2011 PLP 1311 (YLR)

SHER MUHAMMAD KHAN, J.--Respondent filed suit against appellant for recovery of Rs.17,20,000, in the Court of Senior Civil Judge, D.I.Khan. Rs.7,20,000 has been claimed as earnest money/down payment allegedly paid to the appellant in consideration as sale price of the shops owned by appellant situated on Qilla Road D.I.Khan vide agreement to sell deed dated 14-2-2005. He also claimed Rs.10,00,000 as damages for mental torture and agonies suffered by him due to violation of the terms of agreement by appellant. It is averred in the plaint that the appellant executed an agreement to sell with respondent for selling his three shops in consideration of Rs.9,00,000, out of which, according to his assertion Rs.7,20,000 was paid to the appellant as down payment at the time of execution of the agreement and the remaining was promised to be paid at the time of delivery of possession of the shops and execution of proper registered sale-deed/attestation of mutation. The transaction between the parties was reduced into writing on 14-2-2005. According to averments in the plaint the appellant neither transferred the ownership and possession of the suit shops in favour of respondent in accordance with the terms of agreement dated 14-2-2005 nor returned the earnest money/down payment of Rs.7,20,000 to respondent.

2. The learned trial Court issued summons in the name of appellant; which was initially not served, however, it was repeated on 23-7-2007 and personally received .by appellant but even then he failed to appear before the trial Court. Having no other option the learned trial Court proceeded ex parte vide order dated 26-9-2005 against the appellant.

3. Ex parte evidence of respondent was recorded on 25-1-2006 and 22-6-2006. After hearing ex parte arguments of the learned counsel of the respondent, the learned trial Court passed an ex parte decree against the appellant for recovery of Rs.7,20,000 on 27-9-2006. However, the prayer of respondent for payment of Rs.10,00,000 as damages was declined.

4. On 23-11-2006, the appellant submitted an application for setting aside ex parte decree dated 27-9-2006, which was hotly contested by respondent and ultimately it was dismissed by learned trial Court, after hearing arguments of the learned counsel of the parties vide order dated 17-12-2007.

5. Aggrieved with the above mentioned judgment / order dated 17-12-2007 and ex parte decree passed against him on 27-9-2006, the appellant filed Civil Appeal before the learned District Judge, D.I.Khan on 26-3-2008, which was entrusted for disposal to the Court of learned Additional District Judge-VII, D.I.Khan. The appeal remained pending till 6-7-2009 in the Court of learned Additional District Judge-VII, D.I.Khan. During course of arguments, it was pointed out that Rs.17,20,000 was fixed as value, by plaintiff for the purpose of jurisdiction and court-fee, therefore, the District Judge lacks pecuniary jurisdiction to entertain the appeal filed by appellant. The learned Appellate Court accepted the objection :and was pleased to return the appeal to the appellant on 6-7-2009, for presenting the same before this Court within ten days from the date of return.

6. The appellant has filed the instant appeal on 16-7-2009 before this Court.

7. The learned counsel appearing on behalf of the appellant argued that the appellant was not served and the signatures available on the summons of the trial Court does not tally with other admitted signatures of the appellant and the learned trial Court did not afford opportunity of producing evidence in support of his contention. He next contended that under Order V Rule 10-A of the Civil Procedure Code, simultaneously with the issue of summons under Rule 9, C.P.C. there shall be sent, unless otherwise- ordered by the Court to the defendant, by registered post, acknowledgment due, an order of copy of summons, signed and sealed in the manner provided in Rule 10, C.P.C. It. was also contended that huge amount is involved, therefore," without recording evidence, ex parte decree should have been set aside and the case decided on merits. He relied on the judgments of this Court titled Muhammad Ramzan v. Afridi Variety Center PLD 2005 Peshawar 269, Rahmatullah v. Colonel (R) Muhammad Latif Khan 2005 YLR 3278, Zulfiqar v. Muhammad Jan 2002 CLC 932, Government of N.-W.F.P. v. Messrs Hussain Mir and Company 2010 CLC 295 Sarwar Khan v. Ali Bad Shah and 42 others 2004 YLR 2359. Reliance was also placed on the judgments of the honourable Lah. High Court titled Muhammad Asghar and others v. Qamar Din PLD 2005 Lahore 240, Saifullah and 2 others v. Mst. Kausar Parveen 2006 YLR 526 and the judgment of august Supreme Court reported in 2002 SCMR 664 in case titled Ahmad Khan v. Haji Muhammad Qasim and others.

8. Learned counsel appearing on behalf of respondent argued that the rulings relied upon by appellant are not applicable to the facts and circumstances of the instant case because the appellant was personally served through bailiff or the Court which fact he admitted in judicial proceedings, decided against him by learned Additional District Judge-I, D.I.Khan. He also argued that appellant did not approach the Court with clean hands and has concealed material facts therefore, is not entitled to any discretionary relief. Learned counsel of the respondent referred to the application submitted by appellant before the trial Court for setting aside ex parte decree, which was filed on 23-11-2006, wherein in Para No.4 it was averred that he received information about ex parte decree, passed against him, four days before the institution of application. On the other hand, on 25-9-2006 when in another suit filed against appellant by respondent, statement of respondent was being recorded in the Court of Additional District Judge-I, D.I. Khan, counsel of the appellant put questions to respondent, which was answered in the following manner; "It is correct that one agreement to sell was reduced into writing on 14-2-2005 between plaintiff and defendant. I had sent two notices to defendant, one was in respect of shops and the other was in respect of pro note, inadvertently notice regarding shops has been annexed in the present suit while notice regarding pro note has been annexed with the suit pending in the Court of learned Senior Civil Judge, D.I.Khan in respect of shops"

9. It was next argued that two suits against the appellant were filed by respondent, one on the basis of pro note in the Court of Additional District Judge-I, D.I. Khan under the provisions of Order XXXVII, C.P.C. and another on violation of the terms of agreement to sell, in the Court of learned Senior Civil Judge, D.I. Khan. In both the cases, Muhammad Hanif Process Server was deputed to effect service of the notice upon the appellant, who delivered the same to him on 24-8-2005 at the same time and obtained signatures of the appellant on the back of the notices/summons and sworn affidavits to this effect, in writing under his report. The appellant did not disown his signature affixed on the summons, issued by learned Additional District Judge-I, D.I. Khan in the suit filed under Order XXXVII, C.P.C.

10. It was lastly argued that the appeal was filed in wrong forum, having no pecuniary jurisdiction which was returned after remaining pending for about sixteen months and is hopelessly time barred because neither there is any application for condonation of delay nor the appellant is entitled for condonation on the ground that due to wrong advice of the counsel he had approached the wrong forum. He further stressed that learned Additional District Judge-VII, D.I.Khan, could not grant time for presentation of appeal before this Court due to lack of jurisdiction. Reliance was placed in the case of Mehtab Khan v. Faiz Muhammad PLD 2003 Peshawar 64.

11. The suit filed by respondent against the appellant in the Court of learned Additional District Judge-I, D.I.Khan under the provision of Order XXXVII, C.P.C. has also been decreed against the appellant and the appellant has also impugned the judgment decree of that Court through R.F.A No.27 of 2009, original record of that case is available before me which is also fixed for hearing today and learned counsel of the parties have advanced their arguments in that appeal too.

12. From perusal of the records of both the appeals it is evident that the appellant was served in both the cases by process server Muhammad Hanif on 24-8-2005. Appellant have signed the summons as token of receipt and to this effect the report of process server, duly supported by sworn affidavits, are available on the record. The receipt of summon in the Court of learned Additional District Judge-I, D.I.Khan has not been denied by the appellant. It does not appeal to common sense that the same process server would obtain signature of the appellant on one document and would affix forge and fictitious signature of the appellant on other for unknown reason. The contumacious conduct of the appellant is evident from the cross-examination on respondent on 25-9-2006, where in judicial proceedings it was brought to his knowledge that another case is pending against him in the Court of learned Senior Civil Judge, D.I.Khan but in his application filed for setting aside ex parte decree on 23-11-2006 he has concealed this material' fact and has stated that he gained knowledge four days prior to the application regarding ex parte decree, passed against him.

13. From the above judicial documents it is crystal clear that appellant was properly served personally and he intentionally avoided appearance in the Court to delay the decision of the case.

14. As far as the execution of agreement to sell is concerned, it has also, been admitted by the appellant, by putting positive suggestion to respondent, during cross-examination in the Court of Additional District Judge-I D.I.Khan. (The relevant portion of that crops-examination has already been reproduced in Paragraph No.8 of this judgment).

15. Now I want to discuss the judgments, referred to by learned counsel of the appellant and to see that whether it has any relevancy with the facts and legal aspects of the present appeal or not. In the judgments reported in PLD 2005 Peshawar 269, PLD 2005 Lahore 240, 2006 YLR 526 and 2004 YLR 2359 defendant was not personally serviced and ex parte decrees were passed as a result of substituted service, which is not the case in hand. The case reported in 2006 A.C. 735 was filed Under Order XXXVII of the Civil Procedure Code and the mandatory provision contained in Rule IV of the Order ibid was not complied with and ex parte proceedings were, initiated which was set aside by this Court with observation that the ex parte decree was passed against him in violation of requirements of service provided in Rule 10-A, Order V of C.P.C., which again has no relevancy to the facts of the instant case. Similarly, the facts of case reported in 2002 CLC 932 are also different from the case in hand. In that case the defendant was not served personally at his home address and it was stated that he was found later on in the office of Deputy Commissioner, where he was served but no identifying witness was cited on the back of the notice. As already observed in the instant case two summonses, in two different cases were served upon the appellant by one and the same Process Server, on the same time and date. The appellant does not dispute the service in one case and denies the service in another. But other judicial record negates his version therefore the judgment referred to above is of no help to the appellant. The case reported in 2010 CLC 295 is also based on different facts, wherein the learned trial Court had passed decree to the tune of Rs.37 million, after giving notice Under Order XVII, Rule 3 of C.P.C. but the judgment was not based on sound reasoning and evidence, which was set aside by the appellate Court and revision of the plaintiff against the appellate order was dismissed. Finally the case of august Supreme Court reported in 2002 SCMR 664 has also different facts and is not applicable to the instant case because in that case also petitioner was not personally served and service was effected through proclamation.

16. In my humble view the appellant is negligent, careless and indolent which is proved from the record therefore, he does not deserve any leniency and the learned lower Court has rightly passed ex parte decree against him and dismissed his application for setting aside ex p. arte decree.

17. Before parting with this judgment I would also like to give my findings regarding maintainability of the instant appeal which is hopelessly barred by time. The facts have already been discussed in the early paragraphs of this judgment that the subject matter of the suit was Rs.17,20,000 and under section 18 of the West Pakistan Civil Court Ordinance (II of 1962) the thrum of appeal is to be determined according to the value of the suit mentioned in the plaint and not according to the subject matter awarded in I the judgment/decree passed by the trial Court because appeal is continuation of the suit and the appellate Court has ample power to amend, reverse or enhance the amount of decree. Reliance is placed in the case of Muhammad Ayub and 4 others v. Dr. Obaidullah and 6' others 1999 SCMR 394 and Mehtab Khan and others v. Faiz Muhammad PLD 2003 Peshawar 46.

18. The next question to be resolved is, that whether the time consumed in approaching the wrong forum by advice of counsel, can be condoned? The answer to this question is in negative in the light of the established principles of law laid down by the august Supreme Court in the following judgments. Manzur Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498, Islam Din v. Allah Nawaz another 1988 SCMR 02, Raj Muhammad v. Mst. Chan Bibi and others 1984 SCMR 1068 and Mian Aizad Bakhsh v. Sheikh. Muhammad Afzal 1985 SCMR 1003.

19. The appellant has not filed application for condonation of delay, perhaps under the impression that learned Additional District Judge-VII, D.I.Khan has granted ten days for presentation of the instant appeal before this Court. The appellant and his counsel have misconceived the legal position in this aspect. When a forum lacks jurisdiction to adjudicate upon the lis conclusively, it cannot pass any order in respect of any interlocutory, incidental or ancillary matters and if any order has been passed thereto, that is of no legal value, sanctity and binding effects.

20. In the light of above discussion, I see no force and reason in the arguments of the learned counsel of the appellant, therefore, the instant appeal, being without merits, is hereby dismissed and judgment/ decree of the trial Court dated 27-9-2006 and order dated 17-12-2007 are maintained with no order as to cost. S.A.K./427/P Appeal dismissed.