1989 PLP 398 (CLC)

On the other hand Mr. M. Zubair Quraishy, learned counsel for the respondent has contended that factually the applicants 2 and 3/defendants 2 and 3 were served with the summons and that in fact they had the knolwedge and were represented by applicant No.l/defendant No.l.

4. Adverting to the above submission of the learned counsel for the applicants that since applicants 2 and 3 were not served with the summons, neither the ex parte order nor ex parte judgmentldecree can be sustained, it may be observed that it is an admitted position A that there is nothing on record of the suit to indicate that factually applicants 2 and 3 were served with the summons of the suit. However, learned counsel for the respondent, Mr. M. Zubair Quraishy has invited my attention to the counter‑affidavit filed by applicant No.l to the aforesaid application for interlocutory order, on the top of which applicant No.l by his hand has added the words with his initial "on behalf of defendants Nos.l and 2" . It has, therefore, been contended by him that this amounts to admission of the service of the summons on applicants Nos.2. He has also produced before me two registration receipts bearing Nos.45 and 46 in respect of two covers sent under acknowledgement due addressed to Applicants Nos.2 and

3. On the above two receipts there is postal stamp of 14‑12‑1985. It was, therefore, submitted ‑ by him that in any case the above registration receipts prove the factum of the service of the summons on applicants 2 and

3. In furtherance of his above submission he has referred to the case of Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others reported in 1979 CLC 48, in which a learned Single Judge of this Court held that if the summons are not returned and a postal receipt in respect of transmission of summons is produced in evidence it raises presumption that the addressee must have received the same in terms of Order V, rule 10‑A, C.P.C. He has also referred to the case of Muhammad Hanif v. Baqa Muhammad reported in PLD 1979 SC (AJ&K)

120. In the above case the Supreme Court of Azad Jammu and Kashmir inter alia observed that merely on the ground that the summons do not contain attestation, an ex parte decree cannot be set aside when the Court is satisfied that the defendant having knowledge of date of hearing and having sufficient time to appear on said date did not appear. 5‑ The question in issue is, as to whether principle of law enunciated in the above cited cases can be pressed into service. In the present case application for setting aside was filed by applicant No.l. In paras. 3, 5, 6, 7, 8 and 9 of the supporting affidavit the following averments were made: "(3) That process against defendants Nos.2 and 3 were never issued by this Honourable Court as such no process was served on Defendants Nos.2 and 3, therefore, the question of their attending this Honourable Court has never arisen. (5) That on 22‑12‑1985, I filed a counter‑affidavit, the copy was supplied to the other side and the matter was adjourned to 22‑1‑1986 for filing written statement and for hearing of the. injunction application and meanwhile re‑joinder, if any. (6) Order sheet dated 22‑12‑1985 does not mention anything with regard to the hearing of the injunction application which is not based on facts. (7) That on 22‑1‑1986, when I attended this Honourable Court at about 10‑45 a.m. and tried to file an application for enlargement of time for filing W.S. on the ground that the instructions from Islamabad could not be received due to shortage of time and the appointment of the Advocate was not possible without receiving instructions from Islamabad, the Court Clerk informed me that this case was called at 10‑30 a.m. and all the 3 defendants were marked absent and declared ex parte, although it is usual practice in the Civil Courts that when the date is fixed for filing W.S., the cases are normally kept aside till 1 p.m. and if the W.S. is not filed in the late hours then the defendants are marked absent. (8) That I sought instructions from Islamabad for engaging Defence Counsel but the Defence Counsel has not yet been nominated by the Government as the procedure is that normally, the concerned Department writes to the Ministry concerned who forwards the case to the Law Ministry at Islamabad, who is authorised to take decision for the appointment of Defence Counsel. In this case, the papers have reached Ministry of Commerce and the same are under process. (9) That when I made enquiries from this Honourable Court on 17‑2‑1986 1 was informed that an order on injunction application was also passed on 11‑1‑1986, although no re‑joinder was filed nor any arguments were placed nor any date was fixed on 11‑1‑1986, which is apparent from the case diary." The respondent in his counter‑affidavit had denied the above averments and had averred that applicant No.l had made statement on behalf of all the defendants in his counter‑affidavit to the injunction application. It may be advantageous to reproduce paras. 6 to 8 of the counter‑affidavit:‑ "(6) Thereafter, non from the defendants side attended this Hon'ble Court. They did not file any written statement on 22‑1‑1986. They also stopped participating in the proceedings after 11‑1‑1986, hence this Court was justified in declaring the defendants ex parte and the Judgment and Decree passed by this Hon'ble Court under the circumstances of the case is valid, proper and binding on the defendants. (7) I say that summons were sent to all the defendants. The defendants 1 and 2 are the real and main defendants who are directly connected with the reliefs claimed by me in the suit. The defendant No.3 Ministry of Commerce, Government of Pakistan, Islamabad is in the know of these proceedings as stated by Mr. Munir Hussain Bokhari in his affidavit. Besides Mr. Bokhari has been representing on behalf of all the defendants as he himself is a responsible Officer working under the defendants 2 and 3 and was acting on behalf of all the defendants. (8) I say that Mr. Bokhari himself filed counter‑affidavit on behalf of the defendants Nos.l and 2, hence the question of non‑service of defendant No.2 does not arise. The defendant No.3 was impleeded as pro forma defendant as the decree could easily have been passed against defendants Nos.l and 2 effectively. " There seems to be no doubt that there is nothing on record to indicate that the summons were served on applicants 2 and 3/defendants 2 and

3. However, the question which requires consideration is, as to whether in the instant case on .the basis of the above registration receipts which are produced before me and not before the trial Court or before the First Appellate Court or B from the fact that applicant No.l had appeared before the trial Court in connection with the hearing of the interlocutory application and had filed counter‑affidavit for himself and on behalf of applicant No. 2, it can be inferred that the above applicants Nos. 2 and 3 were served or had the knowledge of the date of hearing. At this stage, it may be pertinent to refer to proviso to sub‑rule (1) to rule 13 ofd Order 9, C.P.C. which reads as follows:‑ "Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason,to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim." The above proviso was added by Ordinance XII of 1972. It provides that no decree passed ex parte shall be set aside on the ground of any irregularity in the service of summons, if the Court is satisfied, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. The applicant No.l as observed hereinabove had appeared on the first date of hearing on 16‑12‑1985 and filed an application for adjournment. He also appeared on 22‑12‑1985 when he filed counter‑affidavit. After that as per para. 7 of the affidavit quoted hereinabove, he appeared on 22‑1‑1986 at about 10‑45 a.m. and tried to file an application for enlargement of time for filing written statement but he discovered that an ex parte order was already passed. Thereafter, he filed aforesaid application on 27‑2‑1986 for setting aside ex parte order and ex parte decree. Applicant No.l had filed the aforesaid counter‑affidavit to the interlocutory application for himself and on behalf of applicant No.2. The above two applicants belong to the same department and, factually, the applicant No.l is subordinate to applicant No.2 and, therefore, it can be presumed that he would not have filed the counter‑affidavit on behalf of applicant No.2 without the authority of the latter and, thus it can be concluded that applicant No.2 had the knowledge of the date of hearing of the suit. However, this cannot be applied to applicant No.3/defendant No.3. The Government of Pakistan can be served through the Secretary, Ministry of Commerce and not through either applicant No.l or applicant No.2. I may point out that it is the Government of Pakistan, which has to issue the import licence, though through applicant No.l or applicant No.2. In my view the Government of Pakistan is the main party in the suit and in fact applicants Nos.l and 2 were not necessary or proper parties. The Government through its Secretary of the Ministry concerned is sued and not subordinate officials in a suit in which relief is sought against the Government. I am, therefore, of the view that there was no service of the summons on applicant No.3 an defendant No.3. In the absence of anything on record of the learned trial Court, it was not justified to pass ex parte order at least against applicant No.3 on 22‑1‑1986. Even the above registration receipts were not before the trial Court. However, it was contended by Mr. Zubair, learned counsel for the respondent that factually applicant No.l had filed the Miscellaneous Appeal on his own behalf and on behalf of applicants 2 and 3 as he had signed the memo of appeal and so also the Vakalatnama ,of the Advocate for the applicants and, therefore, it should be held that the above applicants were served with the summons. The aforesaid Miscellaneous Appeal was filed by the three present applicants. The memo. of appeal was signed by applicant No.l alone and the Advocate for the applicants. The Vakalatnama was also signed by applicant No.l alone. The above contention has some force. The above appeal was dismissed on merits as well as on the ground that the appeal was time‑barred as it was filed on 22‑2‑1987 though the order was D passed on 9‑12‑1986. Alongwith the above appeal an application under section 5 of the Limitation Act was filed for the extension of time on f the ground that there was curfew in certain areas of Karachi at the relevant time, which ground was ,not accepted by the learned trial Court on account of vagueness. In any case, if I were to hold that applicant No.l was not authorised on behalf of applicant No.3 to represent, it must follow that the above appeal was not competently filed on behalf of applicant No‑

3. But this is not the end of the matter as the present revision has been filed by all the three applicants and the same has been signed not only by applicant No.l alone but by the Advocate for the applicants, Mr. Hasan Inamullah. He has also filed memo. of appearance on behalf of the applicants stating that "he has been authorised to represent the Government of Pakistan." Alongwith the memo. of appeal, he has filed photostat copy of a letter dated 29‑9‑1987 signed by OSD/Deputy Secretary, whereby Mr. Hasan Inamullah has been authorised to appear on behalf of the Chief Controller Imports and Exports, Government of Pakistan. He had also stated at the Bar that he could further file the letter indicating that he was authorised by the Government of Pakistan to file the above Revision. I am constrained to observe that in the lower Court the case was not defended in the manner in which a defendant is supposed to I defend, there are lapses on the part of applicants Nos.l and

2. But there was nothing on record of the‑ trial Court to conclude that applicant No.3 was served with the summons.

6. Another aspect to which I have given serious thought is, whether the suit could have been decreed for a mandamus directing the applicants to issue an import licence for a car in spite of the fact that Medical Board constituted under the Scheme was of the view that the respondent was not a disabled person entitled to the aforesaid concession, which fact was admitted by him in his plaint Though the respondent had produced certain medical certificates of I the foreign origin but there was no evidence on record to conclude that factually he was a disabled person within the ambit of the above Scheme as to entitle him to an import licence for a car fitted with automatic transmission device free of customs duty. The above medical certificates without their proof could not have been treated as a piece of evidence. This aspect has not been dilated upon by the learned trial Court while deciding the suit .nor it has been touched upon by the learned appellate Court. I may observe that even in an 1 ex parte suit, it is the duty of the Court to examine the question whether the relief prayed for can be granted legally on the basis of the material available on record. Even if I were to presume that the summons must have been received by applicant No.3/defendant No.3 in view of the above registration receipts produced by the learned counsel for the respondent, the question still remains whether the relief prayed for could have been granted. Since I am exercising revisional jurisdiction, the judgment/ decree can be set aside on the above legal ground.

7. I am, therefore, of the view that it is a fit case to be remanded to the learned trial Court with the direction to decide the suit within a period of six months from the date of receipt of a copy of this judgment, in the light of the above observations and to allow the parties to file written statement and/or to produce evidence on the above aspect. The ex parte order and ex parte judgment/decree are set aside and the case is remanded to the learned trial Court in the above terms. The Revision is, therefore, allowed in the above terms but there will be no order as to costs. M.Y.H./A‑427/K Petition allowed/case remanded.