Respondent No. 3 is still available on the website of APNS, which is sufficient to prove against the respondent but no such document has been filed by learned counsel for the petitioner in support of his contention. Furthermore, learned counsel for the petitioner vehemently opposed the application by stating that C.P.C. is not stricto senso applicable in the proceedings before this Tribunal but while making this argument, has not considered the provisions of Rule 17 of Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977, which is hereby reproduced for brevity:- "

17. Subject to the provisions of these rules, the procedure prescribed under the Civil Procedure Code, 1908 (Act V of 1908), with regard to civil suits may be followed as far as it can be made applicable in the proceedings before the Tribunal". Further in a number of cases, this Tribunal has already invoked provisions of Order XXI, Rule 30, C.P.C., for implementation of judgments, passed by this Tribunal and thus, executed the same in it true spirit, therefore, in view of the judgment, passed by the apex Court reported as 1986 CLC 1853 and PLD 2003 SC 625 read with Article 189 of Islamic Republic of Pakistan, 1973, I am of the considered opinion that justice should not be denied on the basis of technicalities rather a lis should be decided on merits and thus I am fortified with above said dictum laid by the august Supreme Court and I hereby set aside the ex-parte order dated 12/01/2021 and subsequent ex-parte judgment dated 17/02/2021 subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) to be paid by the respondent to the Edhi Foundation and receipt thereof shall be submitted by the respondent along with reply and statement of account before the next date of hearing.

5. Adjourned to 09/05/2023. MQ/1/ITNE Application allowed.