P L D 1998 Lahore 118 (PLP)

It was as early as on 31-1-1981 that Sikandar Mahmood and his mother Mst. Asghari Begum alongwith eight other heirs of Muhammad Sharif deceased, six of whom were minor at that time, brought a suit against Saeed Hassan and others, including Province of Punjab through Collector, District Sargodha, for a declaration to the effect that they were the owners in possession of shop No.7-S-140-A, Block No.4, Kachehry -Bazar, Sargodha, fully described in the headnote thereof, that defendants Nos.1 to 5 had nothing to do therewith and that they were bound to abide by the terms of the agreement/deed of association? Dated 21-5-1967. As a consequential relief, the plaintiffs prayed for the issuance of a perpetual/mandatory injunction directing defendants Nos. l to 5 to get the said half of the shop in dispute transferred in their names through Settlement Department and get it registered and also to restrain from claiming themselves to be the owners of the entire shop or interfering with the possession of the plaintiffs thereon. They also sued for the recovery of a sum of Rs.6,951 out of the amount of Rs.21,500 as per the orders dated 21-5-1980 passed by the Hon'ble Supreme Court.

2. This suit was contested _ by the defendants tooth and nail and a comparison of the pleadings of the parties finally resulted in putting them to following issues:- (1) Whether this suit is time-barred? OPD (2) Whether this suit is not maintainable in its present form? OPD (3) Whether this suit is bad for non joinder of necessary parties? OPD (4) Whether the agreement dated 6-3-1964 was executed by deceased Muhammad Hussain, if it is proved whether the said document is without consideration and cannot be acted upon? OPD (5) Whether the acknowledgement dated 6-4-1967 made in the written reply presented in the Court of Settlement Commissioner is time-barred? OPD (6) Whether the acknowledgement made in agreement dated 21-10-1967 is time-barred? OPD (7) Whether the agreement dated 26-5-1967 is without consideration and the acknowledgement made therein is time-barred? OPD (8) Whether the receipt dated 5-1-1967 is a forged document? OPD (9) Whether the plaintiffs are owners of the property in suit to the extent of? its half share? OPP (9-A) Whether the plaintiff is entitled to recover Rs.6,951 as claimed? OPP (9-B) Whether the suit is bad for mis joinder of necessary parties? OPD (9-C) Whether the suit is hit by section 11 of C.P.C.? OPD (9-D) Whether the Civil Court lacks the jurisdiction to entertain and try the suit? OPD (10) Relief. It took many years to conclude the trial and it was on 9-4-1988 that Mr. Ziaullah Khan Niazi, the then learned Civil Judge 1st Class Sargodha, decreed the plaintiffs' suit with costs by means of his detailed judgment a perusal of which speaks of the hard labour he had to put in for a proper appreciation of the matter, by giving well-considered findings on the issues one by one.

4. The defendants being aggrieved from this judgment and decree preferred an appeal as late as on 5-4-1989 and with the memo. of appeal they moved an application for condonation of delay stating therein that although they had moved the application for a certified copy of the judgment on 10-4-1988 i.e. on the very next day the judgment was delivered, but every time the Copying Agency told them that the judgment was not yet ready and it was finally on 4-3-1989 that the copy was prepared but handed over to the appellants on 9-3-1989. It was, therefore, prayed that the delay, if any, in filing the appeal be condoned.

5. It is, however, pertinent to note that the learned Additional District Judge, Sargodha before whom the appeal was put up on 5-4-1989 without there being any office note or objection with regard to the appeal having been filed beyond time, admitted it to regular hearing by passing the following short order:-- COUNCIL APPELLANT PRESENT ? AFTER INITIAL HEARING -LEGAL ISSUES WERE RAISED WHICH NEED CONSIDERATION - THE APPEAL IS ACCEPTED FOR HEARING Notices were directed to be issued for 24-4-1989 in the names of the respondents against process fee and also through registered letters. On that date, it was observed that the respondents had not been served and the notices/summonses issued in their names had not been received back after service; that the official at fault be called upon to submit an explanation and that fresh summonses/notices be issued in the names of the respondents for 10-5-1989. On that date again it was observed that respondents could not be served in spite of summones having been sent through registered letters several times. The learned Additional District Judge, therefore, after making an observation that the serivce of the respondents was not possible in an ordinary manner directed that their service be affected through citation in the daily "Wafaaq" for 24-5-1989. Since proclamation fee etc. was deposited late, the respondents could not be served. It was, therefore, directed that the respondents be served for 14-6-1989. On that date, the proclamation having been received and respondents having failed to turn up, they were proceeded against ex parte. The arguments were heard on 18-6-1989 and the appeal was accepted. The judgment and decree of the learned Civil Judge were set aside and the suit of the plaintiffs/respondents was dismissed with costs.

6. It was on 1-7-1989 that the plaintiffs/respondent moved an application under O.XLI, Rule 21 read with Order IX, Rule 13, C.P.Code for setting aside this judgment and decree dated 18-6-1989 and re-hearing of the appeal pleading therein inter alia (i) that they were not properly served; (ii) that the address on which notices/summonses or registered letters were issued was not correct which fact was abundantly borne out from the report on the registered letters even, .because the plaintiffs/respondents had since long shifted their residence to Block No. l l in Sargodha city and this fact was .fully known to the appellants and they also knew that the plaintiffs/respondents were running their business in the disputed Shop No. 140-A situated in Kachehry Bazar, Sargodha but in spite of all that, the defendants/appellants supplied wrong address of the plaintiffs; (iii) that even the orders with regard to their service through citation were wrong and misconceived because before passing such orders it was necessary for the Court to have satisfied itself that all efforts to effect service in the ordinary manner had failed and it was only after having verified this fact that substituted service could be resorted to; (iv) that some of the respondents who were initially minor had attained majority during the pendency of the proceedings but they were also sued as minors while those who were minors were sued without a proper guardian-adlitem having been appointed; and (v) that for all these reasons, judgment and decree passed ex parte by the Appellate Court was liable to be set aside. Along with this application, they moved another application for suspension of the operation of the judgment and decree.

7. The learned Additional District Judge , in great haste in which he apparently was, without adverting to the points raised in this application and after referring to unnecessary facts and circumstances dismissed this application by means of his short perfunctory order dated 5-7-1989.

8. It was in these circumstances that this F.A.O. was filed alleging inter alia that the appeal before the learned Additional District Judge was hopelessly barred by time; that the appellants had not been served; that when the appellants applied for the re-hearing of the appeal, their application was dismissed without assigning any cogent reason and that two of the plaintiffs were minors but the appeal against them was decided without the appointment of their guardian-ad- litem. 9. have given a patient hearing to the learned counsel for the parties The learned counsel for the appellants has urged with vehemence that substituted service effected by publication of a notice in a local newspaper with a very little circulation, having been resorted to without first satisfying that the personal service of the plaintiffs/respondents was not possible could not be held valid service particularly in the absence of any evidence on record to show that the present appellants/plaintiffs were keeping out of way for the purpose of avoiding service. For this, he has relied on a chain of authorities including the leading judgment in Muhammad Aslant v. Additional Distirct Jufge etc. 1979 SCMR 85, Messrs Baltistan Boutique through its Proprietor v. District and Sessions Judge, Karachi and 2 others 1987 CLC 428 and Haji Akbar and others v. Gul Barad and 7 others 1996 SCMR 1703. The learned counsel for defendants/respondents has not been able to justify the direction of the learned Additional District Judge for substituted service, on record. The resume given by me of the circumstances in which the substituted service was directed leads me to one and the only irresistible conclusion that the learned Additional District Judge totally lost sight of the provisions of Order V, rule 20, C.P.Code. He did not come to a definite conclusion that the respondents were avoiding service wilfully and only after observing that respondents could not be served in spite of summonses having been sent through registered letters several times, he opted to proceed for getting them served through citation. The better course for him would have been first to have awaited the return of the process issued in the names of the respondents and if there was a report that they were not available on the given address, ask the appellants/defendants to furnish their fresh and complete address, make further efforts to get their personal service effected in the ordinary manner and then only after satisfying himself and verifying the fact that all efforts made in this behalf for effecting their service in ordinary manner had failed that the substituted service could be resorted to. Record must show the efforts made to that effect for securing personal service and in the absence thereof, citation in the newspaper would not be sustainable. For substituted service also, efforts should have first been made to get the service effected by affixing a copy of the summons/notice-on the notice board of the Court house and another copy on the outer door of the house where the respondents were known to have last resided and simultaneously therewith, citation could also be ordered. Similarly, publication in newspaper of insignificant circulation also could not justify the ex parte proceedings.

10. Another factor which was not taken care of by the learned Additional District Judge was that some of the respondents were shown as minors by the defendants/respondents themselves in their memo. of appeal and in case their guardian-ad-litem failed to turn up, it was the duty of the Presiding Officer to have adverted to the provisions of law as contained in Order XXXII, rule 3 of the C.P. Code. The authorities cited at the bar by the learned counsel for the defendants/respondents, Saadullah Khan and others v. Kaki Jan and others PLD 1962 (W. P.) Pesh. 171; Fatima Bibi and 7 others v. Jamilur Rehman PLD 1982 Quetta 7; Muhammad Din v. Sarfraz 1988 CLC 768; Kameen Khan and 15 others v. Ghazi Marjan and 9 others 1990 MLD 1865, Farhat Abbas v. Muhammad Shah etc. 1981 CLC 188 and Nadeem Shahid and 2 others v. Muhammad Sharif and another PLD 1986 Lah. 373 it may be submitted with respect, cannot be differed with in the circumstances of each case but they have obviously no bearing on the facts of the present case. In fact the pronouncement in the last-mentioned judgment PLD 1986 Lah. 373 helps the appellants rather than the defendants/respondents. It was held therein that there was no doubt that the rule (rule 3 or Order XXXII, C.P.C.) placed a duty on the Court to appoint a guardian ad litem of a minor in the suit having been brought against him and that the very object of the rule was that the minor goes by a proper representation and the Court is to appoint a proper person to be a guardian. After the learned Additional Distirct Judge had come to the conclusion that the plaintiffs/respondents were not turning up in spite of citation in the newspaper, it was necessary for him to have asked the appellants to move. an application for the appointment of afresh guardian-ad-litem but neither the appellants moved such an application nor were they so directed nor order in this behalf was so passed by the Additional District Judge of his own.

11. The learned Additional District Judge did not consider it worthwhile to advert to the allegations in this behalf by the plaintiffs/applicants in their application under Order XLI, rule 21, C.P.Code and hastened to reject their application. Any person who is major has the right to sue or be sued in his own name and it was so pleaded by the applicants in para. 7 of their.. application. There was as such obviously a miscarriage of justice.

12. As observed by me earlier, the learned Additional District Judge failed to appreciate that the appeal had been filed beyond limitation and the appellants had moved an application for condonation of delay. This application does not appear to have drawn the attention of the Court at all. It was expected of the Reader/Ahlmad to have made a note that the appeal appeared to be barred by time. There is no such report available on record nor does it appear that the learned counsel for the appellants drew the attention of the Court to this application for having a positive finding thereon. It was incumbent on the defendants/respondents to have satisfied the Court that the delay in filing the appeal was duly explained and there was sufficient cause for its condonation. The sufficient cause would be that which was beyond the control of a person or was unavoidable despite care and caution. The mere allegation that Copying Agency had been clainung that the judgment was not written or was not ready could not help the defendants/appellants unless so established with evidence. No steps appear to have been taken by the appellants/defendants in this behalf.

13. For all these reasons I cannot but accept this F.A.O. and it is accordingly accepted. The impugned order dated 5-7-1989 is set aside and the case is remitted to the Additional District Judge for re-hearing of the appeal on merits.

14. I am told that the Additional District Judge who passed the impugned order is no longer available at Sargodha. The learned District Judge, Sargodha shall, therefore, either hear this matter himself or entrust it to some other Additional District Judge for disposal according to law preferably within a period of three months from the date a copy of this judgment is received. The plaintiff shall be given an opportunity of being heard and file objections with regard to the limitation etc. The defendants/respondents shall bear the costs of the appellants.

15. A copy of this judgment shall also go to the learned Additional District Judge who passed the impugned order and decree. A.A./S-158/L Case remanded. (Khalil-ur-Rehman Ramday, J)