1. SYED HASAN AZHAR RIZVI, J.---In this suit for rendition of account and recovery of amount tiled by the plaintiff against the defendant, the defendant has filed C.M,A. No,3416/of 2010 under Order IX Rule 13 r/w section 151, CPC with the prayer to set aside the preliminary decree dated 1-9-2008 and final decree dated 24-9-2009 which have been obtained by plaintiff by misrepresentation and fraud and concealments of facts and C.M.A. No,3417 of 2010 under Order XXXIX Rules 1 and 2 r/w section 151, C.P.C. seeking suspension of the operation and effect of the ex parte final decree dated 24-9-2009 and the attachment order till the final decision of the application under Order IX, Rule 13, C.P.C. Both the applications are duly supported with the affidavits of the defendant.
2. By this order I propose to dispose of both these applications.
3. The case of the defendant is that plaintiff/decree holder who was employed and an agent of defendant's partnership firm namely Messrs Muhammad Younus Lakhani at a monthly remuneration of Rs,700. The plaintiff after two years requested that his employment with the partnership may be converted into a part time employment. Subsequently in the year 1991 the plaintiff requested to be relieved of even the part time job as he desired to work as whole time agent and started to work for the partnership as fulltime agent on commission basis. In the beginning the plaintiff worked zealously but by, passage of time he became indifferent and paid no attention in rendering the accounts timely and property with a consequence that a sum of over Rs,26,000,00 became due from and payable by the plaintiff. The plaintiff in spite of repeated demands to ftilfil his commitments and assurances failed to pay the amount due against him, the defendant firm reported the matter to the police under sections 420 and 406, P.P.C. The plaintiff 1913 due to renewal of his agency and lodging of F.I.R:, he become annoyed and filed the present suit for rendition of accounts and recovery of Rs,60,46,288 mala tidely and with ulterior motives.
4. It is also the case of the defendant that their firm also filed Suit No,523 against the plaintiff for the recovery of Rs,141,04,853 and Messrs Jamil and Jamil Barristers were the defendant's advocate, as they are advocates in the present suit. The address of the defendant in the title of the Suit No,523 of 1993 has been given his office address, ' 516, Karachi Stock Exchange Building, Stock Exchange Road, Karachi and residential address as F-59, Block-5, Park Lane, Clifton, Karachi and plaintiff in the instant suit has all along been fully aware of defendant's both the addresses i,e, office and residential. It is stated that office accommodation belonged to Karachi Stock Exchange and was made available to defendant's firm on a licence fee and now the said office has been allotted to some other party. The plaintiff committed misdeeds, misappropriation to the tune of more than 26,00,000 and failed to make good the loss caused by him and render accounts in spite of defendant's repeated demands. The defendant came to know of the plaintiff/D.H's. misrepresentation and fraud only when the notice of execution application was served upon the defendant on 25-3-2010.
5. Counter-affidavits to the listed applications filed by the plaintiff/D.H. denying the contents made in the applications and affidavits filed by the defendant/J.D and also raised preliminary objections that the applications under reply are misconceived, not maintainable, barred by law and the contentions in the same are untrue; defendant is not entitled to any equitable or discretionary relief having come before this Court with unclean hands, and the applications filed by the defendant with the specific intent to deprive the plaintiff from adopting the due course of law. It is stated that the alleged claim of Rs,26,00,000 is fake and fabricated. The plaintiff did not induce any such alleged loss'and the defendant owed money to the plaintiff as a result of which the plaintiff filed the subject suit for rendition of accounts and recovery of Rs,60,46,288 in which this Court has passed final decree dated 7-9-2009 in favour of the plaintiff. The plaintiff denied that he owed any amount to the defendant and in fact it was the defendant who had illegally and with mala tide intention deprived the plaintiff of his due and legitimate commission and other amounts paid by the plaintiff in good faith to the clientele introduced by the plaintiff to the defendant. In order to harass the plaintiff and force him to discontinue demanding the commission owed by the defendant to the plaintiff, the defendant lodged a false F.I.R. against the plaintiff. The defendant with mala fide intentions avoiding the payment of just share of the plaintiff created inconvenience and caused loss to the plaintiff by registering a totally false case under P.P.C. It is stated that the defendant tiled Suit No,523 of 1993 against the plaintiff but failed to pursue the said suit and in fact deliberately avoided coming before this Court as a result of which the said suit was dismissed for non- prosecution on 17-3-2003. It is further stated that defendant was served repeated notices on the address that he had himself provided in the written statement tiled in this suit. It is stated that defendant throughout had provided his office address, being office No,516, 5th Floor, Stock Exchange Building, I.I. Chundrigar Road, Karachi, and the defendant had received earlier court notice on the same address. It is also stated that defendant had been well aware of the fact that a suit had been filed against him and was still pending in this Court. It is further stated that the defendant deliberately avoided coining before this Court in spite of several notices served upon him that the final decree was passed ex parte. Therefore the plaintiff prayed for dismissal of both the applications.
6. Mr. Asim Iqbal, learned counsel for the defendant has argued on the same line as stated in the supporting affidavits of the applications. He argued that plaintiff was succeeded to get the ex parte decree in his favour by misrepresentation, fraud and concealment of -true facts. He argued that plaintiff was time and again directed to file fresh address of the defendant, but the plaintiff intentionally and deliberately having full knowledge of the defendant's residential address failed to provide the same. He has argued that the defendant was not, aware that his counsel Mr.. Bag* Hussain had expired and after his death no notice ever served on the defendant despite repeated directions of this Court. He has drawn attention of the Court to the various diary-sheets whereby it was directed. that direct notices be issued to the defendant time and again, which were returned unserved. He further contended that the defendant tiled application under section 12(2), C.P.C., which 'was not pressed. He argued that in Suit No,523/ 1993 the defendant in the title of plaint mentioned his office address as well as his residential address, wherein the plaintiff counsel Mr. Ch. Jamil Ahmed has filed written statement. Learned counsel urged that the plaintiff throughout the suit proceedings intentionally and deliberately not complied with the orders of the Court and suddenly while filing the Execution application, he cunningly filed both the addresses of the defendant, which were mentioned in the title of plaint of Suit No,523 of 1993 and get the residential house attached, which is in the name of defendant's mother. Learned counsel in support of his contention has placed reliance, on the case of MUHAMMAD TAHIR v. EMIRATES BANK. INTERNATIONAL PJSC AND ANOTHER (2010 CLC 1545), MUHAMMAD AYUB PATEL v. HASHAM (1997 M LD 1838) and MESSRS REHMAN WEAVING FACTORY v. INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN (PLD 1981 SC 21).
7. In rebuttal, Mr. Muhammad Ilyas Khan Tanoli learned counsel for the plaintiff/D.H. contended that the defendant by filing misconceived applications deprived the plaintiff of his due and legitimate commission and other amounts paid by him in good faith to the clientele introduced by the plaintiff to, the defendant and the defendant with mala fide intention avoiding the payment of just share of the plaintiff created inconvenience and caused loss to the plaintiff. He further contended that the defendant is very much aware of the present proceedings as he has filed written statement in the suit and after settlement of issues he intentionally and deliberately not coming before this Court. He urged that the defendant throughout provided his office address and, had received earlier court notice on the same address. He further urged that, this Court vide order dated 29-4-2008 had observed that defendant was avoiding to receive the notice and further observed that plaintiff did not have any other address of the defendant. As such, there was no requirement to repeat the notice again and again. He, therefore, argued that the record of the case indicates that defendant deliberately avoided coming before this Court in the instant suit and habitually avoided coming before this Court as evident from the proceedings of the Suit No,523 of 1993, which was dismissed for non-prosecution on 17-3-2003. He also argued that defendant is fraudulently trying to misrepresent this Court that he was not aware of the suit. He also argued that decree passed by this Court is not ex parte as written statement has been filed and Issues have been framed in the suit. He lastly argued that plaintiff/DH not aware of the fact that the attached property does not belong to the defendant. He, therefore, prayed that both the applications. are liable to be dismissed.
8. Learned counsel for the plaintiff in support of his submission has placed reliance on the cases of SECRETARY EDUCATION DEPARTMENT OF N.-W.F.P. AND OTHERS v. ASFANDIAR KHAN (2008 SCM R 287), NATIONAL BANK OF PAKISTAN v. MIAN ABDUL MAJID AND 2 OTHERS (1984 CLC 2893), TARIQ MAHMOOD v. MST. ZARDA BEGUM AND ANOTHER (1995 CLC 1102), MUNAWAR ALI v. AAMER NAVEED (2008 CLC 543), SHER MUHAMMAD AND OTHERS V. KHAWAJA MAZHAR AND OTHERS (2009 YLR 1609) and STATE LIFE INSURANCE CORPORATION OF PAKISTAN v. FAZAL AND SONS (PVT.) LTD. (2010 CLC 1895).
9. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case law cited at the bar.
10. It is an admitted fact that plaintiff was employed with the defendant and that the defendant was served with the notice of the instant suit and filed his written statement so also Issues. There is no denial that another Suit No,523 of 1993 filed by the defendant against the plaintiff was dismissed for non-prosecution. The dispute arose when the defendant counsel Mr. Baqir Hussain had expired and the suit was at the stage of record of evidence. Thereafter this Court had ordered for issuance of intimation notice directly to the defendant on 30-1-2003, 27-2-2003, 8-5-2003, 15-8-2003, 25-8- 2003 and on 12-9-2003 it was ordered that "Intimation notice issued repeatedly but apparently defendant is avoiding to receive the same. Office is directed to issue fresh notice to the defendant and in the event defendant is not available or avoided to receive the same, the notice may be pasted on the outer door of the office of the defendant." The diary-sheet further indicates that on 29-9-2003 the side of the defendant was closed and it was ordered that the matter be put up for arguments. When the matter came up for arguments on 7-10-2003 it was again ordered for issuance of intimation notice to the defendant. The diary sheet dated 12-2-2008 shows that "Notice issued to the defendant has returned with the endorsement that the defendant is not available at the given address. Plaintiff is directed to provide fresh address of defendant." On 29-4-2008, Ms. Benazir advocate holding brief for Mr. Muhammad Jamil mil advocate for the plaintiff is present and stated that they have no other address except the address which was given in the title of the suit.
11. It is apparent on record that defendant has filed Suit No,523 of 1993 wherein he has mentioned his office and residential addresses and in that suit the defendant (plaintiff in the present Suit) has engaged Messrs Jamil and Jamil Barristers and has filed written statement on behalf of the defendant. When the Court had ordered the plaintiff to file fresh address of the defendant he made statement that they have no other address except the office address mentioned in the title of the suit. The statement made on behalf of the plaintiff is incorrect as the plaintiff and his counsel who was also appearing in Suit NO.523 of 1993 had full knowledge of the defendant residential address and after passing of final decree he has mentioned the saidaddress in the execution application and succeeded to get attachment of the property No,F-59, Block-5, Park Lane, Clifton, Karachi, which is in the name of defendant's mother and in the said Execution Mr. Atif Awan learned-. counsel for the intervenor has moved C.M.A. No,345 of 2010 for release/discharge of the said property. It is clear from the record that the plaintiff had full knowledge of the residential address but despite repeated orders of this Court he intentionally and deliberately concealed the residential address of the defendant and after obtaining the final decree mentioned the same in 'the Execution proceedings. Further, the case law cited by the learned counsel for the plaintiff/D.H. is not applicable to the case in hand. It is also a settled principle of law that matters should be decided on merits rather than on technicalities. The intimation notices issued to the defendant on his office address have returned unserved on one reason or the other.
12. In view of the discussion made above, both the applications are allowed and set aside the preliminary decree dated A 1-9-2008 and final decree dated 24-9-2009. Office is directed to fix the matter for recording of evidence in the second week of March, 2011.