1997 PLP 926 (SCMR)

7. Against the above order, the respondent filed above civil miscellaneous appeal, which had been allowed by the learned Judge in Chambers by holding that there was no valid service of the notice and, therefore, the ex parte judgment/decree was not sustainable. It has also been observed that there was lapse, if any, on the part of the respondent's Advocate. After that, the appellant filed a petition for leave to appeal, which was granted for the above reason.

8. In support of the above appeal. Mr. Ali Akbar, learned A.S.C. appearing for the appellant, first submitted that since the diary dated 5‑8‑1985 of the Court of the learned Vth Senior Civil Judge quoted hereinabove indicates that the order was passed in the presence of the parties' counsel, wherein it was stated that the case was transferred to the Court of VIth Senior Civil Judge South and the case was put off to 4‑9‑1985, it was incumbent upon the parties or their counsel to appear before the transferee Court i.e. the VIth Senior Judge on 4‑9‑1985. His further submission was that failure on the part of any of the parties to put in appearance would not justify the issuance of court motion notice. Reliance has been placed by him on subsection (2) of section 24‑A, C.P.C., which reads as follows:‑‑‑ "(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their appearance before the Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located." A perusal of the above‑quoted subsection (2) shows that where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties are required to appear before the transferee Court on the date fixed by the transferor Court, but the transferor Court is required to direct the patties to appear before the transferee Court or the above date.

9. In furtherance of his above submission, Mr. Ali Akbar, has relied upon the case of S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150, wherein this Court, after quoting the relevant portion from the report of the Law Reforms Commission, 1958‑59, observed as follows:‑‑‑ "The language of section 25‑A, subsection (2) in fact reflects this purpose and seeks to achieve it by making it obligatory on the parties to get themselves informed of the further date of hearing and the Court where the case has been transferred. The only duty placed on the Court is to inform them so when they approach it for that purpose. There was no indication on the record that any defaulting defendant has approached any of the Courts for that purpose."

10. There is no doubt that the object of the enactment of the above provision in the Code of Civil Procedure is to eliminate that possibility of delay which occasioned on account of frequent transfer of cases from one Court to another in the subordinate judiciary. It imposes obligation on the part of the parties to appear before the transferee Court on the date specified by the transferor Court without the receipt of any Court motion notice of the transfer. Indeed on 5‑8‑1985 the learned Vth Senior Civil Judge recorded the above-quoted diary in the presence of the parties' counsel and stated therein that the case was transferred to the Court of VIth Senior Civil Judge, South. He had put off the case to 4‑9‑1985. In terms of above subsection (2) of section 24‑A, C.P.C., he should have directed the counsel of the parties to appear on 4‑9‑1985 before the transferee Court i.e. VIth Senior Civil Judge. Even if we were to overlook the above lapse on the part of the learned Vth Senior Civil Judge, we find that on 4‑9‑1985, none of the parties was present and, therefore, the suit was liable to be dismissed for non‑prosecution on the above date. The learned VIth Senior Civil Judge, instead of dismissing the suit, ordered issuance of Court motion notice to the parties. The above order was followed by the above aforementioned orders. In the above background, in our view, the appellant cannot press the provision of section 24‑A (2) of the C.P.C.

11. It was next contended that since the Court motion notice was served on the dealing clerk of the Law Officer of the respondent, the learned trial Court was justified in holding the service good. In this regard, it may be pertinent to mention that the appellant in the memo. of plaint has described the respondent as under:‑‑‑. "Karachi Electric Supply Corporation Limited, a company incorporated under the Companies Act, 1913 with its registered office at Aimai House, Abdullah Haroon Road, Karachi." The above description of the respondent i.e., mentioning of the registered office is in terms of Order XXIX, Rule 2, C.P.C., which provides subject to the any statutory provision regulating service of process where the suit is against a Corporation, the summons may be served‑‑ (a) on the secretary, or no any director, or other principal officer of the Corporation, or (b) by leaving it or sending it by post addressed to the Corporation at the registered office, or if there is no registered office then at the place where the Corporation carries on business.

12. In this regard, it may be pertinent to refer to the relevant provisions of Orders VII and VIII, Rule 19, C.P.C. Order VII lays down that any plaint or original petition shall be accompanied. by a proceeding giving an address on which service of notice, summons or other process may be made on the plaintiff or the petitioner, whereas Rule 21 of the above Order provides that failure on the part of the plaintiff or the petitioner shall entail the dismissal of the suit or rejection of the petitioner by the Courts suo motu or at the behest of any of the parts. It may further be observed that Rule 22 of the above Order VII lays down that where a party is not found at the address given by him for service and no agent or elder member of his family on whom the notice, summons or other process can be served is found to be present, a copy of the notice, summons or the process shall be affixed on the outer door of the house Rule 22(1). It may further be pointed out that sub‑rule (2) of Rule 22 lays down that if on the date fixed such party is not present, another date shall be fixed and a copy of notice, summons or other process shall be sent to the said address by registered post and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served. It may also be noticed that Rule 23 of the above Order provides for the service of the notice, summons or other process on a pleader engaged by the party in terms of Order III, Rule 5, which provides that "Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and unless the Court otherwise directs, shall be a$ effectual for all purposes as if the same had been given to or served on the party in person'. Similarly Rule 11 of Order VIII enjoins the filing of address by a defendant after the service of the summons or notice in a suit or other proceedings, whereas Rule 12 of the above Order provides penalty by laying down where a party fails to file an address for. service as provided in the preceding rule, he shall be liable to have his defence, if any struck off and to be placed in the same position as if he had not defended. It also provides under sub rule (2) that the Court may pass the above order suo motu or on the application of any of the parties.

13. In the present case, the respondent filed written statement, in which the address for service given was as follows:‑‑‑ "Chowdhry Bajwa & Co., Advocates, Maina Chamber, 1st Floor, 59‑60/C Tariq Road, Karachi. " It terms of the above provision of the C.P.C., the respondents should have been served with the Court motion notice at the above address in the manner provided in Order III, Rule 5, C.P.C., which was not done. Instead of that, the notice was allegedly served at the office of the Law Officer, situated in Civic Centre. which is located several miles away from the registered office mentioned in the title of the plaint. The relevant Court motion notice which is at page 100 of the paper book does not give the address of the respondent, either of the registered office or of the Civic Centre. There is no order of the Court, whereby the bailiff was authorised to serve the respondent at the address other than which was given in the title of the plaint by the appellant. The High Court has adversely commented upon the factum of above service for the reason that the appellant himself was a Law Officer working in that Department before his services were terminated. In our view, it is not necessary to make any adverse observation about the bona fide of the appellant in this behalf as the above service cannot be sustained in view of the above provision of the C.P.C.

14. It was also urged by Mr. Ali Akbar that registered office does not mean only one building but it may include several buildings. According to him, the opening of the office of Law‑cum‑Labour Officer in the Civic Centre is an extension of the registered office.

15. The above contention is devoid of any force. The term "registered office" has a definite legal connotation under the Companies Ordinance. It is the requirement of law that every company should have registered office, the address of which is to be furnished to the Registrar of Joint Stock Companies. The term 'registered office' has reference to its location. Since the registered office of the respondent even admittedly by the appellant in his plaint as well as in his memo, of petition before this Court is Aimai House, Abdullah Haroon Road, Karachi, the Law Officer's Office at the Civic Centre cannot be treated as a part of registered office either factually or legally.

16. It was further submitted by Mr. Ali Akbar that the practice obtaining in the respondent Corporation is that the summons and notices are received by the Law Department and not by the Head Office.

17. There is no such material on record in support of the above contention. In any case, any private practice cannot negate the provisions of the C.P.C. We are, therefore, of the view that the Court motion notice for 11‑2‑1987 allegedly affected by the bailiff at the respondent's office at Civic Centre could not have been treated as good service. There was no backing of the order of law, whereby the bailiff at his option could effect the service at the above address.

18. The learned Judge in Chambers has relied upon the cases of this Court, namely, Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR

883. In the former case, this Court while construing provision of Order IX, Rule 6 and Order XVII, Rule 2, C.P.C. has held that ex parte proceedings can be ordered only in respect of defendant's absence on the date fixed in the summons or on the date to which the case stands adjourned by the Court, but if the day fixed for hearing is declared as holiday, the Court taking the case on the following day without notice to the defendant cannot order ex parte proceedings and such an order is not valid and was liable to be set aside. In the above case, the ex parte judgment/decree was set aside. Whereas, in the latter case, this Court while construing the provision of Order IX, Rule 9, C.P.C. has held that the rules of procedure are not to be too technically applied but are to be construed to foster the cause of justice and that a party is not to be visited with penalty of being deprived of a fair trial on merits except where there was positive evidence of negligence beyond explanation.

19. Mr. Ali Akbar has referred to the case of Mst. Bakht Bano v. Mst. Jamila alias Afsar Jan and others PLD 1981 SC 364 and the case of Ch. Nazir Ahmad v. Abdul Karim and another PLD 1990 SC 42: In the above first case, inter alia it has been held that non‑affecting of service on the prescribed form was more irregularity not affecting the validity of the,service. Whereas, in the second case, the question in issue was as to the extension of time under section 149, C.P.C., for making up deficient court‑fee. None of the above two cases has any relevance.

20. The view taken by the learned Judge in Chambers gets support from the above two judgments relied upon him. However, we may observe that we are not inclined to subscribe to the observation of the learned Judge in Chambers that a party cannot be penalized for the negligence of his Advocate. If the Court motion notice would have been served on the Advocate of the respondent and if he would not have appeared without any sufficient cause, the respondent would have no case for setting aside of the above ex parte judgment/decree. A party does not discharge his obligation to conduct the case or to defend it by engaging an Advocate but it owes a duty to the Court to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of his Advocate will be binding on him.

21. It was next contended that the effect of incorporation of proviso 2 to Rule 13 of Order IX, C.P.C., by Law Reforms Ordinance, 1972, is that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of the summons if the Court is satisfied for the reasons to be recorded that the defendant had knowledge of the date of hearing and sufficient time to appear on that and answer the claim.

22. No doubt that the above provision has modified the original provision of Order IX, Rule 13, C.P.C., with the object to eliminate delay in the disposal of the suits, however, in the present case, there is no material on record to show that factually the respondent had the knowledge of the dates of hearing on which the suit proceeded ex parte and a decree was passed. In the absence of any material to satisfy the requirement of the above proviso, the same cannot be pressed into service.

23. It was also contended that the respondent's application under Order IX, Rule 13, C.P.C., was not competent as the same could have been filed for setting aside a decree passed ex pane under Order IX, Rule 6, C.P.C., and Order XVII, Rule 2 but it could not have been pressed into service for setting aside a decree under Order IX, Rule 12 or Order XVII, Rule 3, C.P.C.

24. The impugned ex pane decree cannot be treated as ex pane decree in t terms of Rule 12 of Order XIII or Rule 3 of Order XVII as we have held that the . service of the Court motion notice was not effected validly at the proper address.

25. The upshot of the above discussion is that the appeal fails and the judgment of the learned Judge in Chambers is maintained. The case is remanded to the learned Civil Judge concerned in terms of the impugned judgment with the direction to dispose of the suit within a period of six months from the date of receipt of copy of this judgment as the matter is under litigation since 1983 and I the appellant appears to be an old person.

26. Before concluding the above judgment, we observe it appears that the subordinate Courts are not following the provision of section 24‑A(2), C.P.C., inasmuch as the transferor Court though specifies the next date of hearing but does not give direction in terms of the above provision to the parties to appear before the transferee Court, with the result that some of the parties do not appear and the cases are lingered on for the service of Court motion notice. In the present case, the Court motion notice could not be served on the respondent in terms of the C.P.C., in spite of expiry of nearly 1‑1/2 years from the date of the transfer of the suit from the Court of learned Vth Senior Civil Judge to the Court of learned VIth Senior Civil Judge. It will be appropriate that the office may, send a copy of this judgment to the learned Chief Justices of the High Courts for drawing their attention to the above aspect and if they feel it is proper to issue instructions to the subordinate Courts, they may do so. A.A./S‑1084/S Appeal dismissed.