P L D 1958 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.‑This is a certificated appeal by the defendant in the suit under section 110 of the Code of Civil Procedure from a judgment and decree of the High Court of West Pakistan at Lahore. The facts of this case shortly, with regard to which there is no dispute, may be stated as follows: ‑ The respondent, who is the plaintiff in the suit, Kanwar Latif Ahmad Khan, entered into a contract, dated the 2nd April 1949, with the Manager, Punjab Cold Storage, Grand Trunk Road, Baghbanpura, Lahore, representing the Director of Agri culture, West Punjab, under the terms of which the Manager was to supply Kanwar Latif Ahmad Khan all the ice produced by the storage at a stipulated price during the period of the contract, which was from the 3rd April 1949 to 15th October 1949. The daily out put of ice was expected to be 100 blooks of 31 maunds each. There are other terms and conditions of the contract which it is not necessary to state here, except one under which the purchaser of ice was required to deposit a sum of Rs. 5,000 as security for the due performance of the agreement, which the respondent did. The respondent alleged that this contract was not fulfilled by the appellant and so on the 4th November 1952, he presented an application accompanied with a plaint for permission to sue as a pauper, as required by rules 1 to 3, Order XXXIII of the Code of Civil Procedure. In the plaint the plaintiff stated that the Cold Storage Management had committed a breach of the contract having failed to fulfil the vital condition of agreement by refusing to supply the stipulated quantity of the ice to the plaintiff. This was owing to the fact that the electrical energy that was to be consumed in the manufacture of ice for supply to the plaintiff was diverted to feed a new chamber constructed in April 1949 by the Department resulting in the failure to produce the requisite quantity of ice. The plaintiff, therefore, claimed the following sum as damages, as made out in the plaint, namely: Rs. (1) Hiring of conveyance beforehand 2,500 (2) Loss of profits 15,000 (3) Damages paid for breach of contract with third parties 500

18,000 (4) Security deposit 5,000 Total 23,000 The plaintiff also stated in the plaint that he had given requisite notice under section 80 of the Code of Civil Procedure to the Collector, Lahore. The Court on receipt of the application for pauperism recorded the following order: ‑ "The application be registered. Notice be issued to the opposite party for the 3rd January 1953, on receipt of process fee. A notice be also issued to the Collector. Dated the 4th November 1952". On the 3rd January as the Presiding Officer was on leave, the case was adjourned to 19th January 1953. The next order recorded was as follows "Mian Inayat Ullah, Advocate for the plaintiff, is present. On the last date of hearing I was on leave. Service has not been effected on the defendant, not even has the report been received back. Now notice be issued again to him for the 18th February 1953, without payment of process fee. Report regarding pauperism be called. Dated the 19th January 1953". On the next date, namely, the 18th February 1953, the Court recorded the following order: ‑ "The applicant with Mian Inayat Ullah is present. Someone received the registered envelope on behalf of the defendant and put his initials but did not write his designation. Under the circumstances, it should be presumed that some competent person has accepted it on behalf of the defendant. Ex parte proceedings be taken against the defendant. The report in respect of pauperism of the applicant has not been received back from the Collector. It be awaited for the 16th March 1953. Reminder be sent. Dated the 18th February 1953". On the following date as the Presiding Officer of the Court was transferred, the case was adjourned to the 14th of April. On the next date, the following order was recorded by the Court: ‑ "The applicant is present. No one is present for the defendant. The report from the Collector has been received. The applicant is a pauper. The applicant is allowed to sue in forma pauperis. The suit be registered. Dated the 18th May 1953. P. S.‑Evidence in ex parte proceedings to come up . on the 2nd of July 1953". The Court then proceeded to take ex parte evidence against the defendant in the suit, who is the appellant before us, on the 2nd July and the 25th July and on the latter date recorded an ex parte decree for Rs. 23,000 with costs against the appellant. The respondent then applied for execution of the ex parte decree, upon which the appellant on 26th October 1953, filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree: This was dismissed for default on the 17th December 1953, and an application for restoration of this application is said to be still pending. The appellant also filed an objection to the execution of the decree, which was rejected and ultimately they filed a regular appeal to the High Court against the ex parte decree being Regular First Appeal No. 97 of 1953 and a Miscellaneous Appeal against the order rejecting their objection to the execution of the decree, which were heard together and dismissed with costs. The notice that was issued by the trial Court by its order, dated the 4th November 1952, on the application of the respondent for permission to sue as a pauper and repeated by the Senior Civil Judge by his order, dated the J,9th January 1953, was, according to the High Court, one under Order XXXIII, rule 6 of the Code. 6f Civil Procedure. This notice, according to rule 6,, is notice of the day for receiving evidence of applicant's pauperism and the form of this notice is No. 12 and is given in App. H to the: Code of Civil Procedure and runs as follows :‑ "NOTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF,:PAUPERISM (O. 33, R. 6) (Title) To Whereas has applied to this Court for per mission to institute a suit against in forma pauperis under Order XXXIII of the Code of Civil Procedure, 1908; and whereas the. Court sees no reason to reject the application and whereas the day of 19 has been fixed for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence, which may be adduced in disproof thereof; Notice is hereby given to you under rule 6 of Order XXXIII that in case you may wish to offer any evidence to disprove the pauperism of the applicant, you may do so on appearing in this Court on the said day of 19 Given under my hand and the seal of the Court, this day of 19Judge", The High Court disposed of ‑the appeal on the following findings as recorded by them :‑ (1) "We are, therefore, of the opinion that the notice which was screed on the defendant on 9th February 1953, accom panied by a copy of the plaint and a list of the property of the plaintiff was sufficient service of a summons in accordance with the provisions of section 27, Civil P. C., notifying to the defendant to appear and answer the claim of the plaintiff in the suit. Consequently, if the defendant remained in default thereafter, it was not necessary for the trial Court to issue a fresh summons after it granted the application of the plaintiff to sue in forma pauperis on 18th of May 1953". (2) "We are of the opinion that in an appeal from an ex pane decree the appellant can challenge the order under which ex parse proceedings were taken against him on the ground of error, defect or irregularity within the meaning of section 105 of the Civil P. C." With the second finding, however, Kayani, J. did not asso ciate himself, as he did not consider it necessary for the purpose of the present appeal and he left it open, evidently because the appellant's application under Order IX, rule 13, was dismissed for default and did not proceed to decision and no question of application of any principle of res judicata to the present case arose. The firs, finding, however, was assailed by the learned Advocate for the appellant as erroneous and we agree with him. The only notice that was served on the defendant‑appellant, as stated by the High Court itself, was one under Order XXXIII, rule 6 of the Code of Civil Procedure, the form of which has been reproduced above and from which it is clear that the date mentioned in the notice was fixed for receiving any evidence that the defendant might offer to disprove the pauperism of the applicant. The mere fact that the application for pauperism, which was served on the defendant, was accompanied with a copy of the plaint, which was only a compliance with B Order XXXIII, does not make a difference. On that date the application for pauperism only was registered and the suit could not be registered, which could not be done before the 18th of May 1953, when the question of pauperism was decided. Section 27 of the Code of Civil Procedure lays down "Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed". and Order V, rule 1, provides "When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified". It is clear from these two provisions that a summons to the defendant to appear and answer the claim can only be issued, after a suit has been `duly' instituted. Until the plaint is registered, a suit cannot be said to be duly instituted under section 27 and Order V, rule 1 of the Code of Civil Procedure, stage is not reached for issue of a summons on the defend to answer the claim. This was the view, though on, slightly different facts, held by the Calcutta High Court in the case of Surendra Prasad Lahiri Chowdhury v. Aftab Uddin Ahmad (A I R 1922 Cal. 234: 26 C WIN 391) and we agree with this view. At the stage at which the trial Court had issued the notice under rule 6 of Order XXXIII, Civil P. C., the plaint was not registered and the defendant could not b;, called upon to answer the claim. He was only required to offer evidence with regard to the alleged pauperism of the plaintiff. There was just the possibility of the plaintiff having not been adjudged a pauper and being not in a position to pay proper Court‑fee, in which case it would be incumbent on the Court to reject his plaint. The trial Court, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction in prematurely putting down the case for ex parte hearing, which ultimately resulted in the ex parte decree under appeal. The trial Court should have, after deciding the question of pauperism and registering the plaint, issued a proper summons to the defendant under form No. 1 or 2, Appendix B in the First Schedule to the a Civil P. C., as required by section 27 and Order V rule 1 of the' Code of Civil Procedure, calling upon him to answer the claim. As this was not done, the whole trial was vitiated and the ex parte decree cannot be sustained. It was conceded by the learned Advocate for the respondent that the decision of this case ultimately turns on the question whether a separate notice or summons after registration of the suit was necessary. In the view that we have taken on this point it is not necessary to review the cases cited, which with divergent views, all related to the question whether in an appeal against an ex parte decree objection to the order putting down the case for ex parte hearing can be taken when in a previous appeal against the order it had already been raised and decided against the party. In most of those cases the principle of res judicata was sought to be applied. In the present case there was no previous appeal and on the facts the principle does not apply. In a regular appeal against a decree normally it is open to the party to take all available points of objection to the decree. In the result this appeal is allowed, the ex parte decree is set aside and the case sent back to the Court of first instance for trial in accordance with law after issue of proper summons on the defendant. The costs of this appeal will abide the result. A. H. Appeal allowed.