2012 PLP 1487 (MLD)

MIAN FASIHUL MULK, J.

Petitioner was sued by respondent in the Court of Civil Judge, Peshawar by filing a recovery suit on the ground that respondent had purchased a Toyota motorcar from petitioner for an amount of Rs.6,50,000 on the condition that petitioner will be responsible for the correctness of documents etc., but same subsequently proved to be bogus, hence respondent returned the motorcar to petitioner, who promised to pay the requisite amount but subsequently refused to pay the same.

2. Petitioner was summoned on the given address but he did not appear to contest the suit, hence he was proceeded against ex parte and ex parte evidence of respondent was recorded, where after suit of respondent was dismissed on the ground that in absence of production of any documentary evidence, oral evidence of respondent was not sufficient to support his claim against petitioner.

3. Respondent filed an appeal before this Court. During pendency of appeal, pecuniary jurisdiction of the District Court was enhanced; hence appeal was transferred to the District Judge, Peshawar, where it was heard by Additional District Judge, Peshawar in absence of petitioner due to his failure to contest the appeal despite issuance of notices through ordinary means as well as through publication in the newspaper and allowed the appeal vide impugned judgment dated 9-12-2001 thereby decreeing the suit of respondent against petitioner to the extent of principal amount of Rs.6,50,000.

4. Respondent then filed execution petition, wherein salary of petitioner was attached and it was at this juncture, when petitioner alleging to have come into knowledge of the proceedings against him, filed an application before the Additional District Judge for setting aside the ex parte judgment/decree dated 9-12-2004 which was dismissed vide order dated 24-2-2004 on the ground that petitioner was duly served through publication in daily "News" and copy of said publication was also sent to him through registered post AD. It was also held that as per order of High Court dated 13-11-2003 whereby appeal was transferred to the District Court; petitioner was marked present, meaning thereby that he was well aware of the proceedings.

5. Petitioner, feeling aggrieved of the impugned judgment/orders of Additional District Judge, has filed instant revision petition with the prayer that the same may be set aside.

6. I have heard learned counsel for the parties and have also perused the record.

7. As per averments made in the application for setting aside the ex parte decree of appellate Court, petitioner was an employee of Customs Intelligence Department, who was transferred to Peshawar, wherefrom he went on L.P.R in June, 2008; that on 3-6-2009, as usual petitioner came to Peshawar to receive his pay from the office, when he was informed that his salary has been attached; that petitioner contacted his counsel and filed application for setting aside the ex parte decree of the appellate Court as respondent had intentionally given incorrect address of petitioner in the plaint, who at the relevant time was performing his duties at Peshawar and was away from his village.

8. Perusal of order sheets of the Court of learned Additional District Judge would reveal that no doubt petitioner was served through registered AD post followed by publication in the daily "News" Islamabad but nothing is available on record to show that either of the registered AD Card issued to petitioner was received back with any report of its service upon the petitioner. The newspaper, wherein notice was published against petitioner, was English daily, having no wide circulation in the locality. The issue of this newspaper was sent to petitioner through AD post but again no AD card was received or available on record to show that such issue of newspaper was received by petitioner.

9. The appeal was filed by respondent initially before this Court, which came up for hearing on 26-3-2003 and notice was ordered to be issued for 22-4-2003. Perusal of the order sheets of the office of Deputy Registrar would reveal that notices were issued against him but he could not be served on the given address; hence case was laid before the Court for 22-4-2003, on which date petitioner was absent and office was directed to ensure his service for 26-5-2003. On 26-5-2003, appeal was again adjourned for want of service of petitioner. It was on 13-11-2004, when vide detailed order in connected R.F.A. No.51/96, appeal in hand was also transferred to the Court of District Judge and presence of Iqbal (respondent) was marked in person. After transfer of the case, petitioner was served through notices as well as publication in the newspaper by Additional District Judge but he did not appear. Had the petitioner been present before the High Court on 13-11-2004, he would have definitely appeared before the appellate Court in response to the notices issued against him. All the above facts, thus points out to the fact that petitioner was not properly served in the case nor he was present before the High Court on the requisite date, although his name was written in the heading of the judgment but it seems to be a clerical mistake in view of the earlier order sheets available on file, wherein neither he was represented by any counsel nor he personalty appeared before the Court in that dates.

10. Order IX Rule 13 of the C.P.C. speaks of conditions under which an ex parte decree can be set aside. It is evident from the above Rule that an ex parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. The meaning of the word "sufficient cause" is 'adequate' or 'enough' in as much as may be necessary to answer the purpose intended. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that technicalities of law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it.

11. No doubt, under section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post but such presumption would be gathered from the fact if the same is returned back with a postal endorsement that the addressee refused to accept the same. The presumption is rebuttable and it is open to the party concerned to place evidence before the Court to deny the presumption by showing that the address mentioned on the cover was incorrect or, that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. Petitioner was admittedly posted at Peshawar in connection with his service in the Customs Department at the relevant time and his address given in the plaint is that of his village in District Karak. There is thus substance in his plea that he was not personally served in the case.

12. For the aforesaid reasons, this Court is of the view that the impugned judgments/orders have caused prejudice to petitioner as he was not properly served in the case. Accordingly, instant revision petition is accepted, the impugned judgments/decrees of the Courts below are set aside and case is remanded to the trial Court with the direction to afford proper opportunity of hearing to petitioner and producing his respective evidence rebuttal to the claim of respondent. No order as to costs. K.M.Z./104/P Order accordingly.