1984 PLP 1062 (MLD)

"(4) Power to set aside decree.-- After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit." It would be evident from the above rule which governs proceedings under the said Ordinance also, that a special procedure has been provided for setting aside an ex parts decree and that Order IX, rule 13, C.P.C. has been impliedly excluded from the purview of Order XXXVII. C.P.C. as well as the said Ordinance. Mr. Z.U. Ahmed has, in thin connection also relied upon the case of Muhammad Azeem Khan v. Habibun Rehman N L R 1980 U C 176 in which a learned Single Judge of Lahore High Court observed that Order IX, rule 13, C.P.C. is not applicable to ex parte decree passed under Order XXXVII. It was further held that proper course for the aggrieved party shall be to apply under rule 4 of Order XXXVII. I am in respectful agreement with the view taken in the above case that no application under Order IX, rule

13. C.P.C. is maintainable for setting aside an ex parte decree passes under Order XXXVII, C.P.C. read with sections 2(2) and 7(2) of the said Ordinance. Even on merits the above application has no substance. It was made after twelve months of the announcement of the judgment on 22-1-1983. Before this, the defendant No. 2 was present in person on 23-11-1982 when his Advocate Mr. N.K. Jatoi had withdrawn his power. Although his application for adjournment was rejected, still he had sufficient time to engage another Advocate and apply for leave to defend before the judgment was announced on 22-1-1983 i.e. after about two months of his first appearance before the Court. The defendant No.2 has alleged in his affidavit `that the delay of twelve months in filing the application for setting aside ex parte decree was occasioned due to illness. But according to his own averment in the affidavit he was ill for two months only from 23-11-1983. The medical certificate produced by him alongwith this application shows that he was suffering from hypertension and was under treatment from 24-11-1982 to 1-4-1983. But the application for setting aside ex parts decree was filed on 5-1-1984 i.e. after eight months of his recovery from illness. Hence there was no reasonable ground for the defendants to have delayed this application by such a long time. Mr. A.R. Akhtar has argued that his application under Order IX, rule 13, C.P.C. may be treated as an application under rule 4 of Order XXXVII, C.P.C. and may be decided as such and that this application and C . M . A . No. 3032 of 1984 for leave to defend may be decided together as in fact he should made only one application for setting aside decree as well as for seeking leave to defend under the said rule. He has also raised legal objections to the validity of the judgment and decree passed by the learned District Judge exercising power of the Special Court. It has been argued that no decree could have been passed without proper service of summons on defendants Nos. 1 and

3. This argument is without any substance, because defendant No.2 is admittedly Director both of defendant No.1 company and defendant No.3 company. Both the defendants Nos. 1 and 3 are limited companies. Defendant No.2 had originally signed Vakalatnama in favour of Mr. N.K. Jatoi for himself as well as for defendants Nos. 1 and 3 describing himself as Managing Director of both these defendants. Even the Vakalatnama in favour Mr. A.R. Akhtar has been signed by defendant No.2 for himself as well as for defendants Nos. 1 and

3. Till this day no separate Vakalatnama has been filed on behalf of defendants Nos.l and

3. On the contrary the application C.M.A. No.5249 of 1984, dated 21-10-1984 filed on behalf of the defendants shows that defendant No.2 is acting not only for himself but also for defendants Nos. 1 and 3 that is why he stated in the above application that:- "This Honourable Court be pleased to treat the application for lease to defend filed by defendant No.2 as also the application on behalf all the defendants as defendant No.2 is also a Director in defendant No .3 and the Managing Director in defendant No.1." From the above averment it would be absolutely clear that defendant No.2 is not a separate entity from defendants Nos. 1 and

3. Hence service of summons on defendant No. 2 was sufficient service on defendants Nos. 1 and 3 and it cannot be pleaded that the judgment or decree was bad for non-service of summons on defendants Nos. 1 and

3. The next argument of Mr. A.R. Akhtar is that the decree which was signed by the learned District Judge on 26-3-1983 was without jurisdiction, because on this date ho was no more competent to act as Special Court, the jurisdiction having been changed on 30th January, 1983 vide Ordinance 11 of 1983. The learned counsel has not contested that the learned District Judge had jurisdiction to pass preliminary judgment on 22nd January, 1983. This judgment was passed and announced before Ordinance II of 1983 came into force. It is not the case of defendants that for the above stated reason the judgment is without jurisdiction. Only validity of the decree has been challenged Now the decree has been drawn in accordance with judgment, dated 22-1-1983. Hence under rule 7 of Order XX, C.P.C. the decree shat be deemed to bear the same date as the date of the judgment. Rule 7 reads as under:- "

7. Date of decree.-- The decree shall bear date the day on which the judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree." In view of the above provisions the date of the decree should be same as the date of the judgment, irrespective of the fact as t when it is actually signed. Moreover the fact that the decree has been signed by the Judge of the Special Court on the date when he was not competent to act as Special Judge, would not nullify the judgment which was passed with jurisdiction on a date when he was competent to act as a Special Judge. Hence the mere fact that the decree was signed by the Judge after he had ceased to the Special Court, would not be an irregularity of the nature which shall vitiate the judgment. That Court was competent to pass the judgment on the relevant date. If the decree has not been drawn in accordance with the judgment, then it shall be liable to be corrected in exercise of powers under sections 152 and 153 of the C.P.C. If this Court feels that the decree has been signed by a Judge who, on the date of signing, was not competent to sign it, it can be re-drawn and be laid before a competent Judge for signature. Thus, the omission of the office to lay the decree before a competent Judge for signature is a clerical mistake which can be corrected by this Court at any time of its own emotion or on the application of any of the parties, in exercise of powers under sections 152 and 153, C.P.C. This objection also has no substance and must be rejected as such. It has further been argued by Mr. A.R. Akhtar that the defendants should not suffer on account of wrong advice of his counsel i.e. Mr. N.K. Jatoi. It is not stated in his affidavit by defendant No.2 as to how he was misguided by Mr. N . K . Jatoi. On 23-11-1982: Mr. N.K. Jatoi has stated before the Court in presence of defendants No.2, that the defendants have not given any instructions to him and that the papers have been returned by him. This statement in writing was given by Mr. N.K. Jatoi to the Court in presence of defendant No.2. The latter cannot now plead that he was misguided by the Advocate or that the advocate was responsible for failure to apply for leave to defend. Mr. N.K. Jatoi had clearly stated before the Court that he had received no instructions from the defendants.' It cannot, therefore, be pleaded that Mr. N . K . Jatoi had failed in his duty or had not acted, according to instructions of the defendants. For the above reasons I find no substance in this application which merits dismissal. C . M. A .I 3033 of 1984 is, therefore, dismissed. Even on merits this was not a case in which leave to defend could have been granted to the defendant. The suit has been based by the plaintiffs on certain documents in which the liability for the decretal amount has been almost admitted by the defendants. One such document is Annexure 'M' with the plaint, which is a letter addressed by Director of defendant No.1 to the Manager of the plaintiffs. The subject of this letter is: "Overdraft outstand Rs.10,06,111.56 I.A.F.B. outstanding Rs.51,400." Below this subject, Mr. M.A. Baig, the Director of the defendant- company, has written to request the plaintiffs to prepare the re-payment schedule of the loan. The liability of defendant No.1 is not denied in this letter. Only a request has been made that schedule for re-payment may be agreed upon. There is another letter which is Annexure 'T' with the plaint addressed by Director of defendant No.1 to Mr. Syed Iqbal Ahmed, Advocate for the plaintiff. This letter was written on behalf of defendant No.1 by the way of reply to the plaintiffs' notice. It is written on the letter form of the defendant-company and is to the following effect:- 'PHONE: 434886 TELE: 2880 AHS PK P.O. BOX 2008, KARACHI-8, PAKISTAN Syed Iqbal Ahmed & Co., Advocates, 1-Bandukwala Building No.5, I.I. Chundrigar Road, Karachi. Dear Sir, We refer to your letter, dated 2nd March, 1982 regarding the outstanding dues of Rs.11,55,053.18 of Bank of Credit and Commerce International (Overseas) Ltd. Muhammadi House, Karachi and would like to inform you that the Chairman of our Company Mr. Khalid A. Hussain is out of Karachi at the moment because his father is seriously ill due to gangrene his leg has been ampulated. We, therefore, request you to kindly grant us at least one month's time, when Mr. Khalid A. Hussain comes back the re payment schedule will be worked out. Thanking you, we remain, Yours faithfully, RUDOLF DONHILL LIMITED. (Sd.) M.A.S. Baig. In view of this admission it would have been futile to give leave to the defendants to defend the suit. I, therefore, find no substance in any of the applications filed on behalf of the defendant. Consequently the two applications namely, C.M.As. Nos. 3032 of 1984 and 3033 of 1984 are dismissed. C.M.A. No. 5249 of 1984, has under the circum stances, become infructuous and is also dismissed as such. Since the defendants have failed to deposit the decretal amount within the time specified in the preliminary decree, the plaintiffs are entitled to final decree as contemplated by rule 4 of Order XXXIV, C . P . C . C . M . A . No. 3031 of 1984 filed on behalf of the plaintiffs is, therefore, allowed. Final decree shall be drawn in terms of the prayer made in the application under Order XXXIV, C.P.C. All the applications and the suit stand decided finally. A.A. Suit decreed.