' ARSHAD NOOR KHAN, J.--- By this judicial miscellaneous application filed under section 12(2) read with section 151, C.P.C., the applicant has prayed for recalling of the judgment dated 16-12-2005 and decree dated 24-1-2006 recorded in Suit No,879 of 2003 by this Court, on the ground that the decree has been obtained by misrepresentation and fraud by the respondent No, l/decee-holder.
2. The facts leading rise to the present application in brief are that the respondent No,1 filed suit for recovery of Rs,3,08,48,805 against the applicant and respondent No,2 stating therein that the respondent No,1 is the statutory body established under Civil Aviation Authority Ordinance 1982 and is responsible for the promotion and regulation of Civil Aviation activities and to develop the infrastructure for safe, efficient, adequate, economical and properly coordinated, civil air transport service in Pakistan besides establishing maintenance and managing of airports in Pakistan. The respondent No,2 is the private limited company having its registered office at Akhtar Centre Tariq Road Karachi and was engaged in the business of installation, operation and maintenance of advertising display signs. The present applicant is the Chief Executive/Director of the respondent No,2. On 28-8-1993 an agreement was executed in between the parties whereby the respondent No,1 granted license in favour of the applicant and respondent No,2 for installation, operation and maintenance of 44 glass fibre reinforced panels (GRP) advertising display unit at designated sites of Jinnah Terminal Quaid-e-Azam International Airport Karachi. The second license agreement was executed between the parties on 31-5-1994 whereby the respondent No,2 and applicant were granted license to operate and maintain neonsign on the upper portion in the pillars in running fronts in the departure and arrival concourse area of Jinnah Terminal with the site plan. It is further alleged in the application that respondent No,2 and applicant were continuously violating agreement on different occasions and in the year 1997, the defendant/respondent No,2 and applicant filed Suit bearing No,435 of 1997 against the respondent No,1 in Civil Court wherein they simply sought injunction against the respondent No,1, the respondent No,2 and the applicant also filed another Suit No,419 of 1999 on 21-12-1999, before this Court in the sum of Rs,60 lacs US dollars and the parties were directed on 21-12-1999 to exhaust the remedy before the Arbitrator as envisaged under section 23 of the License Agreement dated 28-8-1993. Accordingly the matter was referred to the Arbitrator, where the respondent No,2 and applicant failed to participate in the arbitration proceedings and the Arbitrator by order dated 15-8-2001 closed the proceedings and the matter was referred back to the High Court where number of notices were issued to them for joining arbitration proceedings.
3. The respondent No,2 and the applicant at their own whim and wish started violating the terms and conditions of license agreement and started erecting the site by extra pillars and site unauthorizedly for which show-cause notice dated 18-7-1996 and 20-3-1997 were issued, as such the respondent No,1 filed suit against the applicant and respondent No,2 for recovery of Rs,3,08,48,805 with 15% mark-up till the payment is released.
4. The applicant as well as the respondent No,2 were repeatedly served with summonses with all prescribed modes of service but in spite of receipt of notices through T.C.S. And publication in daily newspaper they chose to remain absent, as such they were proceeded ex parte vide order of this Court dated 31-5-2004 and thereafter the respondent No,1 led his evidence and finally the suit was decreed by this Court vide judgment dated 16-12-2005 followed by the decree dated 24-1-2006.
5. The applicant has therefore filed the present application as stated above for setting aside the judgment and decree passed by this Court. The notice of this application has been served on the respondent No,2 through fax by the applicant as well as through T.C.S. But they remained absent.
6. I have heard Mr. Nasir Hussain Jaffery, Advocate for the applicant and Mr. Sanaullah Qamar advocate for the respondent No,1.
7. Mr. Nasir Hussain Advocate for the applicant vehemently contended that the notice of the suit was never served on the applicant, as such the applicant was unaware about the present proceedings. He further contended that the applicant was the employee of respondent No,2 whose services were governed under the principles of master and servant and the suit for recovery against applicant was not maintainable being the paid employee of the respondent No,2. He further contended that the intimation regarding proceedings of the main suit was communicated to the respondent No,2 at Australia and their nonappearance is the sole responsibility of the respondent No,2 who are running their business at Australia, as such the applicant could not be held responsible for the act of the respondent No,2, as such the judgment and decree passed against the applicant may be set aside and suit may be dismissed against him.
8. Mr. Sanaullah Qamar advocate for the respondent No,1 vehemently refuted the contention advanced by the learned counsel for the applicant and has contended that service was repeatedly effected on the applicant and respondent No,2 through all modes of service and they chose to remain absent from the proceedings as such there was no alternate with the Court but to proceed ex parte against them and no grounds for upsetting the judgment and decree passed by this Court have been assigned in the present application, as such the application may be dismissed.
9. I have considered the arguments advanced on behalf of the parties and have gone through the entire material available before me.
10. After filing of the main suit, summonses for service on the applicant and respondent No,2 were issued through bailiff and the applicant refused to accept the notice issued by this Court vide endorsement of the bailiff dated 20-10-2003. The applicant had refused to accept the notice on the ground that he without consultation with his counsel cannot accept the notice. The said endorsement of the bailiff shows that the applicant wilfully and deliberately refused to accept the notice of the main suit, as such he was well within his knowledge about the pendency of the main suit: The refusal of receipt of notice by the applicant is valid service on him under order V Rule 10-A C.P.C., as purpose of service of notice to the defendant is made to inform him about the pendency of lis against him, which has been accomplished, due to his refusal to accept notice. Still the notice for service on him and respondent No,2 were sent through T.C.S. And the certificate dated 4-12- 2003 shows that the said notice was delivered to respondent No,2 on 6-12-2003 and the notice sent through T.C.S. To the applicant dated 4-12-2003 were delivered to him on 6-12-2003 vide certificate of even date issued by the T.C.S. Services. The matter was not ended here and the notices were again repeated through T.C.S. On 24-3-2004 for service on respondent No,2, which again were delivered to them on 27-3-2004 vide certificate of even date of the T.C.S. Services and the notices issued for service on the applicant or the same date were served on him on 25-3-2004 and such certificate of T.C.S. Services is also available on record. In spite of proper service on the applicant and respondent No,2 through T.C.S. And through bailiff, they chose to remain absent, as such notices were also published in daily Dawn dated 23-3-2004 and in spite of such service and publication, the applicant and the respondent No,2 wilfully and deliberately remained absent.
Therefore, there was no alternate for the Court but to proceed them ex parte as the Court did vide order dated 31-5-2004.
11. The applicant also alleged that the judgment and decree has been obtained by the respondent No,1 by way of misrepresentation and fraud but no particulars of misrepresentation and fraud have been stated by the applicant either in his application or in his affidavit wherein he in lengthy details have summarized the facts and figures of the case and in absence of any specific illustration of committing of misrepresentation and fraud by the respondent No,1 in obtaining the judgment and decree, the said allegations are of no avail to the applicant.
12. The applicant has admitted his services as Director in the office of the respondent No,2 and nowhere, in his affidavit attached with the application, has stated that his services with the respondent No,2 come to an end or that the respondent No,2 has wound up all the business and have shifted to Australia and that he is not in touch with them. On the contrary his counsel argued that they have informed to the respondent No,2 about the pendency of the present case. The applicant has also not alleged that his address of service was wrongly mentioned by the respondent No,1 in main suit as defendant No,2 and in absence of such allegations, it could not be said that the defendant while obtaining judgment and decree in their favour against the applicant and the respondent No,2 deliberately mentioned the wrong address of the applicant for ulterior motives, as such in absence of such allegations about wrong address of the applicant, it could not be said that the address of the applicant was wrongly mentioned by the respondent No,1 in the main suit. On the contrary I have gone through the address of the applicant mentioned in the main suit as defendant No,2 and found that his residential address as 27/1, 20th street, Khayaban-e- Tanzeem, Phase-V, Defence Housing Authority, has been mentioned and the same address of the applicant is mentioned on his appointment letter Annexure "A" at page 119 of the application, as such it could not be said that the address of the applicant was concealed malafidely by the respondent No,1 in obtaining decree against him. The applicant alleged the end of business by the respondent No,2 but para.11 of his affidavit to the present application is self-explanatory wherein he did not claim the end of business by respondent No,2. A perusal of contents of para.11 of his affidavit shows that the firm of respondent No,2 is still in existence and he is working as Director Operations. He has also tried to assail the maintainability of the main suit in his affidavit. The assertion made by him in para-11 of his affidavit to the present application, is usefully quoted hereinbelow for the sake of convenience:--- "(11) That it is pertinent to mention here that the suit was incompetent as under license agreement dispute between C.A.A and T.D.I. Were to be referred to arbitration under clause 23 of the said License agreement mentioned above. It is further submitted that the company has already deposited a huge amount i,e, US $ 42,500.00 as security amount to C.A.A., and it is also clearly mentioned in License Agreement that the defendant/judgment-debtor No,2 is Director Operation of TDI International, having head office at Australia Copy of license agreement is annexed herewith as "G".
13. The assertion contained in para-11 therefore, completely shows that still there are business relations in between the applicant and respondent No,2 and the applicant for ulterior motives has come forward to deprive the respondent No,1 from the fruit of the decree obtained by them lawfully through the process of law.
14. For all the aforesaid reasons and circumstances as discussed above, I am of the firm opinion that neither address of the applicant was wrongly mentioned in the main suit nor the respondent No,1 concealed any material fact against the applicant or respondent No,2 in obtaining decree so as to say that they have committed misrepresentation and fraud in obtaining such decree nor the applicant has alleged any specific illustration of misrepresentation and fraud allegedly committed by the respondent No,1 in obtaining decree in the main suit and they were properly served and they themselves chose to remain absent from the proceedings, as such the respondent No,1 could not be held responsible for any illegal act in obtaining the decree. The application has therefore, no merits and the same is hereby dismissed.