1. MUHAMMAD HALEEM, ACT. C. J.-This appeal, by special leave, .Arises from the judgment of the Lahore High Court, Lahore, dated 11th of "June, 1975, by which Civil Revision No. 358 of 1975 was allowed and the order of the trial Court, dismissing the application for setting aside the ex parte decrees, preliminary and final, was restored.
2. One Ghulam Mohyuddin died on 12th of August, 1963, in suspicious circumstances, leaving him surviving two widows, Mst. Jamila and Mst. Bakbt Bano ; and from the former minor son Islamuddin and a minor daughter, Mst. Razia Sultana and from the latter, two sons Mushtaq Hussain and Gulzar Hussain and a daughter, Mst. Sardar Akhtar. He left both movable. And immovable properties. As the suspected cause of death was poisoning; Mst. Bakht Bano was prosecuted for committing his murder and on being convicted, she was sentenced to death. Mst. Jamila, on her behalf and as next friend of the minors, Islamuddin and hlst. Razia Sultana, instituted a suit before the Civil Judge, Rawalpindi, for partition, separate possession of 29/64th share in the properties left by the deceased, Ghulam Mohyuddin, and for rendition of accounts. This quantum of share was calculated on the basis that Mst. Bakht Bano was not entitled to inherit the widow's share on account of her involvement in the murder of her husband. Further, the, cumulative share of respondents 4 to 6 was shown to be 35/64th.
3. Respondents 4 to 6 were duly served and they filed their joint written statement on or about 15th of June, 1965. The summons, issued for service on the appellant for appearance on 7th of October, 1974, was returned unserved as it was reported that she had been convicted and sentenced to death on 19th of September, 1964, and was confined in the death-cell at Peshawar Jail.
4. The trial Court next issued summons for her appearance in Court on 9th of November, 1964, and sent it for service on her to the Superintendent, -Central Prison, Peshawar, who returned it under his endorsement No. 3475 dated 4th of November, 1964, after service on her with the statement, duly thumb-marked by her, that as she was confined in the death-cell, she was unable to defend the suit and that it be adjourned till the final decision of the criminal case pending against her. This was followed by another summons for appearance on 9th of March, 1965, alongwith the "Parcha Tarekh Peshi" which process was served on her through the Superintendent, Central Prison, Peshawar, and was returned with the endorsement that she was duly informed of the date -and that she would appear on the date fixed through her counsel.
5. The trial Court held that although she was duly served yet none appeared for her. It further gave 8th of April, 1965, for the filing of the written statements. However, no written, statement was filed on her behalf ; and on 10th of December, 1965, as neither the appellant nor respondents 4 to 6 attended the Court, the case was ordered to proceed ex parte against all of them. On 13th of January, 1966, the trial Court passed an ex parte preliminary decree against them followed by a final ex parse decree on 26th of April, 1967. It appears that on 4th of July, 1.966, a joint application was presented by respondents 4 to 6 and' the appellant through her counsel Sh. Hamid Mahmood, seeking to set aside the ex parte decrees. From the record it does not transpire that Sh, Hamid Mahmood had obtained a power of attorney from Mst. Bakht Bano. This application was dismissed in default on 17th of October, 1966 ; and this order assumed finality as respondents 4 to 6 did not further challenge it.
6. Thereafter, respondents 4, 5 and the appellant filed separate applications on 20th of April, 1971, 2nd of January, 1969, and 19th of February, 1969, respectively, seeking to set aside the ex parse decrees which were dismissed on 11lth of May, 1974. Against this order the appellant and respondent No. 4 filed separate appeals which were allowed by the Additional District Judge, Rawalpindi, by his order dated 25th of February, 1975, with the result that the ex parte decrees were set aside. Respondents 1, 2 and 3, by two separate Revisions, challenged this order in the Lahore High Court which were allowed as aforementioned and the impugned order of the Additional District Judge, Rawalpindi, was set aside.
7. While dealing with the case of the appellant, the High Court held that she had admitted having been served with the summons for defending the suit but the Additional District Judge erroneously gave to her the benefit of section 5 of the Limitation Act on the premise that her detention in jail was a sufficient reason for her absence from the proceedings which in fact could not legally be extended as it was not applicable to an application under Article 164 of the Limitation Act where a party is served ; and as admittedly the application filed by the appellant was beyond time despite the service of notice, the contumacious delay could not be condoned. Similarly, in the case of Mst.
8. Sardar Akhtar, the High Court held that it could not be accepted that she had no knowledge of the decree for over three years in the facts and circumstances of the case. Therefore, she was also non-suited by reason of the bar of limitation. Lastly, the plea of Mst. Bakht Bano qua the fraud was also repelled on the ground that it was not her case that by reason of any fraud she was deprived of the knowledge of the proceedings in the suit against her ; and if it was her case that her personal property was included in the estate of her deceased husband then this question was one of merit which was even pleaded by respondents 4 to 6 in the written statement and this could not provide a ground for interference by the Additional District Judge.
9. Against this order of the High Court, the appellant and Mst. Sardar Akhtar filed separate Civil Petitions for Special Leave to Appeal ; and leave was granted to Mst. Bakht Bano to consider the following two questions :-
(a) Whether her application dated 19th of February, 1969, seeking to set aside the decrees was hit by the bar of Article 164 of the Limitation Act when she was not duly served in accordance with the provisions of Order V, rule 2, C. P. C. ; and
(b) whether she had notice of the proceedings in the suit in the context of the fact that the suit was transferred from one Court to another without being duly informed of the said transfer.
10. It was, however, refused in the case of Mst. Sardar Akhtar.
11. On behalf of the appellant, the learned counsel contended that the failure to supply a copy of the plaint was fatal to the effectiveness of the service ; and for this purpose h,. Relied on Order V, rule 2, C. P. C. And on a case of the Lahore High Court reported as Pesu Mal-Harbhagwan Das v. Bishen Das Mewa Ram (AIR 1927 Lah. 376) and two cases from the Indian jurisdiction reported as M. G.
12. Dua v. Bali Mal Nawal Keshore (AIR 1.959 Pb. 467) and Suresh Chandra Sarkar v. Gosaldas P.I (AIR 1976 Cal. 87). His further grievance was that the service was not effected on the form prescribed, that is, Form 8 of Appendix B of the Civil Procedure Code, Order V, rule 2, reads :- "Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement."
13. Order V relates to the issue and service of summons and prescribes different modes in which it is to be effected. Rule 2 of this Order requires that "such summons shall be accompanied by a copy of the plaint" which, according to the direction of the Court, shall be either for the settlement of issues only or for the final disposal of the suit ; and in case of a suit to be beard by a Court of Small Causes, it shall invariably be for the final disposal of the suit (rule 5). Rule 24 of this Order prescribes that where the defendant is confined in prison, the summons shall be delivered or sent by post or otherwise to the officer incharge of the prison for service on the defendant. Rule 2, as is worded, does show that every summons shall be accompanied by a copy of the plaint but in case of failure as to whether it would effect the service of summons is the moot question which requires consideration.
14. The words "every" and "shall" no doubt cast a duty on the officer of the court to annex a copy of the plaint alongwith the summons, but this rule otherwise does not prescribe any penalty for its non- compliance. However, it is clear that if a copy of the plaint. Is not annexed alongwith the summons, the defendant would not be in a position to comply with the direction as given by the Court under rule 5 read with Order 1X, rule 1 and Order X, rule I of the Civil Procedure Code. Order IX, rule 1, gives discretion to the Court to adjourn the hearing to a future day to be fixed by it and in that context the oral examination of the defendant, or hi pleader under Order X, rule 1, could also be deferred. Therefore, in case the defendant is not supplied with the copy of the plaint, he can, on the first date of hearing, under Order IX, rule 1, seek an adjournment on this ground to enable him to receive a copy of the plaint in which case he would not be liable for the non-compliance of the direction of the Court even it was for the final disposal of the suit. Then, is, therefore, ample laxity in case of disregard of rule 2.
15. Now, as to the rules of construction, applicable to the statutes like the Civil Procedure Code, Mahmood, J., in Xarsingdas v,. Mangal Dubey and others (1) has said ". . . The Courts are not to act. Upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the' present case, therefore, it rests upon the defendants to show the suit in the form in which it has been brought is prohibited by the rules of procedure applicable to the Courts of Justice in India."
16. This observation has been followed by the superior Courts of this country while construing procedural provisions. The prohibition may either be separately expressed or may reflect from the use of the negative words in the provision which render its compliance imperative. Again, such a provision is directory in the absence of the negative words. See R. v. Leicester JJ. (2), R. v. Sneyd (3) and Cole v. Green (4). Elucidating further as to the effect of the affirmative or negative words, N. S. Bindra in his Interpretation of Statutes, 4th Edn.; at page 440, thus states :- "There is a difference between a case in which a Court or an officer of a Court omits to do something which by a statute it is enacted shall be done, and cases in which a Court or an officer of a Court does something which by a statute it is enacted shall not be done. In the one case the omission to do an act which by the statute it is enacted shall be done, may not amount to more than an irregularity in procedure, whilst in the other case, in which the prohibition is enacted, the doing of the prohibited thing by the Court or the official is ultra vires and illegal and if ultra vires or illegal, it must follow that it was done without jurisdiction. Negative words would give a statute an imperative effect."
(1) (1882) 5 All. 172 (2) (1827) 103 E R 627
(3) (1841) 5 J P 579(4) (1843) 134 E R 1145 Viewed in this background, the language of rule 2 is in the affirmative and therefore, its compliance is merely directory and in case of non-complianC it does not amount to more than an irregularity in the procedure.
17. If we were to see the reasoning of the cases relied on by the counsel for the appellant in the light of this discussion, Jai Lal, J., in Pesu ~sal--Harbhagwon Das's case has not stated any principle on which the service of summons becomes ineffective in case a copy of the plaint is not supplied.
18. Similarly, R. Bhattacharia, J., in Suresh Chandra Sarkar's case had merely considered that there was no substantial compliance of the law laid down for the service of summons, which rendered the service ineffective, without further going into the question as to how it could affect the validity of the service when otherwise no consequence was provided in case of such failure. The same is the position in M. G. Dua's case where stress was laid on the fact that in the absence of the copy of the plaint, the defendant would not be aware as to what case he had to meet at the trial, but did not further examine as to how it would affect the validity of the service.
19. Assuming for argument sake that by reason of the non-supply of the copy of the plaint, the defendant was prejudiced inasmuch as he could not have been aware as to what allegations he had to meet on the first date of hearing, the defect cannot be regarded as conclusive qua the entire proceedings in the suit, for to rectify this omission there is .a provision in the Civil Procedure Code which permits an adjournment and I see no reason why the Court would not grant it for this purpose. Accordingly, I see no good reason to accept the ratio decidendi of these cases.
20. On the other hand the counsel for the respondent relied on Ramzan and another v. Ilahi Bakhsh and others (PLD 1958 Lab. 455) in which Akhlaque Hussain, J., did not agree with the view of Jai Lal, J., in Pesu Mal-Harbhagwan Das's case and held :- " . . It will be thus seen that neither the provision relating to the passing of an ex parte decree nor that to setting it aside refers to the service on the defendant of a copy of the plaint. The expression 'due service' used in the two rules has reference only to the summons and not to the copy of the plaint. It can only mean service of the summons in accordance with those rules in Order V, namely, rules 9 to 30, which appear under the head `service of summons'. None of those rules refer to the copy of the plaint). The word `summons' either in these two rules or in any other relevant provision of the Code, cannot be read as `summons accompanied by a copy of the plaint.'
21. A perusal of Orders V to IX of the Code of Civil Procedure leaves little room for doubt that a defendant is required to appear in Court in obedience to a `summons' issued by it and that rule 2 of Order V is a distinct provision which requires the service upon a defendant of the copy of the plaint as well. Non-compliances with the provision of rule 2 of Order V has nothing to do with the consequences which flow from non-appearance in spite of service of the summons. Its only consequence can be that if objection is taken by the defendant that he was not served with a copy of the plaint a Court cannot proceed with the case until the defendant has been supplied a copy of the plaint and had sufficient time to prepare his written statement."
22. The above is the correct interpretation of the procedural provisions and I agree with it. '
23. Now coming to the facts of the case, she was twice served with the summons. On the first occasion for the hearing of the case on 9th of November, 1964, and on the second, for 9th of March, 1965. But despite the service she failed to put in an appearance through a counsel and, therefore, as she was duly served, time began to run from the date of the ex parte preliminary decree under Article 164 of the Limitation Act which provide a period of 30 days from the date of the order. If, therefore, the appellant had wanted to set aside the ex parte preliminary decree, she could have filed such an application before the expiry of this period beyond which time it was barred. Surprisingly enough, she filed an application seeking this relief on 19th of February, 1969 ; and in para. 2 of this application she admits due service of summons on her. Such being the case, I fail to see ho the period of limitation could be computed from the date of knowledge.
24. The trial Court proceeded on the basis of her admission as to the due service of summons on her and dismissed the application holding that it was time barred. However, the Additional District Judge erroneously concluded that she was not in a position to contest the suit on account of her incarceration on a capital charge although she was served and, therefore, her non-appearance was justified which provided sufficient cause for setting aside the ex parte decrees without giving effect to the per se bar of limitation. The Additional District Judge seems to have been overwhelmed by the conduct of the parties in depriving each other of their share of the properties which was a pivotal factor in reversing the order of the trial Court. The High Court has, as stated elsewhere in. This judgment, held that Article 164 applied with full force with the result that her application for setting aside the ex parte decrees under Order IX, rule 13, C. P. C., was hopelessly time barred.
25. As to the grievance that the service was not effected on the prescribed form of notice, it was again an irregularity which does not affect the validity of service so long as it was in the manner provided by Order V, rule 24, C. P. C.
26. Adverting now to the grievance about the absence of knowledge of the proceedings caused by the frequent transfers of the suit, this submission has also no substance. The fact of the matter is that after the passing o1 the ex parte preliminary decree on the 13th of January, 1966, the District Judge transferred the proceedings on 4th of March, 1967, from the Court of the Senior Civil Judge, where these were pending, to the Court of Civil Judge ; but before any step could be taken in that Court, the Senior Civil Judge represented to the District Judge that the Civil Judge had no jurisdiction to proceed with the matter and, therefore, the proceedings were re-transferred by the District Judge to the Court of Senior Civil Judge on 13th of March, 1967. It will thus be seen that there was no transfer of the proceedings from one Court, to another during the pendency of the suit which could reflect on the absence of knowledge of the proceedings when in point o1 fact the appellant herself did not appear through a counsel and allowed the ex parse preliminary decree to be passed by the same Senior Civil Judge. Further, there was no effective transfer of the proceedings even after the ex parse preliminary decree and nothing can turn on it.
27. Lastly, the learned counsel for the appellant contended that the appellant should have been served as required by Order XXVI, rule 18, before the passing of the preliminary decree so as to have enabled her to participate in the proceedings before the Commissioner. Therefore, the final decree passed in her absence was a nullity. Ordinarily this submission would have had substance in it but in the instant case no material purpose will be serve as the ex parse preliminary decree has not been set aside which in term deprives her of her widow's share and renders some of the properties, which she claimed to belong to her, liable to partition and separate possession a left over by her deceased husband. It is unfortunate that there has been no adjudication of her claim but for this she is alone responsible.
28. For the foregoing reasons, this appeal fails and is hereby dismissed but with no order as to costs.
29. SHAH NAWAZ KHAN, J.-I agree.
30. SHAFI-UR-REHMAN, J.-I agree.