1980 PLP 1462 (CLC)

MUHAMMAD KHURSHID KHAN, J.-This appeal arises out of an order dated 10th April, 1975 of Land Acquisition Judge, Hazara, refusing to set aside the ex parte decree which had been passed on the 2nd of October, 1973 by his predecessor-in-office, S. Mir Mohammad (since removed from service). The facts, so far as it is necessary to state them for the purposes of dealing with the points involved in this appeal, are few and simple and shortly stated are these :-20 kanals, 4 marlas of land bearing Khasra No. 1348, situated in the area Nowshera, a village in Abbottabad Tehsil, alongwith other considerable landed property of that village and some other adjoining villages, was compulsorily acquired for Pakistan Ordnance Factory, Haveliany Project. Notification under section 4, Land Acquisition Act, 1894 (hereinafter called the Act), was published on the 21st of August, 1969, while notification under section 6 was issued on the 11th of March, 1970. The award was announced on the 29th July, 1970. The Collector valued Bahir Di Abi type of land of Village Nowshera at the rate of Rs. 870 60. per kanal. On the basis of this valuation, the owners of Khasra No. 1348, name Khoedad Khan son, Ust. Sanobar Jan widow, and Msr. Sufaidi Jan and Mst. Fayyaz Bibi daughters, of Sher Dil Khan, like other owners of the same kind of land in that area, were granted 'compensation at the rate of Rs. 870.60 per kanal. With this valuation, Khoedad Khan and his three co-owners were not satisfied and made an application under section 18 of the Act for the enhancement of the amount of compensation to Rs. 7,000 per kanal. The Collector, Land Acquisition, Hazara, Controller Pakistan Ordnance Factory, Wah Cantt, Government of Pakistan through Defence Secretary, and Military Estate Officer, Hazara, were made respondents in the application. In consequence of the said application, reference was made before the Land Acquisition .fudge of Hazara. It was registered at No. 3/4 of 1973. On the 2nd of October. 1973, S. Mir Mohammad who then happened to be Land Acquisition Judge, Hazara, passed an order for proceeding against the respondent ex pane, After recording the statement of Khoedad Khan, one of the claimants, he passed an ex parte decree in favour of the petitioners enhancing the amount of compensation to Rs. 7,000 per kanal. On coming to know of the ex parte decree, the Military Estate Officer, Hazara, moved an application on the 6th of January, 1975, for the setting aside of the Ex parte decree alleging that no proper service has been effected in -the case and that the ex parte decree was obtained by fraud. The application was resisted by the decree-holders by pleading that there had been a proper service in, the case and that the application was not within time and even on the principle of estoppel was liable to dis missal. Mr. Iftikhar Ahmed, attorney of the Military Estate Officer Hazara, gave statement in support of the application for setting aside the ex parte decree. The opposite party examined Hukam Dad, process-server, in proof of the service of summons. No other evidence was led by the parties. The Court dismissed the application for the setting aside of the ex parte decree on the grounds, firstly that the applicant had been duly served, and secondly that the said application was barred by time. This order is now being complained of before us. S. Mir Ahmad Shah, the learned counsel for the appellant appearing before us, strenuously contended that the appellant had not at all been served and that in point of fact, the outer respondents in the reference case had also been not served. He argued that the claimants had suc ceeded in getting an ex parte decree by practicing fraud. The learned counsel for the contesting respondents, on the other hand, maintained that the service had been effected upon all concerned with the result that the appellant had no case to succeed, We have carefully considered, and have given due weight to the arguments advanced before us and we are of the opinion that S. Mir Ahmad Shah's contentions must prevail. In coming to the conclusion that the Military Estate Officer had been duly served, the Court below placed sole reliance on the statement of Hukam Dad, process-server, and the report dated 7th of July, 1973, Exh. P.W. 1J1, recorded by him on the back of the summons/notice issued in the name of the Military Estate Officer. This conclusion, to say the least, is erroneous and does not follow from the statement of the Process-server and other facts and circumstances to which we will presently refer. It is an admitted position that the appellant was one of the respondents in the reference before the Land Acquisition Judge. The notice is. said to have been issued to the appellant, Military Estate Officer, Hazara, to appear before the Land Acquisition Judge on 25th of July, 1973 in the reference case. This notice is found at page 9 of the reference file. Exh. P. W. 1/1 is the report of process-server Hukam Dad. It is stated in the report that the Military Estate Officer has per sonally been served through his Clerk. It will appear from the facts, and the circumstances brought on the record that this report was wholly false ` of fact, the notice was never served upon the Military Estate Officer nor upon his clerk or any other authorised person. The fact that the notice was not taken to, and served upon, the Military Estate Officer personally, is admitted even by the process-server himself in his statement recorded try the Land Aqquisition Judge on 18th of March, 1975, wherein he said that "I did not go to the Military Estate Officer personally in this case because under the orders of the Military Estate Officer service was to be effected on the clerk concerned." It is obvious, therefore, that the notice was not served upon the Military Estate Officer personally. It has, however, been claimed that the notice was served upon the clerk of the Military Estate Officer. This statement of fact, as will be seen, is also devoid of truth. It is in the statement of Mr. Iftikhar Ahmed, P. W. 1, acid there is nothing on the record to suggest the contrary, that in the year 1973, he was the concerned clerk in the office of the Military Estate Officer in respect of land acquisition cases and that he was never served with the notice in question.' It is evident that it was he alone who could accept service on behalf of the Military Estate Officer in Land Acquisition cases. The process-server did not dare say that the notice was served upon Mr. Iftikhar Ahmed or that-it was signed by the latter in token of having accepted the notice. The process-server contented himself by giving a vague reply on cross-examination saying that he did not personally know the clerk who had been served by him and that he was also not able to say if the person served by him was one amongst those pre-sent in Court on that data. Then on another question put to him on cross-examination, the process-server added that he could not say if the person on whom service had been effected by him was a peon. On consideration of these facts and circumstances, we are satisfied that the notice was not served upon the Military Estate Officer who was one of the respondents in the proceedings before the Land Acquisition Judge. It was also not served upon the clerk concerned who had been authorised by him to accept notices in land acquisition cases. It is well settled by authority that in cases where the summons or notice as the case tray be, has not been duly served, the A Court shall make an order setting aside the ex parte order. Since in the present case, the _Military Estate Officer or the person authorised by him to accept the notices in land acquisition cases, had not been duly served, the ex parte decree passed against hint is liable to be set aside. Although the solitary fact that the notice had not been duly served on the appellant is sufficient for setting aside the ex parse decree, we would like to point out that apart from other things, the ex parte decree was not only the result of fraud but had also resulted in the miscarriage of justice. It is most unfortunate that a civil servant should behave in a manner in which some civil servants have conducted themselves in this case. To start with, the award was announced by the Collector on the 29th July, 1970. It would appear that in the case of an objection under section 18, the maximum period allowable is six months from the date of the making of the award in accordance with section

11. In the instant case, even if it be assumed for the sake of arguments that the claimants were entitled to six months period of limitation, the last date for filing application under section 18 by them was 29th January, 1971. They, however, submitted the application under section 18, to the Land Acquisition Collector on or after 12th June, 1973. In this way, the application was beyond the period of limitation by about 28 months. Even then the Collector did not attach any importance to such an inordinate delay and proceeded to make reference to the Land Acquisition Judge. We cannot persuade ourselves to believe that the conducts of the Land Acquisition Collector in making the reference to the Land Acquisition Judge was bona fide. The conduct of the process-server, namely, Hukam Dad, in the matter of service of notice in the proceedings has sufficiently been commented upon. Even in relation to the Land Acquisition Collector, Hazara, the report of the process-server that he had been personally served appears to us to be highly doubtful. Then comes the Land Acquisition Judge, S. Mir Mohammad. The way in which he proceeded with the reference and valued the land appears to us to be exceptional and unusual. He was so anxious to decide the reference that he did not even call upon the petitioners to produce a copy of the award before him to see if the basis on which the Collector had valued the pro perty was tenable. Again, he proceeded to pass the ex pane decree on the basis of a solitary statement of one of the petitioners, enhancing the compensation to Rs. 7;00 per kunul, the amount demanded by the peti tioners. Now he, when he was valuing the land, appears most unfortu nately, in our judgment to have made up his mind to invert the ordinary course of proceedings and we think this was particularly unfortunate in a case where the market value of the land could be found out by having recourse to sale mutations of similar kind of land for which patwari of the circle could be examined. The burry with which the Land Acquisition Judge proceeded with the case and the manner in which he valued the property appear to us to be the outcome of some thing very exceptional and unusual. It it significant to note that with a single stroke of pen, and having not sufficient evidence to dislodge the presumption of correctness attached to the award, the Reference Judge enhanced the compensation from Rs. 870.60 to Rs. 7,000 per kanal. In this way, the compensation per kanal was enhanced by about Rs. 6,

130. The land in respect of which the compensation was enhanced measures 20 kanals 4 marlas. The en hanced amount for this land comes to Rs. 1,2 3,

826. This fact, we believe, clearly shows that the ex parte proceedings were not the result of fair deal and so was the ex parse decide which resulted in grave miscarriage of justice. As regards the question of limitation, the Land Acquisition Judge dealt with it in a most unsatisfactory and perfunctory manner. While dealing with this point, he referred to, and relied on, execution application No. 41 10 of 1974 and observed that in the said application, the judgment debtors including the Military ,Estate Officer had been served and there after attachment orders were also issued and part payment to the tune of Rs. 44,578.12 had been made to the decree holders as noted in order No. 11 dated 27th September 1974. This evidence consisting of the application, the attachment order -and the order dated 27th September,, 1974 with regard to the payment of Rs. 44,578.12, did not form part of the file relating to the application for the setting aside of the ex parte decree. It is important to note that even the decree holders-respondents did not base reliance on this evidence. They did neither place on record certified copies of these document$ nor did they mention these documents in their 'list of witnesses. They also did not make an application for summoning the Execution file. Again, these documents were never put to Mr. Iftikhar Ahmed ,who appeared as the only witness on behalf of the applicant the Military Estate Officer. In these circumstances, it is not understood as to how the Court could take these documents into consideration. The entire evidence of the decree holders in the application for the setting aside of ex paste decree is confined to the statement of Hukam Dad, Process-server, in which no reference is found to such proceedings or documents. By taking these documents and the facts based thereon into. consideration, the Land Acquisition Judge undoubtedly travelled beyond the scope of his authority. As indicated already, Iftikhar Ahmed appeared as a witness on behalf of the Military Estate Officer. He was the clerk in charge and also held the power of attorney from the latter. He stated on solemn affirmation that he came to know of the ex parte decree on 4th of January, 1975, and on the 6th of January, 1975, the. present application for the setting 'aside of the ex parte decree was instituted in Court. He added further that on coming to know of the ex carte decree on the 4th of January. 1975. he satisfied himself of the position and then he obtained a copy of the ex parte judgment and took it to the Military Estate Officer who asked him to apply to the Court for the cancellation of the ex parte decree which was done on 6th of January, 1975. This statement is clear on the point that Military Estate Officer got knowledge of the ex carte decree on 4th or 5th of January, 1975 on the information received from his clerk and then within two days, the application in question was submitted to the Court. There is no evidence in rebuttal as none of the decree holders cared to appear into the witness-box. In view of the statement of lftikhar Ahmed which stands unrebutted on record, there was no necessity for the Military Estate Officer to enter the witness box. On the point that the Military Estate officer got krowled a of the ex carte decree only two days before the filing of the application for the setting aside of the ex carte decree, there is also an affidavit by Mr. Iftikhar Ahmed on the foot of the said application. The decree-holders, in reply, did not file a counter-affidavit with the result that the affidavit remains unchallenged. In this state of affairs, we cannot entertain the slightest doubt in our minds that the appellant got krowled on of the ex parte decree on 4th or 5th of January, 1975 and therefore, the application out of which present appeal arises, was within time. For the reasons stated above, we would accept this appeal, se aside the impugned order as well as the ex parte decree against all the respondents and remand the case to the Land Acquisition Judge for trial', according to law, after, all the respondents are afforded an opportunity to D file their written statements. The costs of the appellant is this Court shall be borne by respondents 1 to 4, i.e. the claimants owners in the lower Court. M. Y. M. Appeal accepted.