1992 PLP 563 (CLC)

5. On 10th of September, 1969, the respondent filed an application for the execution of the decree. On 7th of November, 1969, the executing Court passed an order for the issuance of warrant of attachment against the American Life Insurance Co. On 19th of January, 1970 when the warrant of attachment was presented to the Administrative Secretary of the Insurance Co. he sought time for necessary consultation as according to him. he had no authority to make payment of Rs.10,000 and will have to get this payment from Head Office".

6. On 21st of January, 1970, an application was filed by the American Life Insurance Co. under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree. It was averred that service of the Insurance Company was never effected in accordance with law. It was contended that according to the requirement of Order 29, Rule 2, C.P.C. the service ought to have been effected on the Secretary, or on a Director or other Principal Officer of the Insurance Co. This application was opposed by the respondent who controverted the above averment and the contention. She also raised preliminary objections to the effect that the application was barred by time and that on account of the commitment made by the Administrative Secretary on the warrant of attachment, the application was not maintainable. The following issues were framed:‑‑ (1) Whether the application is within time? OPA (2) Whether there is sufficient ground for setting aside the ex parte decree? OPA (3) Whether the application is not maintainable on account of the admission, if any, made by the Administrative Secretary of the defendant Company? OPD (4) Relief

7. On behalf of the Insurance Co., Shahid Hussain A.W.1, its Administrative Secretary, entered the witness-box. In rebuttal the respondent examined three witnesses who were Muhammad Jehangir R.W.1,.a process server of the Civil Courts, Lahore who was entrusted the summons Exh.R.l for service on the Insurance Co., Mr, Muhammad Ikram Chughtai R.W. 2, an Advocate and Khalid Siddiqui, R.W.3, brother of the respondent.

8. After appraising the above evidence, the learned trial Court vide its order dated 21st of June, 1972 found issue No.3 against the respondent but deciding issues Nos.1 and 2 in her favour dismissed the application.

9. Feeling aggrieved, the American Life Insurance Co. preferred an appeal which was heard by the Additional District Judge, Lahore who vide his order dated 9th of December, 1974 dismissed the same.

10. Meanwhile the American Life Insurance Co. had been nationalized in the year 1972 and its assets and liabilities had been taken over by the State Life Insurance Corporation of Pakistan. On 25th of January, 1975 the State Life Insurance Corporation of Pakistan filed this revision petition assailing the validity of the order passed by the learned Additional District Judge, Lahore.

11. I have perused the record and heard learned counsel for the parties. Learned counsel for the petitioner has mainly relied on Order 29, Rule 2, C.P.C. in support of his contention that service of the American Life Insurance Co. was never effected in accordance with law. Order 29, Rule 2, C.P.C. runs as under:- "

2. Service on corporation.--Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-- (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business." According to the above provision of law, summons issued in a suit against a corporation, subject to any statutory provision regulating service of process, has got to be served on the secretary or any director or other principal officer of the corporation. Learned counsel for the respondent has not cited any statutory provision envisaging a different mode of service of a process on a corporation. In this case, the summons Ex.R.l was not served on the secretary or on a director or other principal officer of the American Life Insurance Co. Mohammed Jehangir, process-server who was produced as R.W.1 did not say that he presented the summons Exh.R.l to either the secretary or the director or the principal officer of the Insurance Co. According to him, he was not aware as to whether the ahlkar to whom he presented the summons Exh.R.l and who made the report Exh.R.l j2 on its reverse was authorised to receive the same. Mr. Mohammed Ikram Chughtai, Advocate R.W.2 admitted in his examination-in-chief that report Exh.R.l/2 on the summons Exh.R.l was made by a clerk. It is manifest from this evidence that even if the report Exh.R.l/2 is treated as tantamount to service of the summons Exh.R.l, the service was in violation of Order 29, Rule 2, C.P.C.

12. As regards the service of the Insurance Company by a proclamation in the newspaper, it is argued that in the circumstances of the case such mode of service was uncalled for and unjustified. According to Order 5, Rule 20, C.P.C., substituted service can be resorted to when the Court is satisfied that there is l 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. After the respondent was allowed to sue in forma pauperis by an order dated 22nd of January, 1969, summons was issued to the American Life Insurance Co. for 17th of March, 1969. This summons was not received back. A fresh summons was issued for 5th of May, 1969. This is Exh.R.l. This summons was returned by some clerk of the company with a report that it should come in duplicate and should be accompanied by a copy of the plaint. Order 5, Rule 2, C.P.C. provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. According to Order 5, Rule 10, C.P.C., service of 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. No doubt, the non-observance of the requirements of Order 5, Rules 2 and 10, C.P.C. does not render the service of a summons as ineffective, nevertheless in the instant case when the summons Exh.R.l was not served on an authorised officer of the Insurance Company but had been presented to and returned by a clerk, the Court in the interest of justice should have taken notice of the objection and passed an order for the issuance of afresh summons in duplicate and accompanied by a copy of the plaint for service on an authorised officer of the company instead of invoking the provisions of Order 5, Rule 20, C.P.C.

13. Learned counsel for the respondents relying on the second proviso to Rule 13 (1) of Order 9, C.P.C. has contended that any irregularity in the service of the summons is inconsequential as the Insurance Company in view of the publication of the proclamation in the newspaper had knowledge of the date of hearing and sufficient time to appear on that date and answer the claim. This contention has no force as there is no evidence on record to show that the proclamation ever came to the knowledge of the secretary or any director or any other principal officer of the Insurance Company.

14. For the foregoing reasons I hold that there is sufficient cause for setting aside the ex parte decree passed against the petitioner.

15. In the result, I accept this revision petition, set aside ex parte decree and remand the suit to the trial Court for its decision afresh on merits in accordance with law.

16. The record shall be sent to the learned District Judge, Lahore for entrusting the suit to any of the Courts competent to try it. AA./S‑1029/L Revision accepted.