' SADIQ HUSSAIN BHATTI, J.---Appellants are aggrieved by order dated 4th November, 2011, passed by the learned single Judge of this Court on C.M.A. No,10791 of 2011, filed in Suit No,198 of 2010, whereby the said application was dismissed.
2. Brief facts of the case are that in the year 1998 the appellant entered into a contract with respondent No,2 for purchase of an office measuring 652 sq. Ft. Along with parking space measuring 300 sq. Ft. In a commercial plaza, known as 'Nice Trade Orbit', situated at Plot No,44-A & B, Block-6, PECHS, Main Shahrah-e-Faisal, Karachi. After payment of required amounts, allotment letter in respect of office No,114 and parking space of measuring 300 sq. Ft., both on first floor, was issued to the appellant. As per contract the project was to be completed by the year 2000 but despite payment of substantial amount the same was not done in time. The appellant approached the respondents with regard to completion of the project and handing over possession of office and car parking allotted to him, when he was assured by the respondent No,1, verbally as well as in writing for completion of project and handing over of possession at an early date. However, upon seeing no progress in construction work appellant again approached the defendants, who demanded the amount in excess to the agreed payment schedule and threatened that in case of failure of payment of the demanded amount, suit property shall be cancelled. Due to failure of respondents to honour their contractual obligations the appellant was constrained to file the above referred suit. Summons were issued to the defendants in Suit and defendants Nos.1 to 4 were served. C.M.A. No,9505 of 2011 under Order XXIX, Rule 2, C.P.C. Was filed by the appellant, seeking that service on respondents Nos.2 and 3 be 'held good' and in the alternate the said defendants may be served through defendant No,6. The matter was placed before the Court and the Additional Registrar (O.S.) was directed to scrutinize the said application and submit compliance report. In his report learned Additional Registrar (O.S.) submitted that above defendants have already been served vide diary dated 22-4-2010 of the board of Additional Registrar and were required to submit their written statements within four weeks but they failed to do so, as such, the matter was placed before the learned single Judge in Court on 3-10-2011 for proceeding ex parte against the said defendants. The report further reflected that despite the fact that the defendants Nos.2 and 3 already stood served, the learned Counsel for Appellant sLbrnitted 'application under Order XXIX, Rule 2, C.P.C. Before the Additional Registrar seeking that the matter may be placed in Court for orders on 3-10-2011. Additional Registrar (0.S.) held that the application(s) under Order'
XXIX, Rule 2, C.P.C. Filed by the appellant are misconceived and liable to be dismissed as the defendants Nos.2 and 3 already stood served, and the matter may be fixed in Court for ex parte orders. On 4-10-2011 the matter was fixed in Court on the basis of report submitted by learned Additional Registrar (O.S.), when the application filed by the appellant under section XXIX, Rule 2, C.P.C. Was dismissed by the Court.
3. After dismissal of the above application it was learnt that the matter has been fixed in Court for ex parte orders against defendants Nos.2 and 3, however, on a query it was found that the matter was not fixed in Court as the Additional Registrar (O.S.) decided to again send notices to the defendants Nos.2 and 3 and the summons dated 20-10-2011 were handed over to the counsel for the appellant for service through T.C.S.
4. In view of hereinabove fact and after dismissal of above C.M.A. No,9505 of 2011, the appellant filed another C.M.A. No,10791 of 2011 in the above suit, challenging the decision of learned Additional Registrar (O.S.) for sending the summons to defendants Nos. 2 and 3 again which, per learned Counsel was not only contradictory to the learned Additional Registrar's earlier order to the effect that the defendants Nos.2 and 3 have been served and service is held good but also highly prejudicial to the appellant's interests.
5. On 4-11-2011 the matter was placed before the learned single Judge for orders on C.M.A. No,10791 of 2011 and for perusal of report submitted by the learned Additional Registrar (O.S.), when the learned single Judge passed the impugned order, which reads as under:- "Learned counsel in support of his present application states that service has been ordered again on defendants Nos.2 and 3. His grievance appears to be that earlier service on these defendants was held good but that it is now being ordered that they be served again. Learned counsel states that ,defendant No,6, who is a director of the defendant No,2, has already been served and he requests that summons for defendants Nos.2 and 3 should be served on defendant No,6 and Mr. Mehmood Ali, the attorney of the defendants Nos.6, 7 and 8.
' I have considered what learned counsel has said, and with respect, I completely disagree with the proposition advanced by him. It is absolutely fundamental to the law that a defendant be served and, except in the case of summary chapter suits and suchlike proceeds, is entitled as of right to come and defend himself. It is therefore, essential that the defendant be served properly and adequately. If the Court or the Additional Registrar, who, for this purpose, is in fact exercising the jurisdiction of the Court, is for any reason satisfied that service should be effected again then, unless extraordinary circumstances are shown, the plaintiff cannot be regarded as having any grievance in this regard.
' Insofar as the defendant No,6 being the director of the defendant No,2 is concerned, it is sufficient to note that in any case, the defendant No,3 is an individual so that the service or otherwise on defendant No,6 can have nothing to do with this defendant. Secondly, the law, requires a company, i.e, the defendant No,2, to be served in a particular manner and it not the choice of the plaintiff that a particular Director of the company should be selected for purposes of service. Insofar as the attorney, Mr. Mehmood Ali, is concerned he is not a party at all to this suit and he is apparently the attorney only of the defendants Nos.,6, 7 and 8. In these circumstances, I fail absolutely to understand how service on defendants Nos.2 and 3 can or should be effected through the attorney.
As such I find no merit to this C.M.A., which is dismissed."
6. The above order has been challenged by the appellants through present High Court Appeal.
7. Learned counsel for the appellant, argued that the impugned order is based on misconceived facts and contrary to the material available on record, whereas relevant provisions regarding procedure provided for service upon a company have been ignored. He further argued that learned single Judge failed to appreciate the factual aspects of the matter and the order passed by the Additional Registrar (O.S.) whereby service upon defendants Nos.2 and 3 was held good and matter was fixed for proceeding ex parte. Per learned counsel, defendants Nos.2 and 3, despite having been served, are deliberately avoiding to appear in Court whereas two of the Directors of defendant No,2 have been served and are before the Court, thus the service upon Company through them has been duly effected twice, through Bailiff as well as by these Directors. It is contended by the learned counsel that there is no need for issuance of any further summons to the said defendants Nos.2 and 3. Per learned counsel no prejudice would have been caused if summons were sent through defendant No,6 or the attorney of defendants Nos.6, 7 and 8 as they both are not only husband and wife but are also Directors of defendant No,2. He further argued that in the absence of any valid reason for repeating service upon defendants Nos.2 and 3, the decision of the Additional Registrar (0.S.) is arbitrary and untenable in law. Whereas, the order passed by the learned single Judge in this regard is based on misreading and non-reading of the material facts and the evidence, available on record. Per learned counsel, service upon a company through any of the directors or even on the given registered office of the company is a valid service in law. In support of his contentions, the appellant relied on the case of MANSOOR TEXTILE MILLS LIMITED, SHORKOT v. JAMAIL AKHTAR NASEEB, TEXTILE CONSULTANT FAISALABAD [2001 CLC 1065]. He also referred Order XXIX, Rules 2 and 3, C.P.C. And Rule 782 of the Sindh Chief Court Rules (0.S.).
8. Conversely, learned counsel for respondents Nos.1 and 6 has controverted the submissions made by the appellant, and has supported the impugned order passed by the learned single Judge. It has been argued that C.M.A. No,9505 of 2011 was totally misconceived and legally incompetent as the summons were not served on defendant No,2 in terms of Order XXIX, Rule 2(a), C.P.C. While defendant No,3, being a permanent resident of Lahore could not be served at Karachi.
It is further submitted that from the report of the Bailiff it is evident that defendants No,3 was not legally served of the summons of the subject suit and, as such, the diary dated 22-4-2010 was rightly discarded by the Additional Registrar (O.S.) and defendants Nos.2 and 3 were rightly ordered to be served according to the procedure as provided under Sindh Chief Court Rules (0.S.) and, as such, there was no justification for appellant to file C.M.A. NQ.10791 of 2011, which has rightly been dismissed. He further argued that respondent No,4 is a sleeping Director of respondent No,2, who has never acted and/or participated in the affairs of respondent No,2, hence respondent No,2 cannot be legally served through respondent No,4 and prays that instant appeal may be dismissed.
9. We have heard both the learned counsel for the appellant and the respondents, and have also perused the impugned order and the case-law as well as provisions of Order XXIX, Rules 2 and 3, C.P.C. And Rule 782 of the Sindh Chief Court Rules (0.S.).
10. The appellant filed Suit No,198 of 2010 for declaration, cancellation of documents, permanent injunction, specific performance, possession and execution of documents of title and during pendency of the Suit and proceedings also filed a C.M.A. No,9505 of 2011 requesting that service upon defendants Nos.2 and 3 may be held good or alternatively they may be served through defendant No,6, one of the Directors of the Company i.e, defendant No,2. Report was called from Additional Registrar (O.S.), who reported that as per diary dated 22-4-2010 of the Board of Additional Registrar, defendants Nos.2 and 3 have been served, hence the C.M.A. No,9505 of 2011 is misconceived and liable to be dismissed, which was dismissed, accordingly by the Court. After dismissal of the above C.M.A., per learned counsel for the appellant, upon inquiry from office it revealed that Additional Registrar (0.S.) decided to again send the summons to defendants Nos.2 and 3, against such decision of learned Additional Registrar (O.S.) the appellant filed C.M.A. No,10791 of 2001, wherein it was prayed that the earlier decision of the Additional Registrar (O.S.) regarding service upon defendants Nos.2 and 3 could not be recalled without any valid reasons and the service upon such defendants may be held 'good service'. Such application was also dismissed by the learned single judge vide impugned order, hence this appeal.
11. To determine this aspect, it would be advantageous to examine the provisions of Order XXIX, Rule 2 of the Code of Civil Procedure, which read as under:- "Order XXIX, Rule 2.---Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served --
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.
12. It would also be advantageous to examine the provision of Rule 782 of the Sindh Chief Court Rules (0.S.), which reads as under:- "Rule 782. Service on company. Every miscellaneous application, unless presented by the Company, and every notice, summons: order or document required to be served on a company shall be served at the registered office of the company and if there is no registered office, then at the principal or last known place of business of the company, by leaving a copy thereof with any officer or servant of the company, and in case no such person can be found there, then in such manner as the Registrar (O.S.) may direct. If the company is being wound up at the date of admission of a miscellaneous application, notice,summons, order or document, service shall be effected upon the liquidator. If the registered office or place of business referred to in this rule is situated beyond the original civil jurisdiction of the Court, service of the application, notice, , order or document, may with the leave of the summons Registrar (O.S.), be effected by sending a copy thereof by prepaid registered post addressed to the company at such office or place of business."
13. A bare perusal of the provisions of Order XXIX, Rule 2, C.P.C. As well as Rule 782 of the Sindh Chief Court Rules would reveal that in the case of corporation, the summons could have been served on any of the Directors of such Corporation as well as on the registered office of the company, whereas, in the instant case, learned counsel for Respondents Nos.1 and 6 after having been served are in attendance and have also filed their counter affidavit(s). It has also come on record that defendants Nos.2 and 3 were earlier served and service was held good and the matter was fixed for ex parte orders by the Additional Registrar (O.S.). No reason or justification has been shown for recalling such order by the Additional Registrar (O.S.).
14. Perusal of provisions of section 48 of the Companies Ordinance, 1984, regarding service of documents on a company reveals that, "a document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at the registered office of the company."
15. In the case of Mansoor textile Mills Limited (supra) it has been held that "in the case of corporation, the summons could have been served on any of the Directors of such Corporation and in the instant case, the learned counsel for the Managing Director of the added respondent being in attendance, the offering of copy of the amended plaint to the learned counsel for the respondent could be deemed to be enough service on the added respondent."
16. We have also perused the note dated 27-9-2011 of the Additional Registrar (O.S.), which reveals that defendants Nos.2, 3 and 5 were served and they were required to file their written statement(s) but they failed to do so since 22-4-2010 and neither they appeared nor they were represented by anyone. We are unable to understand as to why, once the service upon defendants Nos. 2, 3 and 5 was effected and held good by the Additional Registrar (O.S.) and the matter was fixed for filing written statement(s), notices were directed to be repeated against defendants Nos.2, 3 and 5, without assigning any reason or showing sufficient cause in this regard.
17. After careful consideration of the question involved in this matter and on perusal of the relevant provisions of law and the case relied upon by the learned counsel, we are of the view that the respondent No,2 i.e, the company stood served in fact and law and there is no need of repeating service upon the said respondent. We may observe that since respondent No,1, being the manager of the company and respondent No,6, being director of the respondent No,2 company, are already being represented by a counsel, no prejudice in this regard is otherwise likely to be caused to respondent No,2, who may file written statement within two weeks from the date of this order. As regards service upon respondent No,3 is concerned, we would direct the Additional Registrar (O.S.) to minutely examine the validity or otherwise of service of Court notices upon respondent No,3 and if sufficient reasons and valid grounds emerge from the record to repeat notice upon such respondent, then the complete report may be placed before learned single Judge, who may pass appropriate orders in this regard.
18. Instant appeal was allowed vide our short order dated 4-12-2012 to the extent that service upon respondents No,2 is held to be good, and these are reasons for such short order. #EndJudgment