' KHALID ALI Z. QAZI, J.--Through this application under section 12(2) read with section 151 the applicant/defendant No,2 seeks recall/set aside the ex parte short judgment dated 12-5-2005 as well as detailed reasons dated 24-5-2005 as well as the ex parte decree dated 12-5-2005, which have been obtained by the plaintiff by practising fraud and misrepresentation and concealing the material facts as well as concealing the correct addresses of the defendants Nos.1 and 2 which were fully known to the plaintiff.
2. Brief facts of the case as stated in the supporting affidavit of the application are that it is in the well knowledge of the plaintiff that there is no company existed in the name and style of Novell Data Systems Pakistan (Pvt.) Ltd. And it is dormant since 1995. It is stated that there is no such office of defendant No,1 on the address given by the plaintiff in the plaint i.e, 2-A, 2nd Floor, Block-6, P.E.C.H.S., Karachi, its correct address was "Trade Center, Plot No,A-14, Block 7/8, Union Commercial Area, K.C.H.S. Union, Main Shahrah-eFaisal, Karachi, which was well within the knowledge of the plaintiff, more particularly, the address of the applicant/ defendant No,2 i.e, 306-Sharfabad, Bahadur Shah Zafar Road, Karachi, was also well within the knowledge of the plaintiff and the present address of the applicant i.e, 91/3, 24th Street, Khayabanee-Rahat, Phase-VI, D.H.A., Karachi was also well within the knowledge of the plaintiff but the plaintiff did not provide these addresses to this Court for service upon the defendants, the mala fide of the plaintiff is evident from the fact that he arranged seizure of applicant's vehicle No,BD-0181 from the current address of the applicant but never arranged issuance of any notice of the suit or the execution on the current address of the applicant. It is further stated that there were other directors of the defendant No,1 who were not made party in the suit as liability of every director of a company is always limited as in his personal capacity according to his share holding, however, applicant had already resigned from the directorship of the defendant No,1 as far back as on 15-6-1996, further, the applicant has not signed any finance agreement or contract.
3. It is further the case of the applicant that Mr. Justice Mushir Alam, who was counsel of applicant was conducting the case, however, upon his elevation as a Judge of this Court, the applicant was away from the proceedings for the above matter during the period 12-5-1996 and mostly remained out of the country. It is stated that in the year 2000 when he and his family returned to Pakistan and again started residing at 306-Sharfabad, Karachi, the plaintiff by misrepresentation and fraud despite full knowledge about his then address, which he has been filed before this Court on 2-5- 1996 along with his rejoinder to the counter-affidavit filed by the plaintiff it was specifically mentioned his address as 306-Sharafabad Karachi. It is further stated that despite the above facts on 13-4-2005 the Court treated the service held good on the basis of publication in daily Dawn. It is submitted that applicant never subscribed the daily Dawn, more particularly, perusal of the publication clearly shows that it was only in respect of application under Order VI, Rule 17, C.P.C. And the date had been mentioned as 22-9-2004, therefore the applicant was never ever in the knowledge of the proceedings of the matter on 13-4-2005 as well as 12-5-2005. It is further stated that this Court erred while declaring the defendant No,2 as served and passed the judgment and decree behind the back of the defendants without providing them opportunity to defend the matter, which deserves to be set aside and the same has been procured by the plaintiff by fraud and misrepresentation, despite the plaintiff was fully aware of the correct address of defendant No,2 as well as defendant No, 1 .
4. After filing of this application on 30-5-2008 notice was directed to be issued to the plaintiff and defendant No,
1. In response to the notice counter-affidavit of Amanullah H. Sattar, General Manager of the plaintiff has been filed, wherein it has been stated that the present suit was filed on 10-4-1994 and after institution of the present suit, several summonses were issued against the defendants, which were duly served upon them, therefore, in the month of August, 1995 Mr. Mushir Alam, advocate appeared and filed his Vakalatnama on behalf of defendant No,2. Thereafter on 29-8-1995 defendant No,2 filed an application C.M.A. No,4243/1995 under Rule 159 of Sindh Chief Court Rules along with supporting affidavit for setting aside the order dated 1-3-1995 debarring him to file written statement. It has stated that defendant No,2 also filed written statement on 29- 8-1995, but it was not taken on record and case was adjourned to filing objection oh aforesaid application. On 10-1995 counter-affidavit to said application was filed, which was also replied by defendant No,2 through his rejoinder dated 2-5-1996 and after hearing the parties the application was allowed subject to payment of cost of Rs,5,000 and the written statement was taken on record.
It has further stated that issues were framed on 14-4-1997 and the matter was fixed for evidence, therefore, the defendant No,2 himself proved that he was ruiming his business at the title address of plaint till 1997 and was in attendance on record of the present case from 29th August, 1995 to 14th April, 1997 and was well aware from present suit and during this period he did not raise any objection of wrong address or service upon him. Thereafter he completely disappeared from case proceedings, which shows the mala fideness of the defendant No,2. Once again several sununonses were issued against him,. But he failed to turn up and suit was decreed on 12-5-2005 against him. It has been admitted that defendant No,2 has resigned from directorship of defendant No, I .As far back as on 15-6-1996, but as per record of the case he was regularly appearing in the present suit till 4th October, 1997.
2. It has also been stated that defendant No,2 once again appeared after 10 years when his vehicle was attached during the execution proceeding therefore he is not entitled for any relief or leniency from this Court. It has specifically been stated that defendant No,2 himself admitted that he returned to Pakistan in the year 2000 but inspite of that he did not take any bother to appear and describe his disappearance, before this Court and abused the process of law, therefore, after issuance of several summonses and publication of matter in daily Dawn, the case was rightly decreed. He stated that the application is liable to be dismissed with heavy cost.
3. In response to the counter-affidavit filed by the plaintiff, the applicant filed affidavit-in-rejoinder and denied the each and every contents of the same. It is submitted that although the deponent of the counter-affidavit claims himself to be the General-Manager of the plaintiff, but no Board Resolution is filed authorizing him to file such counter-affidavit, hence the same is liable to be discarded, lt is submitted that in violation of the orders of this Court for service upon the defendants afresh on their correct address, the entire notices and summonses, as stated in the counter- affidavit, were issued during the years 2003 , 2004 and 2005 on wrong addresses intentionally and deliberately, although the correct address were fully known to and available with the plaintiff, but the plaintiff concealed the same from this Court in order to obtain a decree by way of misrepresentation, forgery and fraud. It is further stated that it is well settled principle of law that the cases should not be disposed of on the basis of technicalities, instead the same should be decided on merits after recording of evidence, therefore, the applicant is entitled to natural justice by providing an opportunity to put up his defence and led evidence for disposal of the case on merits.
4. I have heard Mr. Khawaja Shamsul Islam, advocate for the applicant and Mr. Muhammad Irfan, advocate for plaintiff and also perused the material available on record, which goes to show that summons were issued to defendant No,2 at 2-A, 2nd Floor, Block-6, P.E.C.H.S, Karachi, where no company in the name of Novell Data Systems Pakistan (Pvt.) Limited is existed since 1995. More particularly, there is no such office of defendant No, 1 and the correct address is Trade Center, Plot No,A-14, Block 7/8, Union Commercial Area, K.C.H.S. Union, Main Shahrah-e- Faisal, Karachi. It further revealed that plaintiff was well within the knowledge of the address of defendant No,2 i.e, 306- Sharafabad, Bahadur Shah Zafar Road, Karachi. Besides this address, the plaintiff was also well within the knowledge of the applicant's address i.e, 91/3, 24th Street, IGiayaban-e-Rahat, Phase-VI, D.H.A. Karachi, Perusal of order dated 13-4-2005 reveals that notice have not been served upon the defendants, as bailiff has reported that defendants have shifted from the address given in the plaint. It is an admitted fact that Mr. Mushir Alam was the counsel of the defendant No,2 and filed written statement on his behalf, but after the elevation of Mr. Mushir Alam as Judge of this Court the defendant No,2 was away from proceedings as he mostly remained out of the country and after his return to Pakistan he started living at 91/3, 24th Street, Phase-VI, D.H.A., Karachi. As regards the publication of notice in daily Dawn, learned counsel for the applicant has submitted that the publication was made only in respect of C.M.A. No,2714/2003 under Order VI Rue 17, C.P.C, and not for the purpose of evidence. The publication was also mentioned the same address on which the notice was issued to defendant. Additionally, the address of defendant No,2 is available on Court file, but no notice was issued to him on that address, lt is established from the record that no notice on correct address of the applicant/ defendant No,2 was ever issued and service was not held good. Further, the plaintiff failed to get the notices issued on the address as mentioned in the affidavit-in- rejoinder to the counter-affidavit filed by the plaintiff, wherein the applicant clearly mentioned that he is residing at "306- Sharfabad, Bahadur Shah Zafar Road, Karachi.
2. The plaintiff/decree-holder has also filed Execution Application No,17 of 2008 in this Court on 11-3- 2008 praying therein for attachment of movable and immovable properties of judgment-debtors Nos.l and This Court vide order dated 15-4-2008 has allowed application bearing C.M.A.
No,254/2008 and ordered for impounding the vehicle SSANGYONG MOSSO Jeep bearing registration No,BD-0181, Engine No,66592522510709, Model 2005 owned by the judgment-debtor No, 2, which is under the custody of Nazir of this Court.
7. I have been able to lay my hand on the following judgments:-
(1) 2002 SCMR 664;
(2) 2002 CLC 932;
(3) PLD 1980 Lahore 668;
(4) 2002 CLD 157;
(5) 2003 SCMR 181; ' In the case of Ahmed Khan v. Haji Muhammad Qassim and others (2002 SGMR 664), ex parte decree was set-aside on the ground that defendant was condemned unheard as he did not reside at the address given in the plaint when the summonses were issued and that there was no proof of the fact that the trial Court took serious steps to effect personal service of the defendant before order for publication of notice in press was passed.
' In the case of Zulfiqar v. Muhammad Jan (2002 CLC 932), ex parte decree was set aside on the ground that endorsement on the back of summons did not show that service of summons had been effected in accordance with the provisions of Order V. Rules 16,18 & 19, C.P.C. Further more the trial Court before proceedings ex parte had not examined the process server on oath.
' In the case of Sanaullah Gill v. Mst. Elveena (PLD 1980 Lahore 668), ex parte decree was. Set-aside on the ground that decree on service of notices cannot be passed unless served through summons.
' In the case of Tanveer Rasool Roller Flour Mills (Pvt.) Ltd. v. MAPCO through Chief Secretary and another (2002 CLD 157), it has been held that a legal person like a company functions through its Directors, Managers, agents, representatives and employees i.e, the natural person under the law, they continue to retain their respective independent indentities and separate personalities and do not get merged into each other.
' In the case of Riaz Hussain v. Muhammad Akber and others (2003 SGMR 181), the Honourable Supreme Court of Pakistan has held that mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.
8. Under the above circumstances, in view of the settled principles of law that matter should be decided on merits rather than on technicalities, the application is allowed and judgment and decree dated 12-5-2005 is set aside. Applicant/defendant B No,2 is directed to put up his defence and lead evidence for disposal of the case on merits. Office is directed to fix suit No,243/1994 in the second week of November, 2008.
9. In view of the above order, the orders passed in Ex. Application No, 17/2008 dated 15-4-2008 and 30-5-2008 are also set aside. Nazir is directed to release the vehicle SSANGYONG MOSSO Jeep bearing registration No,BD-0181, Engine No,66592522510709, Model 2005, which was impounded vide this Court order dated 15-4-2008 and handover the same to judgment-debtor No,2 after proper verification.