1995 PLP 1290 (CLC)

Endorsement on the envelopes dated 28‑3‑1994 is as under:‑‑ There is again a report of the bailiff dated 16‑5‑1995 which is reproduced as under:‑‑

9. I would like to refer Rules 140 and 141 of the Sindh Chief Rules (O.S), which read as under:‑‑ "

140. If the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb‑impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process served.

141. Whether the person to be served refuses to sign the acknowledgement or cannot be found, the serving officer shall, whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb‑impression of at least one respectable person of the locality in support of such fact:' From these rules it is quite clear that for the purpose of identification and service or affixation of the copy of the summons all that is required is that the bailiff should do the same in presence of at least one respectable person of the locality and obtain his signature or thumb‑impression.

10. Mr. Muhammad Sharif, learned counsel for the defendant has referred me to the following authorities:‑‑ (i)1989 CLC 1394‑Case of Mst. Daulat Bai v. Kabiruddin and 3 others:‑‑ "Service of summons ‑‑‑Procedure‑‑‑Sindh Chief Court Rules envisage that for the purpose of identification and service or affixation of copy of summons, all that is required is that bailiff should do it in presence of at least one respectable person of the locality and to obtain his signature or thumb‑impression which is also in accordance with provisions of ON. R. 17 C.P.C." This authority of the learned D.B. of this Court is very much applicable to the facts and circumstances of the present case as the bailiff has not associated any respectable person of the locality in identifying the person or the place of residence of the defendant. (ii) 1989 C L C 691‑Case of Mst. Salima Khatoon v. Manzar Hussain:‑‑ "Ex pane decree, setting aside of ‑‑‑Defendant‑petitioner who was proceeded ex parte for non‑appearance contending that he was not served properly in suit brought against him by plaintiff‑‑‑Summons was served by affixing a copy thereof on outer door of house of defendant but endorsement of Bailiff did not show that provisions of R. 17 of ON, C.P.C. had been complied with‑‑‑Bailiff in his report did not give name and address of person by whom house of defendant was identified and in whose presence the copy was affixed‑‑‑No proof was available that defendant had avoided or refused to receive summons‑‑ Held, there was no proper service of summons of suit upon defendant‑‑‑Ex parte decree passed against defendant was set aside." This authority is very much applicable so far the facts and circumstances of the present case are concerned. (iii) 1993 MLD

889. Case of Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah:‑‑ "Mode of service of summons on defendant‑‑Service of summons on defendant personally‑‑Substituted service when to be resorted to‑ Defendant in spite of substituted service not appearing‑‑‑Ex parte proceedings or even ex parte decree could not be passed against defendant in case of his non‑appearance despite such service." This authority is also very much helpful to the case of the defendant's present case. (iv) PLD 1993 SC

147. Case of Province of the Punjab v. Muhammad Hussain:‑‑ In this authority the Hon'ble Supreme Court while considering the case of Shamroze Khan v. Muhammad Amin (PLD 1978 SC 89) has observed as under:‑‑ 'The words `and pass decree without recording evidence' were inserted by the Law Reforms Ordinance and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time‑barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads: ..the Court may proceed ex parte and pass decree without recording evidence.. This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word `may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially. (v) 1992 SCMR 1009‑‑‑Case of Police Department v. Javid Israr and 7 others:‑ In this authority the Hon'ble Supreme Court has held as under:‑‑ "As such, in the absence of any clear prohibition in the scheme of civil procedure denying the defendant of his right to take part at any stage of the proceedings after the order of ex parte proceedings, he can appear and defend the suit if somehow his application for setting aside the ex parte proceedings does not succeed on account of his failure to show good cause for his previous non‑appearance. It is, therefore, held that the defendant who had been proceeded against ex parte can take part in the subsequent proceedings as of right."

11. The learned Additional Registrar while passing order on 6‑4‑1994 has not given reasons in the same order.

12. I have gone through the material placed on record and have applied my mind. The endorsement of the bailiff and the endorsement on the Registered A/D is clear that the defendant was not properly served and that the bailiff did not take any respectable person with him at the time of affixation of summons on the door of the office or residential address of the defendant. Substituted service was also not held good by the Additional Registrar and subsequently corrigendum was issued. Order of the Additional Registrar dated 6‑4‑1994 shows that reasons are not given in the order itself. The contention of Mr. Muhammad Mehboob Khan, that the defendant Ch. Faiz Ahmed son of Ch. Fazal Karim has verified on oath in Suit No. 1055/89 as Managing Partner of M/s. Long Life Builders and in his plaint in Suit No. 627/91 he has verified as Managing Director of M/s. Long Life Builders having their office at 1st Floor, 5 Star Arcade, Block 14, Gulshan‑e‑Iqbal, Karachi and that the address of the defendant for service is the same, is of no help to the case of the plaintiff. First primary thing for determination is whether the defendant has avoided from service and whether the service was effected? As discussed earlier there is no any material on record which can show that the defendant has avoided service. Endorsement of the bailiff and the endorsement on the postal envelopes are prima facie clear that the defendant was not served legally as required under the law and that the order of the Additional Registrar, debarring the defendant from filing Written Statement, is not sustainable. Nobody should be condemned unheard. Even otherwise any order on merit is better than any ex parte order.

12. In view of the facts and circumstances as stated above as well as the case‑law discussed above, this application is allowed and the defendant is allowed to file written statement within a period of one month from today. AA./Z‑239/k Application accepted.