' This order will dispose of Appeal No, F. A.
0. 298 of 1978 and F. A.
0. 55 of 1979 as both are inter-related for the reasons to be shown in the judgment.
' A. O. No, 298 of 1978
2. The present appeal is directed against the order of Mr. Abdur Razzaq, Civil Judge, Lahore, dated 8th January, 1978 by which the application for setting aside ex parte decree filed by the appellant had been dismissed.
3. The facts of the case are that on 25th January, 1977 a suit for the recovery of Rs, 1,99,697.00 was filed by the respondent under the Fatal Accidents Act, 1855 for the death of her husband Ahmad Ali who died on 28th January, 1966 in an accident which had taken place on 25th January, 1966 on account of a pick-up van having collided with a rickshaw and damages were being claimed on account of the negligence of the owners of the pick-up van and the rickshaw driver. In the suit originally filed on the 25th of January, 1967, defendant No, 1 as shown in the plaint, was a firm with the following description :- "M/s. S. A. Rahman & Sons, G. T. Road, Post Office, Baghbanpura, Lahore."
' The cause of action shown against the defendant No, 1 was disclosed in paragraph 4 to the effect that the rickshaw in question was hit by a pick-up van No, LE-3009 driven by defendant No, 5 during the course of his employment of defendant No,
1. National Security Insurance Company was shown as defendant No, 3 because the aforesaid van was insured with it. It was further stated that the accident took place due to the wrongful, rash and negligent driving of defendants Nos. 5 and 6 being the drivers of the van and rickshaw respectively. A decree for the recovery of an amount of Rs, 1,99,697.00, as damages was prayed against the defendants jointly and severally. It would be, therefore, appreciated that the defendant No, 1, the firm, was being made liable on account of its vicarious liability for the negligence of the driver of the van in question. The firm had not even been sued through any of its partners. Even the name of S. A. Rahman did not appear in the plaint as one of the partners. S. A. Rahman died on the 18th December, 1970. An application was filed on 15th March, 1971 to bring his legal representatives on record without disclosing what was his connection with- the firm and whether he was to be substituted for defendant No,
1. Since the point which is to be ultimately decided here is based on the legality of the legal representatives of S. A. Rahman, therefore, the only relevant paragraph of the application for bringing the legal representatives of S. A. Rahman on record is reproduced below :-- "That Mr. S. A. Rahman has died on 18th of December, 1970 leaving behind the following heirs :-
(1) Haji Abdul Qadir
(2) Abdul Hamid
(3) Abdul Rauf
(4) Abdul Shakoor
(5) Abdul Haq ' all sons of S. A.Rahman, care of M/s. S. A. Rahman & Sons, G. T. Road, Baghbanpura, Lahore."
4. The learned trial Court while accepting the application scored off the name of the original defendant No, 1, 1. e, M/s. S. A. Rahman & Sons and in its place substituted the names of six sons indicated above and since they had all been shown c/o M/s. S. A. Rahman & Sons, therefore, no process whatsoever was issued in their names on their actual addresses. On account of the processes issued in the circumstances indicated above Abdul Shakoor and Abdul Hamid were represented while the present appellants were proceeded ex parte and an ex parte decree was passed against them on 13th July, 1977. On 27th November, 1977 an application was made under Order IX, rule 13 read with section 151, C. P. C. For setting aside the ex parte decree dated 13th July, 1977. It seems that the heirs of S. A. Rahman impleaded as a party did not know that original defendant No, I was not their father but a firm in which he was only one of the partners. The application proceeded on the ground that the appellants had only come to know on coming to Lahore that they had been proceeded ex parte and that they were the residents of Karachi and the addresses had been given in the title of the petition. The appellants could not be served on the addresses given above, and therefore, a publication was made for substituted service for 23rd July, 1975 and notice under registered post were also issued. In an order passed by the Court on 20th October, 1975 in which counsel for Abdul Haq appellant was shown to be present and the joint counsel for Sh. Abdul Hamid and Abdul Qadir were shown to be present. This order it appears to have been passed in routine and forms the basis of the orders of proceeding ex parte against the appellant which was passed on 20th December, 1975. In the intervening date that is 20th November, 1975 both the parties were shown to be represented by their counsel. On the aforesaid application for setting aside the ex parte decree following issues were framed.:
(1) Whether there are sufficient reasons for setting aside the ex parte decree ? 0. P. A.
(2) Whether the petition is within time ? 0. P. A.
(3) Relief,
5. The appellants in support of the above issues led evidence to the effect that they were carrying on their business at Karachi and that they had never engaged Kh. Zia-ud-Din, Advocate and for that matter any other counsel. It was also shown that there was no power-of-attorney authorizing any counsel to represent the present appellants in the proceedings. A number of documents were also produced by the appellants which comprised of income tax assessments made at Karachi, identity card issued from Karachi apart from the oral evidence and also producing Kh. Zia-ud-Din Naik who was said to have represented the appellants in the order dated 20th October, 1975 and in the subsequent order dated 20th November, 1975. It was also shown that the publication made in the newspaper was also given on a wrong address and that the notices under the registered cover were also issued at a place where the appellants had never lived. The case of the appellants was that they had settled at Karachi since 1948 and never lived in Lahore. On the basis of the oral and documentary evidence it was argued before the learned trial Court that the appellants were never served nor they appeared on any of the dates. The learned trial Court though had apprised himself of the evidence on record yet for finding whether there was sufficient cause for setting aside the ex parte decree solely relied on the order dated 20th October, 1975 wherein the present appellants were shown to have been marked as present. A presumption of truth was attached to this order and therefore, neither evidence of the appellants was either treated to be false and no finding as to its veracity was given. Another point which prevailed with the learned trial Court was that the appellants had the knowledge of filing of the suit on account of their relationship with Abdul Shakoor and S. A. Rahman deceased. Strangely enough without adverting to the fact whether the firm's name had been scored off and substituted by the names of six sons of S. A. Rahman the learned trial Court relied on the provisions of Order XXX, rule 3, C. P. C. And treating them as partners without there being any evidence to that effect considered the same to be sufficient. The conclusion arrived at was to the effect that after the death of defendant No, I the firm was managed and controlled by Abdul Shakoor, and therefore, service on one of the persons who controls and manages the partnership was held to be valid under Order XXX, rule 3, C. P. C. And for this reliance was placed on PLD 1957 Lah.
270. As has been already indicated in the narration of the fact that the Court was never conscious nor the plaintiff had made an application for the service of the firm alter the death of S. A. Rahman one of its partners and no one had ascertained as to who are the partners actually carrying on the business and the son of S. A. Rahman deceased had been substituted as if he was the original defendant No, 1 and this is supported from the action of the Court in striking of the record the firm's name and its substitution by the heirs of S. A. Rahman in their individual capacity. This aspect of the case was completely ignored by the learned trial Court.
6. The learned counsel for plaintiffs/respondents wanted that the ex parte decree be maintained under the circumstances and the order of dismissal of the application under Order IX, rule 13, C. P.
C. Should be sustained. I am afraid in the circumstances of the case as I have detailed above after the perusal of the entire record the impugned order cannot be upheld. It is established from the record that the respondent No, 1 had made an application for the substitution of the legal heirs of S. A. Rahman and the firm had never been sued through S. A. Rahman. It was for the first time after the application for the bringing the legal representatives of S. A. Rahman deceased on record that a new cause of action was shown in paragraph 4 of the amended plaint which was definitely not the case of the respondent in the original suit. For the sake of convenience paragraph 4 of the amended petition dated 3rd September, 1975 is reproduced below : "4. That the rickshaw in question was hit by a pick-up van No, LE-3009 driven by defendant No, 5 during the course of his employment of S. A. Rahman (now deceased and survived by defendants Nos. 1 to 1 (c) and the same being insured with defendant No,
3. As a result of the accident late Ahmad Ali Khan sustained multiple injuries and was removed to the Mayo Hospital on the same day. Later he died on 28th January. 1966 as a result of the injuries caused during the accident. The accident took place due to wrongful, rash and negligent driving of defendants Nos. 5 and 6."
7. From the perusal of the evidence on record it is established beyond any reasonable doubt that the appellants were resident of Karachi and had settled there and there was no rebuttal whatsoever to the documentary evidence produced by the appellants. Now the question is whether the Court intended the service of the partners after the death of S. A. Rahman or wanted the representation of one of the partners who controlled the affairs of the firm nothing is clear. The process issued was at the address of Baghbanpura where the present appellants had never lived and was at the address of the firm. Even it is not shown in spite of the denial of the appellants as to who were the original and survived partners of the firm. The only basis, therefore, which is left is the order dated 20th October, 1975 wherein the appellants are said to be represented by a counsel. The appellants examined Kh. Zia-ud-Din, Advocate (A. W. 5) and the power-of-attorney, in his favour, were duly exhibited to show that he had never been engaged by the appellants. From the tenor of the order dated 20th October, 1975 it is clear that it was a routine order and the learned trial Court did not apply its mind as to who was being represented on the basis of the power-of-attorney produced on record. Definitely the appellant were never present in person. Refusal to set aside the ex parte decree only on the basis of knowledge of the proceedings on account of relationship with Abdul Shakoor and S. A. Rahman deceased in the circumstance of the case was not justified.
8. As I have already pointed out that the original defendant No, 1 was the firm and had not even been sued through S. A. Rahman the respondent No, 1 was responsible entirely for misdirecting the Court fo the substitution of the respondent No,
1. If the respondent No, 1 wa required to be re-served after the death of S. A. Rahman who had been prosecuting the case on behalf of the firm then the only provision applicable would be Order XXX, lute 4 of the Civil Procedure Code which for the sake of convenience is reproduced below :-
4. Right of suit on death of partner.-(l) Notwithstanding anything contained in section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have-
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
9. This rule provides that where a partner dies during the pendency of the suit, the suit does not abate but may be continued by or against the firm. Reliance in this connection may be placed on Moolchand v. Mulchand (1) and Utanks Mal Aukarji v. Tarak Nath Seal (2). The relevant observations as contained at page 12 of the earlier judgment are reproduced below :- "The compromise decree was with the firm and, therefore, under Order XXX. Rule 4, C. P. C. If one of the persons who was a member of the Firm died during the pendency of the suit it would not be necessary to join the legal representative of the deceased as a party to the suit, and therefore.
Assuming that the suit was a pending suit after the compromise decree there is no question of abatement on account of the death of Kali Prosanna Seal."
(1) AIR 1923 Lah. 197
(2) AIR 1929 Cal. 11 ' When I pointed out the above facts which were apparent from the record the only point made out was that this was never the case of the appellants before the learned trial Court. However in deciding this appeal there is no bar of the Court taking note of the facts proved on record for the just decision of the case.
10. In view of the above discussion the order dated 28th September. 1978 passed by Mr. Abdul Razzaq Bhatti, Civil Judge, Lahore is set aside as there being no sufficient grounds to proceed ex parte against the appellants and also the ex parte decree dated 30th July, 1977 is set aside on account of the defects pointed out above. The learned trial Court is directed to restore the firm as defendant No, I and proceed according to law in the light of the observation made above. In the circumstances of the case there will be no order as to costs.
' F. A.
0. No, Si of 1979
11. The order impugned in F. A.
0. No, 55 of 1979 had been passed on the objection in the execution of the ex parte decree dated 30th July, 1977 which has been set aside in view of the above decision in relation with F. A.
0. No, 298 of 1978.
12. The facts giving rise to this appeal are that the house of Mst. Surraya Jabin, wife of Abdul Hamid one of the defendants and impleaded as one of the legal representatives of Abdul Hamid had been attached. This house originally belonged to Ghulam Rasool who purchased it from the Lahore Improvement Trust as it was then said to have been sold to Mst. Surraya Jabin. The case of the decree-holder is that Abdul Hamid was the real owner as he has been shown to be the owner in the assessm ent record and he had been dealing with the property as the said property had been mortgaged at times and had redeemed it and the treasury challans were also in the name of the aforesaid Abdul Hamid. In order to prove the facts, in the year 1961-62, Exh. R/1, 1976.77 R. H, order of assessm ent R. 4, mortgage deed R. 5 and the document redeeming the mortgage R. 7 and the treasury challans Exh. R. 8, 9, 10 and 11 have been produced. On the other hand, the objector had produced Ghulam Rasool, an official from the L. D. A. Mohammad Jamil 0. W. 2, Mohammad Afzal 0.
W. 3, Abdul Ghani O. W. 4 being the witnesses of the transfer application and H. Maslehuddin a brother of Mst. Surraya Jabin 0. W.
6. The registered sale-deed in the name of Ghulam Rasool was also exhibited and the receipt of the payment issued by Mst. Surraya Jabin has also been produced as Exh. O.
2.
As I have indicated in relation to the narration of the facts of F. A.
0. No, 298 of 1978 that originally the defendant No, 1 was the firm and only the assets of the firm could be attached, and therefore, the attachment of the property of Abdul Hamid would not be justified unless it could be shown that he was a partner in the firm or that he had the assets of the firm in his hands. He could only be made liable as heir of S. A. Rahman in case his personal property was liable to be attached on account of his being a partner in the firm. As the ex parte decree has been set aside, therefore, this appeal is also accepted with no order as to costs.