A suit for specific performance of contract of sale dated 6-9-60 in respect of sourthern portion of Bungalow No. 25-A, Lower Mall, Lahore was instituted by the petitioner against the respondent on the 20th of July 1973. This suit was decreed ex parse on the 18th of March 1974. The learned trial Court by its order dated 9-4-1978 set aside this ex parse decree on an application of the defendant-respondent- filed on 27-4-1974.
2. Hence this revision petition.
3. It appears from the record that the summons for the 13th of September 1973 remained unsaved.
Despite direction to serve the defendant through Process Server as well as- -by registered post no process was issued by the Court official for the 24th October 1973. When the matter came up for hearing on the 24th of October, 1973 the learned trial Court after noticing this lapse as also the fact that the process fee as well as the required envelope for sending summons by registered post were there on record repeated its order for serving the defendant for the 11th December 1973 in both the mariners, i.e. Through the Process Server as well as by registered post. Finding on the next date that no service was yet effected the learned Court issued fresh summons for the 2nd February 1974. The matter was, however, taken up on the 4th February 1974 since on the date fixed earlier holiday was declared. In view of the different reports on the summonses already issued the learned trial Court concluded that it was not possible to serve the defendant-respondent through ordinary means. It, therefore, directed him to be served by citation in the "Nawa-iWaqt" for the 16th March 1974. Since the respondent did not appeal, on that date. Despite service by citation, the Court adjourned the matter to the 18th of March 1974, .On which. Date it passed a decree in favour of the plaintiff after recording ex parte evidence,
4. An application for setting aside this ex parte decree was submitted after one month and 9 days on the ground that the defendant had neither been served nor had any knowledge of the institution of the suit. This application was contested by the petitioner not only on the ground that the defendant-respondent had been served but also on ground. Of limitation. The learned trial Court framed the following issues:
(1) Is this application within time?
(2) Was the petitioner not properly served?
(3) Is there any sufficient reason for setting aside the ex parte .Decree dated 18-3:1974..---
(4) Relief.
5. The parties led documentary as well as oral evidence. The learned Court below did not discuss the material - oral evidence and found on the basis of the different orders passed by the Court (1) that there was no justification for passing an order of substituted service and as such the defendant was not duly served, (2) that the citation in "Nawa-i Waqt" was vague and could not be treated to be a sufficient service on the defendant (3) that there was no direction to affix the notice under Order V, rule 20, C. P. C., (4) that the date for which the service by citation was effected was not a date of hearing, (5) that mere knowledge of the defendant about the suit was not sufficient for dispensing with service and (6) that in view of the fir)t two findings the question of the application for setting aside the ex parte decree being barred by limitation did not arise. '
6. While arriving at these conclusions the Court did not consider material evidence. It gave contradictory finding also. On the one hand it held that no envelope for sending the summons by registered post was filed by the plaintiff-petitioner and on the other hand referred to report Exh. P. 3 which shows such a letter was sent but the same was delivered back by the Postal authorities to the Ahlmad. He also held that the order for substituted service by citation without a direction for affixation of a notice outside the Court room could not be regarded as legal. He made some observations about there being proof of the defendant-respondent having knowledge of the institution of the suit but held that the knowledge of the defendant would not dispense with the necessity of service of summons upon him nor justify making of ex parte order against him, thus ignoring the provisions of the amended Order IX, rule 13, C. P. C. He did not take into consideration the evidence to prove that the notice by registered post had been posted by Mr. Riazul Haq Advocate R. W. 3 and there would be a presumption of its having been served upon the defendant- respondent since it was never received back, as is clear from the testimony of the Ahlmad. He made reference to Bxh. P. 3, a report of the Postal Department in substitution of its earlier report about service of notice on the defendant respondent by registered post saying that the said notice had been sent back to the Ahlmad without considering the fact that this document was not legally proved on the record. He referred to the statement of Jaffar Hussain P. W. 3 but did not refer to the statement of Muhammad Iqbal P. W. 4 and its weaknesses as well as the evidence of Sh. Riazul Haq R. W. 3 who contradicted Jaffar Hussain. He also failed to consider that even if the service by citation might not be justified on the basis of the orders passed by his predecessor but it was amply justified on the evidence as produced before him. All these grounds make out a case for interference in exercise of the revisional jurisdiction of the Court since it is established from these examples that the trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction.
7. The learned trial Court rightly held that the first question which requires to be answered is whether the defendant-respondent was duly served. But while answering that question the learned trial Court ignored material evidence as well as the proviso to Order IX, rule 13, which was added by the Law Reforms Ordinance, 1972. The proviso reads as follows: "Provided further that no decree passed ex parse 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."
It appears therefore, that when once it is established that the defendant respondent had knowledge of the institution of the suit and of the date fixed for appearing and answering the claim, any irregularity in the service of summons would not be material. 1t was the duty of the Court to consider the evidence on record in the light of this proviso.
8. A number of summonses were issued in this case. The first summons was issued for the 13th,of September 1973. Although the process fee was deposited late but it is clear that summons was sent and was received back with the report that the defendant was not available. The next summons was ordered to be issued in the ordinary manner as well as by registered post for 24-10-1973 but since there is no report about the issuance of such summons it was rightly concluded by the learned trial Court that it was not so issued. On the 24th of October, 1973 the following order was passed: Below this order is written 'navishtah' A:.-4.; in the hand of the Ahlmad and it is dated 26th of November 1973.
9. The order of the Court as well as the word 'navishtah" both required interpretation. It was urged on behalf of the defendant that the earlier portion of the order that the process-fee and the registered envelope bad already been filed is not reconcilable with the latter portion which directed the same to be filed and fresh summons to be issued on deposit of process fee and filing of envelope.
10. It was further urged by the learned counsel that the word 'navishtah' shows that the summons was sent only in the ordinary manner through a Process Server and not through registered post because if such had been the case, a reference would have been made in this endorsement to the sending .Of the notice through registered post. The learned trial Court appears to have agreed with both these contentions.
11. There is no form evidencing the deposit of process fee for the 24th October 1973 on the record of the suit. Mr. Riazul Haq Advocate who is son of the plaintiff and was appearing as his counsel did not throw any light on this question in his statement as R. W.
3. In this state of evidence I agree with the finding of the learned trial Court that the envelope had not been filed on that date and consequently the first portion of the order should be read as denoting that the process fee and the registered envelope had not been filed by the plaintiff. This is further supported by form Exh. R. W.
2/4 which proves the deposit of process fee and handing over of the envelope on the 8th of November 1973. If any process fee had been deposited for the 24th of October 1973, it would have been unnecessary to make a fresh deposit of the same for the 11th December 1973.
12. The case of the respondent as argued by his learned counsel is that the registered envelope was not filed even on 8th November 1973 nor was any such envelope sent through the Court. His reliance is on the difference of ink of the entry, Exh. R. W. 2/5 J ailiJ" on form Exh. R. W. 2/4 and the other entries including the signatures of Mr. Riazul Haq R. W. 2/6. He also relied upon the evidence of Muhammad Aslam Ex-Ahlmad of the Court of the Senior Civil Judge, Lahore (J. H. W. 2). This witness stated after going through the file that no registered envelope was sent by him to the respondent nor was there any note to this effect on the file. According to him he issued summons to the defendant on the 26th of November 1973. He further stated that "when he consigned the file to the record the words". (The words quoted by the witness are missing from his statement but he appeared to have referred to the words Exh. R. W. 2/5, "Z 60 41W"appearing in column 2 of 'Fard Talbana' referred to above were not there. He said that he did not know whether he received any registered envelop.- after it was returned from the post office in the course of the proceedings in the said civil suit.
This argument is not tenable in view of the explanation given by Mr. Riazul Haq Advocate R. W. 3 that since an earlier envelope filed by him was said to have been lost by the Ahlmad, he took back the envelope filed with process fee form Exh. R. W. 2/4 after it was duly filled and completed by the Ahlmad and he personally sent it by registered post In support of this he filed and proved postal receipt Exh. R. W. 2/7. He further stated that acknowledgment due receipt was not received by him but was received in Court. He !Added that since this A. D. Receipt had not been received in Court before the next date, the Court directed the defendant to be served by publication in the newspaper. There is no reason why this statement should not be believed.
14. The respondent has himself relied upon Exh. P. 3, copy of a communication . Sent by the City Superintendent of Post Offices, South Division, Lahore to Mr: Riazul Haq Advocate on the respondent's application date 16th of October 1974. It reads as follows:-- "On receipt of a complaint dated 26-10-74 from S. M. Anwar, fresh enquiries - made and it has been found that the article in question was delivered back to Ahlmad.(Mr. Mohammed Aslaml of the Senior Civil Judge, Lahore and not to its addressee on 15-12-1973, as reported by the Inspector of Post Offices South Lahore."
The subject of this letter is "Disposal of P. M. G.'s. R. L. 727 dated 3.12-78 addressed to S. M. Anwar, 25 Lower Mail, Lahore." Receipt No. 727 is Exh. R. W. 2/7 by which the summons for the l lth. Of December 1973 was sent by registered post acknowledgment due to the respondent by Sh. Riazul Haq Advocate R. W. 3.
15. At least two things are clear from Exh. P. 3 itself. The first is that a registered letter addressed to Mr. S. M. Anwar was sent prior to the date of hearing by receipt No. 727 and secondly that according to the first report this had been served upon the respondent. On an application of the respondent this second report Exh. P. 3 was sent by the Postal Department contradicting its first report and stating that the envelope had been sent to Mohammed Aslam Ahlmad.
16. Report Exh. P. 3 confirms the statement of Mr. Riazul Haq about the registration of a letter of which the addressee is the respondent and the sender is Mohammed Aslam Ahlmad of the Court by postal receipt No. 727, - Exh. R. W. 2/7. This is further confirmation of the undoubted veracity of R.
W. 3.
17. The learned counsel for the respondent argued that the word `navishtah' written by the Ahlmad on the 26th of November 1973 proves that summons were sent only through process server and not by registered post. Lie submitted that if the registered envelope had been sent as is stated by Mr. Riazul Haq, a reference to that would have been made in this endorsement.
18. I do not agree with this argument since the word `navishtah' is in respect of the summons and not the agency through which it is sent. This word only means that summons had been sent in compliance with the order of the Court. It will be hair-splitting if it is made referable to only summons sent through the process server and not through another agency. The evidence of Mohammed Aslam J. H. W. 2 could not be relied upon since the witness had not been fully cross- examined and had died before the next date which was fixed for cross-examination. Even if this statement is held not to be subject to this criticism, it cannot be relied upon in the face of the circumstances referred to above particularly Exh. P. 3 and the statement of R. W. 3 which I have no reason to disbelieve.
That portion of certificate Exh. P. 3 which withdraws the first report admitting the service on the defendant is neither admissible in evidence nor is reliable. If the respondent wished to prove this portion of the report to be correct, he could not rely upon this simple report but should have produced evidence documentary and otherwise to show that the summons sent through letter No. 727 was not received by the respondent and that the earlier report about actual service was incorrect.
20. The report that the summons was not served is proved untrue by strong circumstantial evidence. Exh. R. 2/3 is a judgment of a Magistrate 1st Class, Lahore dated 14-1-1974 by which the respondent was discharged under section 253, Cr. P. C. In a criminal case filed under section 420, P.
P. C. Against him by the petitioner, in regard to the same transaction of agreement to sell the property in dispute. One of .The grounds for this discharge is as follows : "It is also contended by the learned defence counsel that the complainant has also filed a civil suit against the accused as he (complainant) has also admitted the same during arguments, and in that suit the complainant admits that the rent was paid to him by the accused for more than two years."
This portion of the judgment clearly establishes knowledge of the suit and its nature on the part of the defendant.
21. In his cross-examination the defendant appearing as P. W. 7 stated that "it is incorrect to suggest that I handed over a copy of plaint in the present suit to my counsel during the course of the proceedings of the criminal case and my counsel referred to the present suit during his arguments. I was present in Court when my counsel argued that criminal case . . . . . I do not remember again said that sufficient period has elapsed since those arguments were heard and hence I do not remember if my (must be counsel) referred to copy of the present plaint while arguing the said criminal case: ' Although as stated above the word counsel is missing from the statement but the tenor of the question put to the witness and his earlier answer proves that he was referring to his own counsel. The respondent thus denied that a copy of the plaint was referred to during the arguments in the criminal case by his learned counsel but he later pleaded that be did not remember this fact. The petitioner in his own statement as R. W. 2 stated that the counsel of the respondent during criminal proceedings had argued that he (the petitioner) had filed a suit and in that he had admitted the receipt of rent from the respondent in his plaint. He further stated that the counsel had read out the relevant portion of the plaint. In his cross-examination he stated that he could not say if the copy of the plaint was certified. He added that evidently it was a copy sent by the Court to the respondent.
22. Now the statement of the petitioner makes a categorical reference to the plaint while there is no categorical denial to that effect in the statement of P. W.
7. He had first made such a denial but later he became shaky and stated that he did not remember whether the plaint was shown to the criminal Court by his learned counsel. In these circumstances the only statement which is reliable on that question is the statement of Sh. Abdul Haq petitioner R. W. 2.
23. This evidence is corroborative of the receipt of the summons by the respondent by registered post. There is no explanation 'how the respondent had come to possess the copy of the plaint otherwise. In any case this is proof that the respondent was following the case and had not only knowledge of the suit but also had the copy of the plaint in his possession.
24. That is not the entire evidence. The respondent has tried to prove that he did not contribute to the "Daily Nawa-i-Waqt" nor read it. He tried to prove this not only by his own statement but also by producing Abdul Hamid, Newspaper Vendor. But this evidence is of no avail in view of the evidence of Malik Muhammad Hussain R. W. 1, representative of the "Daily Nawa-i-Waqt" who not only proved the Court notice published in that newspaper (Exh. R. 1) but also the fact that a copy of the newspaper was sent to the respondent by postal certificate, Exh. R.
3. This is sufficient to draw a presumption against the respondent that ho must have received the newspaper.
25. The respondent's case is that he is not a subscriber of the. "DaUy Nawa Waqt". If it is so the receipt of the issue of this newspaper through post would have put him to inquiry why that newspaper was sent to him. He must have gone through the whole of it and could not have missed the summons.
26. In order to meet this evidence the learned counsel for the respondent argued that such certificates are very easy to obtain. But there is no reason to believe that the administration of the "
Daily Nawa-1-Waqt" would stoop to such tactics. The argument is absolutely without merit. It is, therefore, clear that the respondent did have knowledge about the suit filed by Sheikh Abdul Haq against him as also of the date of its hearing in the Court of Senior Civil Judge.
27. In these circumstances it is unnecessary to refer to: two reports submitted during the pendency of the application under Order IX, rule 13, given by two Ahlmad, J. H. W. 2 and P. W. 6 that no registered envelope was filed by the petitioner and that the endorsement Exh. R. W. 2/4 ~~ Z `;! S.w.J AitiJ" was a later addition. I have already believed the evidence that it was so filed. These two witnesses have made incorrect statements. In fact it is not believable that they would go through every piece of papers when the record is brought to them in order to find out whether any portion is a later addition or was already there before the case was sent to--the record room.
28. 1 have already stated that the learned trial Court has merely made a bare reference to the evidence of Jaffar Hussain P. W. 3 but did not make any reference to the statement of Mohammed Iqbal P. W.
4. Jaffar Hussain stated that on the 26th of April 1974 he met Sh. Riazul Haq at the corner of the Court street and the Lower Mall corner and came to know from him about the decree passed against Syed Mohammed Anwar. He rushed to the respondent's shop and informed him about the fate of the suit. This proves that his relations with the respondent were friendly. Mr. Riazul Haq R. W. 3 in his statement denied any acquaintance with Jaffar Hussain.
29. The learned Court below relied upon the evidence of Jaffar Hussain on the only ground that he was not cross-examined. He ignored the order sheet dated 28-1-1975 which proves that the statement of laffar Hussain was recorded in the absence of the petitioner or his learned counsel. In fact the learned counsel appeared during the course of examination of the next witness Mohammed Iqbal P. W. 4 who was cross-examined at length. The learned Court failed to take into consideration the statement of Mr. Riazul Haq R. W. 3 denying any acquaintance with Jaffar Hussain. The learned Court thus acted illegally and with material irregularity in the exercise of its jurisdiction by failing to consider these important factors.
30. It is clear from the statement of Jaffar Hussain that he has friendly relations with the respondent. He stated that at the time of his alleged encounter with Sh. Riazul Haq he was accompanied by his friend Iqbal. But for the reason given in the next para. I am not inclined to believe that Mohammed Iqbal P. W. 4 could at all be present at that time. In my view Jaffar Hussain's evidence is also unreliable.
31. Mohammed Iqbal is ,a supporting witness who claimed to be a previous resident of Court Street Lahore but was admittedly at that time resident of Sanda Road, Lahore and was an employee of the Malaria Eradication Program. His office was situated at Garden Town, which must be at a distance of several miles from Court Road. He tried to prove his presence at the said road at the time when he ought to have been going to his office. Admittedly he was not on leave and yet he would like the Court to believe that he remained absent from the office in order to be a witness till 8-10 a.m. He admitted that he had been at the shop of Mohammed Anwar several times earlier and had even been seeing "Pakistan Times" lying in that shop. This is sufficient to prove his friendly interest in the respondent. He stated that he bad gone to Jaffar Hussain in connection with the admission of his sister on the 26th of April 1974 but he admitted that his sister had not been admitted even till the date of his statement in the Court. His statement is, therefore, not reliable.
32. The respondent in his own statement has referred to these persons as his sources of knowledge about the decree but I have already disbelieved him in respect of this as well as some other matters. His evidence could not be relied upon. Nothing could be brought out in the cross- examination of Mr. Riazul Haq R. W. 3 that he was at all acquainted with Jaffar Hussain There is no reason to disbelieve him. I have already found that the respondent had knowledge of the suit as well as its date of hearing. The evidence of any knowledge of the decree through Jatfar Hussain and Mohammed Iqbal is entirely untrustworthy.
33. In view of these findings any irregularity in the service of the summons is not material and the proviso to Order 1X, rule 13 is fully applicable to the case.
34. The learned Judge did not rely upon this service inter alia for the reason that the particulars of the suit published in it were incorrect.
This argument was repeated before me also by the learned counsel for the respondent. I am not impressed by this argument for the simple reason that not only the name of the Court but the names and addresses of the parties are clearly written. The sum of Rs. 45,000 which was the consideration settled between the parties for the sale of the house was also referred in it. It was conceded at the bar that neither there is an other suit for Rs. 45,000 nor any other agreement between the parties on the basis of which a suit for recovery of that amount could be filed by the petitioner. There sufficient reason why the respondent should have felt impelled to inquire about the nature of the suit from the Court of the learned Senior Civil Judge. But that inquiry was not necessary in this case since he already had full knowledge about the suit.
35. It is not, therefore, a case in which the summons in the newspaper can be thrown away as immaterial and irrelevant for this reason also. The learyed counsel for the petitioner relied upon Mst. Ismat Khanum Toor v. Rao Riaz Ali Khan, etc. (1). In that case Rao Riaz Ali Khan was recorded as Rao Ismat Ali Khan in the newspaper but it was held that this was not material. This case supp,)rts the petitioner's arguments on this question.
(1) 1978 SCMR 33 36.The finding about knowledge of the suit and the date of hearin coupled with the proviso to Order IX, rule 13, C. P. C. Proves that the respondent was duly served. The limitation for the application for setting C aside the ex parte decree started in these circumstances from the date of the decree. The application submitted after a month and nine days was thus barred by time.
37. The learned Court below was not right in drawing any inference from the failure of the Court to direct affixation of the notice outside the Court room. This would not vitiate the service by citation since service of notice by affixation in a conspicuous place outside the Court house and upon the house of the defendant is one of the modes of substituted service under Order V, rule 20.
Publication of summons in newspaper is a mode altogether different and is within the scope of the alternative provided by the words "or in such other manner as the Court D thinks fit" in that rule.
38. The learned Court was not legally justified in holding that the date for which the summons was issued in the "Nawa-i-Waqt" was not a date on hearing. Summons may be either for disposal of the suit or for framing of the h. Issues. The summonses on record are summonses of the latter category. Order IX, rule 1 calls the date for which such summonses are issued as 'date of hearing.'
Rule 6 of that order allows the Court to pass a decree against the defendant without recording evidence if notwithstanding service the defendant does not appear when the case is called for hearing. Moreover on the date fixed in the summons the defendant has to file written statement after which the Court may record the statements of the parties or their counsel under Order X, rule 1 and proceed to frame issues. A date for framing of issues is a date on which the Court has to take steps necessary for the decision of the suit and is consequently a date of hearing. For all these reasons the date for which summonses for (taming of issues are issued, is a date of hearing. The learned trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction by ignoring these factors.
39. Before closing this judgment I may refer to an argument of the learned counsel for the petitioner that the learned trial Court bad no jurisdiction to go into the question whether his predecessor was justified in issuing the summons in the newspaper under Order V, rula 20, C. P. C.
This. Argument is without force since in order to find out whether the summons was duly served as required by Article 164 of the Limitation Act, it is necessary to go into such matter.
40. For the reasons given above I allow this petition with costs, set aside the impugned order and dismiss the application of the defendant respondent under Order IX, rule 13, C. P. C.