2005 PLP 1051 (CLC)

This is an appeal under section 96 of Civil Procedure Code, filed by appellant/defendant Hamid Ali against the judgment, dated 20‑9‑2003, followed by decree of the same date, passed by Vth Additional District Judge, Karachi East in summary Suit No.42 of 2003 which was filed by the respondent/plaintiff Syed Rashid Ali under Order XXXVII, C.P.C. for recovery of amount of Rs.7,00,000 (Rupees seven lacy, who asserted in the said suit that on 18‑3‑2003 defendant/appellant had obtained loan amount from the plaintiff/respondent on the plea that he had to pay the amount to someone else, but because the Bank business hours had closed by that time, he was unable to make such a payment, which was to be immediately paid and the defendant issued Cheque No.6563310 dated 19‑3‑2003 for an amount of Rs.7,00,000 (Rupees seven lac) towards such repayment.

2. It was further contended by the plaintiff/respondent in his said suit that he presented the said cheque for encashment before the concerned Bank branch, but did not receive the amount against the same and instead was directed to "refer to drawer". He demanded the amount so paid by him to the defendant/appellant but he avoided to pay the same, hence the plaintiff filed the said summary suit before the learned District Court for recovery of the said amount.

3. Learned trial Court directed for issuance of summons against defendant‑appellant but the bailiff of the Court reported that the residential address shown in the plaint of the suit for service of process upon the defendant, was found by him to be closed; the summons were also issued through the courier service viz. T.C.S. which also returned back undelivered.

4. Accordingly, the plaintiff filed an application under Order V, rule 20, C.P.C. praying therein that the defendant/appellant be served with the process by means of substituted method, specially stating therein that he was not aware of any other address of the service of the defendant/appellant; learned trial Court allowed the said application in consequence whereof the summons was got published in the daily newspaper Nawai Waqt, Karachi in its issue of 5‑8‑2003.

5. The case diary, maintained in the said suit by the trial Court, mentions that on 8‑8‑2003 service of the process against defendant/appellant was held to be good, but further hearing of the suit was "put off for application to leave on 29‑8‑2003", when on the said adjourned date, learned counsel for defendant/appellant appeared and filed an application for leave to defend under Order XXXVII, rule 3, which was heard by the trial Court on 16‑9‑2003; but in the meanwhile an application under section 5 of the Limitation Act was also filed by the defendant/appellant in support of the said application, which was also heard by the trial Court on 16‑9‑2003 when the application tinder section 5 of Limitation Act was dismissed whereas the application under Order XXXVII was dismissed on 17‑9‑2003 hence, the appellant/defendant has filed this appeal against the said orders.

6. Heard Mr. Mirza Moazzam Baig, Advocate for appellant and Mr. Rizwan Ahmed Siddiqui, Advocate for respondent; also perused the R&P of learned trial Court and the documents filed with this appeal.

7. It is contended by learned counsel for appellant that the plaintiff/respondent was fully aware of the fact that a receipt and agreement were executed on 5‑3‑2002 in between the parties, and at the foot of the said receipt the address of the business of plaintiff/respondent was shown as 3‑C, 19, Commercial Phase‑II, Extension, D.H.A., Karachi and that the plaintiff was aware of the said address of business of the defendant but he suppressed such a fact and instead deposed in his affidavit that he was not aware of any such address of service of the defendant/appellant; in reply learned counsel of respondent has referred to the memo. of plaint of some other Suit bearing No.583 of 2003, wherein the defendant/appellant had shown his same address, which was shown in his present suit, and that he had done all which was within his reach and power/means and that the defendant himself having disclosed his address of service in the plaint of his own suit, cannot now take a plea that he was to be served on the address of the place of his business.

8. Learned counsel of respondent contended that in the memo. of present appeal also the appellant has shown the very same address of service, which was shown by the plaintiff in his own plaint (of the suit in question).

9. Thus, the plaintiff/respondent apparently acted diligently and did all which was within his means/reach for the purpose of getting summons in the suit served upon the defendant/appellant and there does not appear any reason to record a finding that the service, directed by the learned trial Court upon the defendant/appellant as good, suffers from any defect, more particularly when the original envelopes are also available in the file of the trial Court, whereby the process was sent to the defendant appellant by means of courier service also, but returned back undelivered or the reason that the defendant/appellant was not found available so that service thereof could be effected upon him; thus, on this point, the grievance raised by the appellant cannot be entertained.

10. But, Honourable Supreme Court has insisted time and again that the litigation in between the parties should be heard and decided on merits, and that the party seeking to set aside ex parte judgment and decree, if is not found to have committed gross laches, is to be encouraged to pursue proceedings of the suit and decision thereof on merits for such a reason alone, the defendant/appellant is allowed to contest the suit and to get it decided on merits, provided that he shall pay cost of Rs.20,000 (Rupees twenty thousand) to the plaintiff/respondent within the period of 15 (fifteen) days from this date, to be deposited by him in the trial Court. Impugned judgment and decree would stand set aside in the said terms. H.B.T./H‑48/K Order accordingly.