2002 PLP 3144 (YLR)

Laws Cited

Representation

• Syed Muhammad Ali Shah Mir, for Petitioner.
• Shafiq Ahmad for Respondent.
• Date of hearing: 24th April, 2002.
• 2. Brief facts of the case are that Farooq Ahmad respondent/plaintiff instituted a suit for recovery of Rs.3,61,000 against the petitioner/defendant on the basis of pro‑note dated 20‑7‑1993. The defendant could not be served through ordinary process. On 24‑10‑1995, learned Trial Court ordered that service of the defendant be effected through proclamation in the newspaper. In pursuance to the aforesaid proclamation, Peer Ahmad Shah Khagga, Advocate appeared on behalf of the defendant/petitioner on 29‑11‑1995 and submitted an application for leave to appear and defend the suit which was granted on 4‑3‑1996 subject to furnishing of surety bond in the amount of Rs.3,61,000 till 18‑3‑1996. On the said date, learned counsel for the defendant stated that due to sickness of the defendant, required surety bond could not be submitted. The Court granted another opportunity for submission of surety bond. The petitioner failed to submit surety bond in terms of the Court order. Consequently, suit of Farooq Ahmad respondent/plaintiff was decreed.
• 3. Thereafter, the respondent applied for execution of the decree but the petitioner did not appear. Ultimately, he was arrested for satisfaction of the decree on 4‑9‑2001 and detained in civil prison. He was produced before the Executing Court where he executed surety bond and was released after paying Rs.10,000 as an installment. Later on, petitioner submitted an application under section 12(2), C.P.C. on 15‑9‑2001, wherein, he alleged that the respondent obtained the impugned decree collusively and fraudulently as he never appeared in the Trial Court, that he was not even served therein, and that all the proceedings were carried out without notice to him. The petitioner alleged that respondent himself, collusively and fictitiously, engaged a counsel on his (petitioner's) behalf and gave an impression that Pir Ahmad Shah Khagga, Advocate had submitted application for leave to appear and defend on his (petitioner's) behalf; that he had neither engaged the aforesaid counsel nor any application was submitted by him; that fact of passing of the decree against him came to his knowledge for the first time when he was arrested on 4‑9‑2001 in compliance of non‑bailable warrants, issued in pursuance to the said decree. He prayed for setting‑aside the decree dated 25‑3‑1996.
• 8. The petitioner did not appear in the Trial Court at initial stage. After proclamation issued in the newspaper, he engaged Pir Ahmad Shah Khagga, Advocate and submitted application for leave to appear and defend the suit. Same was granted subject to furnishing of surety bond of the amount, claimed in the suit. The petitioner did not fulfil the condition and ultimately, suit was decreed against him.
• 9. The record indicates that respondent instituted suit on 1‑6‑1995 which was fixed for 4‑6‑1995, on which date, notice was issued to the petitioner through registered post for 28‑6‑1995. He could not be served therefore, case was adjourned to 24‑7‑1995 and then for 17‑9‑1995 on which date, he again did not appear and notices were repeated for 9‑10‑1995. On the said date the Process Server was directed to serve the petitioner through affixation of notice at his residence for 24‑10‑1995. Despite service through affixation, he did not appear, therefore Court directed to serve him through publication in the newspaper for 29‑11‑1995. On the said date, the petitioner appeared for the first time in the Court through Pir Ahmad Shah Khagga, Advocate and submitted application to appear and defend the suit. On 11‑12‑1995, learned counsel for both the parties appeared and respondent's counsel requested for adjournment to file reply to the application of the petitioner. The case was adjourned to 7‑1‑1996, again it was taken up on 21‑1‑1996 and then on 4-2‑1996. Ultimately, on 4‑3‑1996, arguments of counsel for the parties were heard on the afore‑referred application and leave to defend was granted subject to furnishing of surety bond in the sum of Rs.3,61,000 till 18‑3‑1996. The surety bond was not submitted by the petitioner and request was made for more time to submit surety bond and as such, the case was adjourned to 25‑3‑1996. The conditional order having not been complied with, suit of the respondent was decreed on the said date. The conduct of the petitioner clearly shows that firstly he had been avoiding service and after having been served though proclamation, he engaged counsel and submitted application for leave to appear and defend the suit. After the grant of relief, sought for, he did not submit surety bond and consequently, suit of the respondent was decreed. He challenged the aforesaid decree through application u/s 12(2), C.P.C. It is evident that the petitioner filed application for leave to appeal and defend the suit on 29‑11‑1995 which contained his two signatures; one under the verification and other one just under the signatures of his counsel Pir Ahmad Shah Khagga, Advocate. His claim that he never engaged said Advocate as his counsel is belied by his signatures on the said application. He also filed an affidavit in support of said application which also contained his signatures. He was identified by his counsel before the Oath Commissioner. The petitioner also submitted an application on 29‑11‑1995 under section 5 of the Limitation Act for condonation of delay on the ground that he came to know through proclamation that some suit had been filed against him, therefore, delay' in submitting the application be condoned. In support of said application, he has sworn another affidavit which also contains his signatures. Although he was not personally marked present in the proceedings but the documents, attached with the file clearly shown that he engaged Pir Ahmad Shah Khagga, Advocate in the suit to defend him. The power of attorney in favour of said counsel contains his signatures. The affixation of notice at the residence of the petitioner is also evident from the record.
• 10. I have compared the admitted signatures of the petitioner which are on the record of instant revision with his signatures on the record of the lower Court. All the signatures almost resemble with each other, though the petitioner has put his signatures in slow motion on power of attorney executed in favour of Malik Altar Hussain Raan, Advocate and affidavits attached with this petition to indicate them different from those on the record of the lower Court put in running hand‑writing. The plea of the petitioner that he was not served, nor engage Pir Ahmad Shah Khagga, Advocate as his counsel in Trial Court and the proceedings were carried out fictitiously and fraudulently by the learner Additional District Judge is frivolous and concocted one to avoid consequences of the decree.
• 11. The facts of the cases, referred by the learned counsel for the petitioner are distinguishable from the instant one. In the case of Abdur Razzaq (1999 SCMR 1714), the compromise was effected between the parties and Syed Anwar Hassan Gardezi, Advocate who was counsel for the applicant therein, made a statement in respect of compromise, arrived at between the parties. Shabbir Ahmad, real brother of the applicant also made a statement in respect of compromise on the same day. It was never pointed out that land bearing Khasra No.23/20 not in possession of the applicant or his brother, so the objection raised in the said application was termed as baseless and the same was dismissed with costs of Rs.5000. Muhammad Islam respondent therein, filed revision petition against the said order. Learned District Judge accepted revision on 2‑2‑1993 and case was remanded to the Trial Court for decision of the application under section 12(2), C.P.C. The Constitutional petition was dismissed by the High Court against which, appeal of Abdur Razzaq was dismissed. In the aforesaid case, order of the learned Additional District Judge remanding the case for decision of application under section 12(2), C.P.C. was maintained as serious dispute on factual ground required recording of evidence.
• 13. In the instant case, the controversy stands resolved by the documents themselves on the record. An eminent counsel of District Khanewal Pir Ahmad Shah Khagga, Advocate appeared for the petitioner. He obtained a favourable order for him which was not complied with and subsequently, suit was decreed against the petitioner. His admitted signatures on the file of this Court and those on record of the Trial Court i.e., on affidavits and power of attorney clearly show that he engaged afore‑referred counsel to conduct the case for him. The allegation that the respondent procured the impugned decree through fraud and collusion and that he never engaged aforementioned counsel nor made any application are absolutely frivolous and baseless. Learned Additional District Judge has given valid reasons for dismissing petitioner's application under section 12(2), C.P.C. I find no substance in this petition and same is hereby dismissed with costs.

Headnotes / Summary

Judgment & Decree