P L D 1956 (W (PLP)

Date of hearing:16th January, 1956. KAIKAUS, J.‑

s is a revision by a plaintiff against an order of a Civil judge 1st Class, Lahore, setting aside an ex‑parte decree. The facts which have a bearing on this petition are a little complicated and have to be set out in some detail. The suit out of which this petition arises was filed on the 27th of November 1951, by Saeed‑ur‑Rehman plaintiff against four defendants (1) Abdul Majid Leshari, (2) Nazir Akhtar, (3) Rafiq Ahmad and (4) Lahore Films, 3, Abbot Road, Lahore, a firm through its managing partner Rafiq Ahmad defendant No.

3. The first three defendants are partners of defendant No.

4. The claim in the suit is for a sum of Rs. 24,630 alleged to have been advanced to the defendants for production of a film. Summonses were issued for the 12th of January 1952, on which date defendants Nos. 1 and 2 had been served personally and with respect to defendant No. 3, there was a report that he was avoiding service. Defendant No. 2 only appeared in Court on that date. The Court ordered ex‑parte proceedings against defendant No. 1, who had been served, and with respect to defendants Nos. 3 and 4, summonses were issued again for 7th of February 1952. Seventh of February 1952 was declared a holiday and in the absence of any party the case was fixed for the 11th of February 1952. On that date summons were issued for service on defendants Nos. 2 to 4, defendant No. 1 having already been proceeded against ex-parte. The next date fixed was the 11th of March 1952. On that date Mufti Qamar Din, Advocate, appeared for defendants Nos. 3 and 4, defendant No. 1 was shown as ex‑parte, and a notice was issued to defend ant No. 2 with respect to change of date, the case being fixed for 2nd of April 1952. On 2nd of April 1952, Muhammad Ajmal Khan, Advocate, appeared on behalf of all the defend ants. Written statement was also filed on behalf of all the defendants. The written statement was signed by Nazir Akhtar and Rafiq Ahmad. i.e. defendants Nos. 2 and

3. The power‑of‑attorney of Mr. Muhammad Ajmal Khan was signed by defendants Nos. 1 to

3. Defendant No. 4 is only the firm that the defendants No's. 1 to 3 constitute. The firm had been sued through Rafiq Ahmad. The power‑of‑attorney of counsel did not say that Rafiq Ahmad was signing on behalf of the firm The case was fixed for replication for 16th of April 1952, on which date a replication .was filed, issues framed and the case fixed for evidence for 12th of June 1952. It may be stated here that in the written statement the document sued upon had been admitted but undue influence and part payment had been pleaded and onus of all the issues framed was placed on he defendants. On the 12th of June 1952, the defendants neither summoned nor produced evidence and they secured an adjournment of the case to the 10th of July 1952 on payment of Rs. 50 as costs. On the last‑mentioned date again, the defendants neither summoned nor produced evidence and again succeeded in securing an adjournment from the Court on payment of Rs. 200 as costs. On 11th of July 1952, the next date for evidence, again there was no witness summoned or produced, but it was represented on behalf of the defendants that they had put in an application for transfer of the case. Leaving here the proceedings in the trial Court, I will state what as happening in the Court of the District Judge. On the 10th of July 1952, an application for transfer of the case had been put in by the defendants on the ground that the learned Civil judge who was trying the case was not affording them a proper opportunity for contesting the case. This application was fixed for hearing for the 10th of October 1952, on which date after arguments the case was fixed for the 14th of October 1952, for orders. On that date the appli cation was dismissed and the learned District judge passed an order directing the‑parties to appear in the trial Court on the 17th of October 1952. On the 17th of October 1952, defendants did not appear before the Court and the case was adjourned to 20th of October 1952 for ex‑parte evidence, and on that date an ex‑parse decree was passed. On the 18th of December 1952, an application to set aside the ex‑parte decree was submitted (No. 90/6) which was signed by, and purports to be on behalf of Rafiq Ahmad defendant alone though the power‑of‑attorney of counsel Which accom panies it is signed by defendants 1 to

3. On the 7th of January 1953, this application was dismissed in default. On the 13th of January 1953, an application was put in by Abdul Majid Leshari defendant No. 1 alone with the prayer that "petition for setting aside the decree be set aside". The number of this application is 8/6. On the 30th of January, this application was dismissed on the technical ground that the prayer simply asked for a setting aside of the petition for setting aside the decree. On the 20th of February 1953, another application, the number of which is 25/6, was sub mitted by Abdul Majid Leshari with the prayer that the order of dismissal for default dated the 7th of January 1953, and the ex‑parte decree be set aside. While this application (No. 25/6) was pending, another application for a review of the order on the application (No. 8/6) dated the 13th of January 1953, was put in on the eighth of August 1953. The learned Civil Judge, on these two applications, made the following three orders:‑ (1) On the 13th of December 1954, he passed an order setting aside the order dated the 30th of January 1953, dismissing the application on the technical ground that the prayer asked for is for setting aside of the petition. The order further allowed an amendment in the prayer in the following terms:. "It is therefore, prayed that the order of dismissal in default dated the 7th of January 1953, be set aside and the petition for setting aside the ex‑parte decree be restored, and the original suit disposed of on its merits". (2) On the 9th of February 1955 the learned Civil judge passed an order restoring the application (90/6) for setting aside the ex‑parse decree. (3) On the 6th of April 1955 the learned Civil Judge set aside the ex parte decree. Against the last order of the learned Civil judge the plaintiff has filed the present revision petition. Before me only Abdul Majid Leshari has appeared to oppose this petition, other respondents having remained absent in spite of service. In the application for setting aside the ex‑parte decree the ground taken was that the petitioners were not present before the District judge on the 14th of October 1952, when he gave a direction that parties were to appear before the Court on 17th of October 1952, and their absence on the 17th of October 1952, was not intentional. Issues framed in the application for setting aside the ex‑parte decree were: (1) Whether the application of the petitioner dated the 18th of December 1952 is within time? (2) Whether there is any reasonable ground for setting aside the ex‑parte decree dated the 20th of October 1952? The learned Civil judge held that there was nothing to show that any defendant, other than Nazir Akhtar defendant No. 2, had put in the application for transfer or had appeared before the District judge in that application, and that the defendants could not be presumed to have any knowledge of the 17th of October 1952, having been fixed as the date of hearing. However, this is not the ground on which the learned judge decided the case in favour of the defendants. He decided it on the ground that defendant No. 4, which is the firm, had never been duly served in the case. If it was not duly served and had no knowledge of the proceedings and the ex‑parse decree, the decree had to be set aside against defendant No. 4, and, under Order IX, rule 13 Civil P. C., the Court was empowered to set aside the decree against all the defendants. So the learned judge set it aside against all defendants. So far as the ground on which the decision of the learned judge is based is concerned, it is difficult to support it and learned counsel for Abdul Majid Leshari, though he supported it in the beginning of the arguments, was forced to accept that he could not rely upon it. In the first place, it was not the case for the defendants either in the petition for setting aside the ex‑parte decree or in the evidence produced that defendant No. 4 had not been served. No issue had been framed with respect to it. The learned Civil Judge could not, therefore, pave made it a ground of decision. The reason why learned counsel for Abdul Majid Leshari has been forced to accept that he cannot rely on non‑service of summonses on defendant No. 4 is this. So far as applications submitted after the 18th of December 1952, are concerned, they have been submitted by Abdul Majid Leshari alone. So far as the application of 18th December is concerned, learned counsel for Abdul Majid Leshari has to take up the position that that application for setting aside the ex‑parse decree was not put in by defend ant No. 4 at all. This application (which is the original application for setting aside the ex‑parte decree) is signed by Rafiq Ahmad alone. It says "Rafiq Ahmad (defendant) through Muhammad Zafar Pleader" The power‑of‑attorney of Mr. Muhammad Zafar is signed by Rafiq Ahmad, Abdul Majid Lashari and Nazir Akhtar, but it is not signed by Rafiq Ahmad as representing defendant No.

4. Now, the only argument which he can offer against service of summonses on defendant No. 4 is that while accepting service Rafiq Ahmad did not write the words on behalf of defendant No.

4. If learned counsel were to accept that, even though Rafiq Ahmad does not purport to sign as representing defendant No. 4, he should be deemed to act on behalf of defendant No. 4, his objection to the service of summonses falls. He is forced, therefore, to say that there is no application by defendant No. 4 at all. Not only is the order of the learned Civil judge not justi fied because the question of service of defendant No. 4 was not made the subject‑matter of any plea in the petition but even on facts and in law, the finding as to non‑service of defendant No. 4 is not correct. I have already stated the objection to service of summonses on defendant No. 4 and will now refer to the facts in some detail. At page 159/160 of the file, we find a summons issued to three defendants, Nazir Akhtar, Rafiq Ahmad and Lahore Films through Rafiq Ahmad. On this there is a report by the process‑server saying that he had taken the summons to defendant No. 4 through Rafiq Ahmad and that Rafiq Ahmad had made a report on the summons. The report on this summons, which is admittedly signed by Rafiq Ahmad, says that his mother is ill and some other date for his appearance may kindly be fixed. 'Learned counsel urges as already stated that here Rafiq Ahmad should have signed on behalf of the firm. This argument does not impress me. The report of the process‑server is clear that he had approached Rafiq Ahmad for service on defendant No.

4. The validity of service will not depend upon Rafiq Ahmad stating that he signs as a representative of defendant B No.

4. Suppose he is not a defendant in the suit at all and when served on behalf of the firm simply signs as Rafiq Ahmad. Could it make any difference that he did riot describe himself a representative? Not only that, another summons by regis tered post had been sent to the Lahore Films, 3, Abbot Road, Lahore, for 11th March 1952, and was returned as refused. That too would be good service though it is not necessary to rely upon it, for otherwise service is sufficiently proved. On the 11th of March 1952; Mufti Qamar Din appeared as counsel for defendants Nos. 3 and

4. Again; the objection of the learned counsel to the power‑of‑attorney of Mufti Qamar Din is that he had been authorised by Rafiq Ahmad not as representative but in his own behalf. It appears to me that everybody in this case has been regarding the signature of Rafiq Ahmad through whom defendant No. 4 was served, sufficient for the purpose of representation of defendant No. 4, although to the signature no words are added saying that he is representing defendant No.

4. The written statement in this case purports to be on behalf of all the defendants but it is signed only by defendants Nos. 1 to

3. The power‑of attorney of the counsel is signed only by Rafiq Ahmad without reference to defendant No.

4. Then, learned counsel for Abdul Majid Leshari had alleged before me that Messrs. Sardar Muhammad Iqbal and Muhammad Zafar had represented all the defendants before the learned Civil Judge. I find that their power‑of‑attorney too is signed by Rafiq Ahmad without any reference to defendant No.

4. While learned counsel for Abdul Majid Leshari is unable to support the judgment of the learned Civil judge on the ground that defendant No. 4 was not served, be contends that the order, can be supported on the ground that Abdul Majid Lashari was entitled to have the decree set aside on his own account. Abdul Majid Leshari, he says, had never been properly served in the case at all and he had also sufficient reasons for not appearing before the Court on the 14th of Octo ber 1952, for he had not been informed of this dal of hearing When confronted with the objection of limitation, learned counsel contends that if Abdul Majid Leshari was not duly served, limitation would, under Art: 164, begin from knowledge and this knowledge he had gained within limitation. When his attention is drawn to the fact that a counsel had been appearing for Abdul Majid Leshari before the learned Civil Judge before the ex‑parse decree was passed and the written statement had been filed on his behalf too, he says the signatures on the power of attorney of counsel are not in fact those of Abdul Majid Leshari. The plea that Abdul Majid Lashari was not properly served was not taken in any petition, was not made the subject of any issue and ‑no argument with respect to it was addressed to the learned Civil Judge. It should not, therefore, be allowed to be raised now. Learned counsel contends, however, that the defect is patent in the record. I will allow him to raise the point, therefore, but only in so far as it could not have been met by a plea of fact and I will make all assumptions of fact against him. It is necessary to deal only with the question of limitation, for if I find that Abdul Majid Leshari had been duly served within the meaning of Article 164 of the Limitation Act, time would run from the date of the decree and the application for setting aside the ex‑parse decree would be time barred. The defect in the service of summonses pointed out by the learned counsel for Abdul Majid Leshari is that no copy of the summons had been delivered to him. What happened is that (probably on account of the scarcity of forms) a single summons was issued to all the four defendants. The names of the four defendants were given on the back of the summons. The process‑server gave a copy of the plaint to Abdul Majid Leshari, who wrote on the back of the summons "arzi da'wa wasul paya". Learned counsel urges that under Order V, rule 10 Civil P. C., service is to be effected by delivering or tendering a copy of the summons and that not having been done, the service is defective. No authority has been cited in support of this proposition, and I am not prepared to take an extremely technical view of what is due service. The object of service of summons is that the defendant should have notice of the case against him and of the Court in which he is to appear. If he is given the requisite information at a time when he is able to appear and defend the suit, the service would be sufficient. For due service all that is required is that there should be substantial compliance with the provisions relating to service of the summonses. If the defendant, for instance, reads the summons and knows the Court in which he is to appear, the effect is the same as if he had received a copy of the summons. If by reading the summons, or by the process‑server reading out to him the contents of the summons. Abdul Majid Leshari had notice of the Court in which he had to appear, there is no further need of delivering to him a copy of the summons. I will assume that either he read the summons or was given full information as to its contents, for as I have stated above, the plea had not been taken by him and I will make all assumptions of fact against him. In this view his application is time‑barred and no further discussion en the points that arise is necessary. This case is a typical example of how the defendants can make efforts to prolong litigation. On the first date fixed for evidence, the defendants neither summoned nor produced any evidence. They got an adjournment and again neither summoned nor produced any evidence. On the next date, they said they could not proceed with the case for they had applied for a transfer of the case. The ground of transfer, strange to say, was that the Court was not affording them a proper opportunity for production of evidence. When the learned District judge pronounced the orders against them, they again failed to appear on the date fixed by the learned District judge himself. Abdul Majid Leshari has, as a witness, admitted that he had engaged Sardar Muhammad Iqbal in the application for transfer, and, therefore, the argument accepted by the learned Civil judge that he did not know of the application for transfer is without force. The record shows that all the defendants had been appearing before the learned Civil Judge and the written statement was on behalf of all of them. For the purpose of setting aside the ex‑pane decree, a technical plea was taken that the fourth defendant, which was only the firm constituted by the first three defendants, had not been properly served. The defendants were trying to take advantage of the fact that Rafiq Ahmad when he signed, did not sign as representing defendant No. 4 also. When it was urged on behalf of the plaintiff that a counsel had been appearing on behalf of Abdul Majid Leshari also, Abdul Majid said he had not signed the power‑of‑attorney at all and the counsel, Mr. Muhammad Ajmal, said that the power‑of‑attorney had trot been signed in his presence. An advocate should remember that he has some responsibility in respect of the signatures on a power‑of‑attorney. He cannot renounce all responsibility by just saying that the power‑of‑attorney was not signed in his presence. He had to take reasonable precautions to ensure that the signatures were in fact those of the person concerned. This application for revision is accepted, and the order of the learned Civil judge setting aside the ex‑pane decree is set aside. The respondents shall pay the costs of the petitioner before the Civil Judge as well as‑ in this Court. A. H. Petition accepted.