' AZIZ-UR-REHMAN, J.---By means of this application under Order IX Rule 13 read with Sections 12[2] and 151, C.P.C. Bearing C.M.A. No,7006/2009, the defendant [means Judgment-debtor] has prayed for setting aside of the 'Judgment and Decree' dated 24-10-2007 passed 'ex parte' in Suit No,459 of 1997 [Rice Export Corporation of Pakistan v. Messrs Naveed Hussain Shah], mainly on the ground that the defendant at no stage of proceedings had any knowledge about the institution of the suit and/or passing of such judgment and decree in favour of the plaintiff [means Decree-holder], as the defendant besides was never served with the summons of the above suit', had no any knowledge about the institution of the suit and/or 'ex parte decree' passed therein on 15-12-2007.
2. Brief facts leading to the filing of above application [C.M.A. No,7006/2009] are as follows:--
3. That the plaintiff corporation invited tender for handling of rice crop 1991-92, at their godown at Bin Qasim, Landhi and TPX Godown. In response, the tender submitted by the defendant partnership firm as handling agents at Karachi for handling of rice at Landhi godown was accepted by the plaintiff.
4. Consequently, between the plaintiff and defendant a contract dated 4th January, 1990 bearing No,RECP-5/M&M 1991-92, was signed and executed. The defendant was thus appointed as handling agent for handling the rice crop 1991-92, at Landi rice godown on the terms and conditions of the said contract.
5. In pursuance thereto the defendant was entrusted with a large quantity of rice of various qualities. Per clause 4(a) of the tender documents, from the date of acceptance, of tender, the period of contract was two years. But in the present case as alleged, on account of non-export of a considerable quantities of rice crop 1991-92, the plaintiff management however, extended the period of contract up-to 30-09-1995, though the services rendered and work performed, per plaintiffs assertions, throughout the contracted period was found un-satisfactory.
6. Nevertheless, the plaintiff corporation appointed an independent surveyor who in presence of parties, carried out 'physical verification' of the stocks and thereafter also submitted his report dated 25-9-1995.
7. Upon surfacing the shortage of 11,766.5158 M. Tons of rice, the defendant was called upon vide plaintiffs letter dated 23-11-1995 to explain the reasons for shortage of 11766.5158 M. Tons rice.
8. The defendant, upon failure to give reply or show reasons for the shortage so occurred, was consequently called upon to deposit Rs,75,257,276.51 as being cost of the quantities [i,e, 11,766.5158 M. Tons] having found short. Per plaintiff stand, the defendant besides submitting final account also admitted the shortage through his letter dated 26-6-1996.
9. The defendant, as being handling agent under the terms and conditions, is liable to render accounts of stocks entrusted to him under the terms and conditions of contract. Per plaintiffs version, the defendant is liable to pay the plaintiff a sum of Rs,75,257,276.51 as being the value of 11766.5158 M. Tons rice i,e, Was found shortage and remained un-counted for.
10. Resultantly, the plaintiff filed Suit No,459/1997 [Rice Export Corporation of Pakistan vs. Naveed Hussain Shah] for Accounts and Recovery of Rs,75,257,276.51 and Cost of Storage of Bardana with the following prayer:-
(1) Decree for a sum of Rs,7,52,57,276. 51 against the defendant with interest and for mark up at 14% per annum from the date of suit till recovery plus cost of the Bardana found short at the time of final account.
(2) In the alternatively the plaintiffs prays for a judgment and decree against the defendant to render true and faithfully account of the stocks of rice and bardana entrusted to defendants as mentioned in the plaint and to pass final decree for the amount ascertained on rendition of account. [Underlining is mine].
(3) Cost of the suit.
(4) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case.
11. The number of suit allotted and appears on court fee/stamp paper is Suit No,459 of 1996 [Rice Export Corporation of Pakistan v. M/s. Naveed Hussain Shah]. The said Suit No, 459 of 1996 nonetheless, has been changed to Suit No,459 of 1997, without any explanation much-less, available on record. It is worth to note, suit was filed in court, on 12-12-1996.
12. Per first 'diary sheet' of Additional Registrar [U.S.] dated 29-5-1997, summons to the defendant by bailiff and registered post A/D were not issued as the 'process fee' and 'registration charges' not deposited by the plaintiff. On the plaintiffs application under section 148, C.P.C., nonetheless, time was extended for issuing of summons for 7-10-1997. Per diary sheet of Additional Registrar [U.S.], the summons issued to the defendant through 'bailiff, 'registered post' A/D, and cover-in-hand' for 7- 10-1997, but the same were returned unserved. Per bailiff report dated 6-10-1997, the defendant had shifted from the address given. The summons by registered post A/D, cover-in-hand could not be issued as no one turned up to collect the process from the office. Again, from the 'diary sheet' of Additional Registrar [O.S.] dated 9-12-1997, it transpires that 'fresh summons' issued to the defendant had also returned unserved. Per bailiffs report dated 9-12-1997 the premises was found locked.
13. Fresh summonses thereafter were issued 'for 19-2-1998, however, again could not be issued.
Summons thereafter issued for 23-11-1998 but the same returned un-served as the 'premises' was found locked. Summons for 20-8-1998 could not be issued as 'process fee' was not paid. However, 2 weeks' time was allowed for issuance of summons for 15-10-1998. From the diary sheet of Additional Registrar [O.S.] dated 15-10-1998, it appears, that 'fresh summons' issued to the defendant again returned un-served as the office, was found locked. Per diary sheet of Additional Registrar [0.S.] dated 8-12-1998 and 9-2-1999 summons could not be issued as 'process fee' was not paid. From the diary sheet of Additional Registrar [O.S.] dated 13-4-1999 it appears, that summons issued to the defendant returned un-served as the office was found locked. Per diary sheet of Additional Registrar [O.S.] dated 27-5-1999 and 24-8-1999 summonses were not issued to the defendant as 'process fee' was not paid.
14. In view of the above and due to non-payment of 'process fee' time and again the plaint was consequently struck off on 24-8-1999, under Rule 128 of Sindh Chief Court Rules [Original Side]. The plaintiff thereafter, on 11-2-2004, [more than 4 years], nevertheless, filed an application under Rule 129, SCCR [CMA No,4037 of 2005] with a prayer that order dated 24-8-1999 be set aside and plaint be restored in its 'original position' with condonation of delay, if any. The aforesaid application bearing C.M.A. No,4037/2005 was also supported by the affidavit of one Muhammad Atiq son of late Muhammad Laiq Khan.
15. It is worth to note that aforesaid application bearing C.M.A. No,4037 of 2005 was granted by the Addl. Registrar (0.S.) however, without issuing any notice to the defendant. The plaint was thus restored to its 'original position' after about 5 years [i,e, on 22-9-20051. Diary sheet of Additional Registrar [0.S.1 dated 22-9-Z005, shows that the summons issued to the defendant returned un- served with the endorsement that the office of defendant is not in existence. The plaintiff, however was directed to produce the 'confirmation report'. Summons in the meantime, was repeated through bailiff for 11-11-2005.
16. From the diary sheet of Additional Registrar [O.S.] of 10th November, 2005, it reveals that the summons issued for 11-11-2005 returned un-served as the office was 'found locked'. Under the said order, it was noted down that 'the plaintiff has not yet produced 'confirmation report of TCS'.
Nonetheless, summonses were again repeated through 'bailiff, 'registered A/D' and 'courier' for 10-1- 2006 despite the fact that office was, time and again, found locked/closed.
17. From diary sheet of Additional Registrar [O.S.] dated 27-1-2006 it appears, that the summons issued to the defendant returned un-served as the office was found 'locked'. Under circumstances, the plaintiff was directed to supply 'fresh address' of the defendant in a week. In the meantime summonses were repeated for 21-3-2006. Per diary sheet of Additional Registrar [U.S.] dated 21-3- 2006, summons could not be issued to the defendant as cost was again not paid. Further under the same order the plaintiff's application under "Order V, Rule 20, C.P.C. For serving the defendant, by way of publication, was granted and plaintiff was directed that publication be made in the Daily 'JANG' Urdu, Karachi for 4-5-2006.
18. From the diary sheet of Additional Registrar [O.S.] dated 4-5-2006 it appears, that the publication was not issued as cost was not paid. However, for paying cost 1 week time was granted for issuance of publication for 2-6-2006. Per diary sheet of 2-6-2006 of Additional Registrar [0.S.], the summonses inter alia through publication, were published in daily 'JANG' Urdu, Karachi of 16-5- 2006. Per Addl. Registrar [O.S.] diary of 2nd June, 2006, service upon defendant was held 'good'. On 21-8-2006 the defendant was declared 'ex parte'.
19. The 'un-signed order' dated 21-8-2006 and 'late diary' 21-8-2006 read as follows:-- "21-8-2006 Service of C.M.A. No,4037/2005 is carried out through publication in 'Daily Jang' dated 16-5-2006.
To come up for hearing of the above application as well as application for limitation. Adjourned to 24-8-2006"
"Late Diary 21-8-2006 Before the order could be signed, Mr. Ashfaq Hussain, appeared in the chamber and after seeking excuse has submitted that actually CMA No,4037/05 has already been allowed by Addl. Registrar vide his order dated 20-6-2005 and after restoration of suit service was ordered for defendant, which was effected upon it in terms of Addl. Registrar's diary dated 2-6-2006. The actual position disclosed by learned counsel is being verified by the diaries of suit. In the circumstances, the case to proceed ex parte against the defendants. Adjourned to 24-8-2008."
[Underlining is mine].
20. Thereafter, per order dated 29-11-2006 the plaintiffs request for filing of 'affidavit-in-ex parte proof was granted and plaintiff was directed to file 'affidavit-in-ex-parte proof' within a period of 2 weeks. The plaintiff in compliance with order dated 9-11-2006, filed the 'affidavit-in-ex parte proof' of one Muhammad Atiq Khan son of late Muhammad Liaq Khan on 13-12-2006 which is available on record.
21. On 7-3-2007, plaintiff counsel sought time for filing application for amendment in the title of plaint. Such application under section 151, C.P.C. [CMA No,2092/2007] was filed on 7-3-2007. The prayer sought in the aforesaid application reads as follows:- "It is prayed that on the consideration of the facts disclosed in the accompanying affidavit, this Honourable Court may be pleased to allow the plaintiff to file amended title in the above captioned matter as by the order dated 19-1-2001, passed by this Honourable Court in J.M. Petition No,36/1999, the plaintiff Rice Export Corporation of Pakistan stood dissolved being amalgamated in Trading Corporation of Pakistan and therefore, now trading corporation of Pakistan shall replace Rice Export Corporation of Pakistan" [Underlining is mine].
22. On 30-5-2007, when C.M.A. No,2092 of 2007 came up before the court, notice was ordered on the said application. From record, it reveals, that notice, indeed, was issued to the defendant for 29-8-2007. However, per bailiff report of 22-6-2007 notice remained un-served. Per bailiffs report the office is closed for last 10 years. On 29-8-2007, when the case came up before the Court, the following order on C.M.A. No,2092 of 2007 [application for substitution of Rice Export Corporation of Pakistan (Pvt.) Ltd., by Trading Corporation of Pakistan (Pvt.) Ltd., as plaintiff in Suit No,459 of 1997] was passed:- "It seems that defendant has been served, but it is not contesting the suit nor it has appeared to contest this application. The application of the plaintiff has merely sought substitution of the name of Trading Corporation of Pakistan in place of the name of Rice Export Corporation of Pakistan. The amendment in the title of the plaint is formal. The application is allowed. Let the amended title of the plaint be filed within two days. "
23. Manifestly the above application was also granted without service of notice on the defendant in accordance with order of 30-5-2007 and despite the fact that the office of defendant was found closed for the last 10 years.
24. Thereafter on 24-10-2010, the suit was decreed by awarding the claim of Rs,75,257,276.51 plus markup @14% per annum. For and regarding justification of 'ex-parte decree', para 6 of the judgment dated 24-10-2007, being relevant is reproduced as hereinbelow:- "6. On account of the failure of the defendant to come forward and contest the proceedings, this Court ordered that the suit to proceed ex-parte against the defendant and directed the plaintiff corporation to file affidavit in ex-parte proof The claim of the plaintiff corporation has gone unchallenged. Therefore there was no other alternative left but to accept plaintiff's version and decree this suit in the sum of Rs,7,52,57,276.51 as claimed alongwith mark up at the rate of 14% per annum recoverable from the defendant from the date of the contract i,e, 24-11-1991 till the recovery of the entire decretal amount".... [Underlining is mine].
25. Most of the remaining part of the judgment pertains to the attitude and role played by the plaintiff vis-a-vis shortage of 11,766.5158 M. Tons of rice. Upon passing of the judgment and decree dated 24-10-2007, the plaintiff assailed the same in High Court Appeal No,07/2003 [Trading Corporation of Pakistan v. Messrs Naveed Hussain Shah]. On 7-2-2008, when the said High Court Appeal came-up before the Hon'ble Divisional Bench of this Court by consent the same was disposed of.
26. Through the instant application [C.M.A. No,7006 of 2009] filed on 17-6-2009, the defendant is seeking setting aside of the judgment and decree, mainly on the ground that the institution of suit and/or passing of judgment and decree was/were not in knowledge of the defendant and the defendant came to know when notice regarding Execution Application No,41/2008 [Trading Corporation of Pakistan v. Naveed Hussain Shah], was published in daily 'JANG' Urdu, Karachi, on 2- 6-2009. The defendant, thereafter made inquiries and ultimately found that the Suit No,459/1997 [now Trading Corporation of Pakistan (Pvt.) Ltd. v. Messrs Naveed Hussain Shah] had already been decreed on the basis of publication of summons in newspaper sometime in May, 2006. Per averments, the defendant remained abroad from January, 2006 to the end of April, 2006. Further the plaintiff avoided to file the 'fresh address' of defendant in compliance with order dated 27-1- 2004 passed by Addl. Registrar (O.S.) though the 'fresh address' was not only available but was also known to the plaintiff i,e, in Suit No,196 of 1996 pending adjudication before the High Court.
27. Per defendant, the plaintiffs conduct and its manipulations are manifested by the fact, that the plaint in the above suit was 'struck off' on 24-8-1999 under Rule 128 SCCR [O.S.], but the plaintiff did not file any application for recalling of the aforesaid order passed by the Addl. Registrar (O.S.) until 11-2-2004. As such the plaintiff acquiesced in the dismissal of the suit. The revival of the suit after more than 4-1/2 years by the learned Additional Registrar (O.S.) and that too without issuing any notice to the defendant, indeed, was not justified or otherwise, maintainable. The application [C.M.A. No,4037 of 2005] so filed, was evidently beyond reasonable time limit. The judgment and decree thus passed by the Court, per learned counsel, besides mis-conceived was obtained fraudulently by suppressing the real and true facts.
28. In rebuttal of the application [C.M.A. No,7006 of 2009] for setting aside of the judgment and decree dated 24-10-2007, the plaintiff through filing of a 'counter affidavit' denied the assertions.
Per plaintiffs stand, summons/notices, no doubt, were repeatedly sent on the address available on record but the defendant failed and/or avoided the service. As a last resort, the defendant was served through publication in daily 'JANG' Urdu, Karachi of 16-5-2006. Per plaintiffs version, notice of Execution Application No, No,41/2008 [Trading Corporation of Pakistan v. Naveed Hussain Shah], published in daily 'JANG' on 2-6-2009 was read by the defendant but surprisingly he did not read the publication of summons in daily JANG of 16 May, 2006 regarding Suit No,459 of 1997 [now Trading Corporation of Pakistan (Pvt.) Ltd., v. Messrs Naveed Hussain Shah).
29. On 5-3-2014, when above matter came up before me I heard Mr. H. A. Rehmani, learned counsel for the defendant and Syed Ashfaq Hussain Rizvi, learned counsel for the plaintiff and with their valuable assistance also gone through the record available before me.
30. Mr. Ashfaq Hussain, learned counsel for the plaintiff at the very outset, raised a preliminary objection to the effect that the judgment and decree passed by the learned Single Judge has now been confirmed, no doubt, with some modifications by the Division Bench of this court vide judgment of 7-2-2008 passed in H.C.A. No,07 of 2008 [Trading Corporation of Pakistan v. Naveed Hussain Shah], as such the Single Bench of this court, now cannot set aside the judgment and decree of 24-7-2007 much-less as prayed for by the defendant through the instant application [C.M.A. No,7006 of 2009].
31. In contra, Mr. H. A. Rehmani, learned counsel for plaintiff while repelling the contention of the learned counsel for the plaintiff, contended in vehemence that order passed on 7-2-2008 by the learned Division Bench of this court in HCA No,07 of 2008 [Trading Corporation of Pakistan v.
Naveed Hussain Shah] does nothing with the merits of the case. No doubt, this court has jurisdiction to entertain the application under Order IX Rule 13, C.P.C. [C.M.A. No,7006 of 2009] and also decide the same on its own merits.
32. For proper appreciation of the preliminary objection so raised it would be advantageous to reproduce here-in-below order passed by the learned Division Bench in HCA No,07 of 2008 [Trading Corporation of Pakistan (Pvt.) Ltd., v. Naveed Hussain Shah]. Order dated 7-2-2008 reads as follows:-- "Through this appeal, the appellant has challenged the observations of the learned Judge in judgment passed in Suit No,459/1997. Learned counsel for the appellant submits that without recording evidence the learned single Judge has ordered for initiating appropriate disciplinary and criminal action against the concerned officer of the appellant corporation which could not be done as there was no evidence. Learned D.A.G and A.A.G both are unanimous by stating that in the given circumstances the appellant corporation have no grievance and should not have filed appeal as the concerned officers only could be effected and since the observation of the learned single Judge has been given keeping in view the factual position being reflected from the letters of the appellant itself as the officers were negligent as stock of the rice was not checked for years till 1995. They submit that observation is quite correct.
After hearing learned counsel to some extent, the learned counsel for the appellant agreed that the observations given by the learned single Judge may be conditioned that some inquiry may be initiated to which both the learned State counsel have no objection. In such a situation, it is ordered that prior to acting on the directions of learned single Judge given in the judgment dated 24-10- 2007 in Suit No,459/1997, a preliminary inquiry at departmental level be conducted keeping in view the factual position as well as the observations of the learned single Judge and thereafter action as proposed in the judgment be initiated so that it should be warning and deterrent factors for others in similar circumstances.
' With the above observations, this appeal is disposed of "
33. Bare perusal of the above, would show that the High Court Appeal No,7 of 2008 [Trading .Corporation of Pakistan (Pvt.) Ltd., v. Messrs Naveed Hussain Shah] was only in respect of the observations made by the learned Single Judge against the conduct, deaf slumber and lethargy prevailed over the management of the plaintiff corporation regarding shortages of 11,766.5158 M.Tons of rice and did nothing as far as 'ex parte decree' against defendant was concerned. In view of this position, I hold that notwithstanding order passed on 7-2-2008 by the learned Division Bench of this court in H.C.A. No,7 of 2008, this court, of course, has jurisdiction to entertain the application [C.M.A. No,7006 of 2009] and also decide the same on its own merits. The observations made by the learned Single Judge and confirmed/subjected to condition per order dated 7-2-2008 passed by the Hon'ble Division Bench of this court shall, however, remain intact and binding.
34. In contra and pro the parties have also filed 'counter affidavit' and 'affidavit-in-rejoinder' by exchanging copies thereof. In 'affidavit-inrejoinder' not only contents of 'the 'counter affidavit' have been denied forcefully but the contents of the application under Order IX Rule 13 and its supporting affidavit have also been reiterated.
35. While, arguing the case on merits, Mr. H. A. Rehmani, learned counsel for the defendant [Judgment-debtor] vehemently argued that neither the defendant was ever served with summons nor with any notice up-till 2-6-2009 i,e, when a public notice of Execution No,41 of 2008 [Trading Corporation of Pakistan (Pvt.) Ltd., v. Naveed Hussain Shah] was published in daily JANG', Urdu, Karachi. The defendant, at no stage had any knowledge regarding institution of Suit No,459 of 1997 [now Trading Corporation of Pakistan (Pvt.) Ltd., v. Messrs Naveed Hussain Shah] and/or 'ex parte decree' passed on 24-10-2007. Per Mr. H. A. Rehmani, despite having knowledge through the bailiff reports about locking/closure of the defendant's office the plaintiff did not care rather avoided the providing of the 'fresh address' of the defendant. Per learned counsel though it was available with the plaintiff. In this regard reference was made to Suit No,196 of 1996 pending adjudication before this court. Not only this, per learned counsel, on several occasions summons could not be issued as cost/process fee was not paid by the plaintiff.
36. Mr. H. A. Rehmani, argued in vehemence, that plaint 'struck off' on 24-8-1999 under Rule 128 of SCCR [O.S.] should not have been recalled/set aside much-less after about 5 years by Addl.
Registrar [0.S.] on the application under Rule 129 of SCCR [O.S.] filed on 11-2-2004 [i,e, more than 4- 1/2 years]. Moreover, it was granted without any notice. Such restoration of the plaint to its 'original position' besides evidently beyond reasonable time is not justified under the law of natural justice.
37. Per Mr. H.A Rehmani, learned counsel for defendant, the decree passed in suit 459 of 1997 [now Trading Corporation of Pakistan (Pvt.) Ltd., v. Messrs Naveed Hussain Shah] is liable to be set aside in view of the glaring illegalities committed and evident from the record.. The defendant, under circumstances, be allowed to contest the suit on merits. The ex parte judgment and decree under which the defendant was burdened with heavy and frivolous amount, of course, is liable to be set aside. Per learned counsel, it is in consonance with the dictate of justice to allow the application [C.M.A. No,7006 of 2009]. Manipulations of the plaintiff otherwise, will become triumphant and the defendant shall financially be ruined on the basis of an 'ex parte decree' which, no doubt, is a nullity in the eye of law.
38. In support of his contention Mr. H. A. Rehmani, learned counsel for the defendant has placed reliance on the following case laws:--
(a) 1985 SCMR 1228 [Muhammad Anwar, Advocate v. Shaikh Abdul Haq]
(b) 2011 SCMR 1745 [Messrs China Beijing Corporation v. Ahmad Bakhsh Construction Co., and others]
(c) PLD 1993 Kar. 676 [Mst. Aliya Masood v. Mrs. Mussarat Musaver and others]
39. In rebuttal, Mr. Ashfaq Hussain Rizvi, learned counsel for plaintiff [Decree-holder] argued that the judgment and decree passed on 24-10-2007 in Suit No,459 of 2007 [now Trading Corporation of Pakistan (Pvt.) Ltd., v. Messrs Naveed Hussain Shah] are valid, proper and lawful. The service of summons issued to the defendant by all modes including publication was held 'good' by the learned Addl. Registrar [O.S.] on 2-6-2006. Per learned counsel, it calls for the wisdom of defendant that he read 'public notice'. Of Execution Application No,41 of 2008 [Trading Corporation of Pakistan (Pvt.) Ltd., v. Naveed Hussain Shah] published in daily 'SANG' of 2nd June, 2009 but did not read publication of summons of Suit No,459 of 1997 published in daily 'JANG' of 16th May, 2006.
40. Per learned counsel, the plaintiff had no 'fresh address' except the one provided to and available on the record of the plaintiff. As such the application under Order V Rule 20 read with Section 41, C.P.C. [Note: no C.M.A. No, asstgned] for substituting service was filed and allowed by Addl. Registrar (O.S.) vide order dated 21-312006.
41. No doubt, plaint against defendant was 'struck off' vide order dated 24-8-1999 but thereafter it was restored upon filing of the application [C.M.A. No,4037 of 2005] under Rule 129 of SCCR [0.S.] by Addl. Registrar [0.S.] on 3-6-2005. The plaint was thus restored to its 'original position' as it was on 24-8-1999. Per learned counsel no time limit is provided for filing the application under Rule 129 of SCCR [O.S.] i,e, for the application of restoration of struck off plaint. As such the restoration of the plaint after about 5 years [i,e, on 3-6-2006], per learned counsel, cannot be questioned on the point of limitation.
42. Mr. Ashfaq Hussain Rizvi, learned counsel for the plaintiff contended in vehemence that the plaintiff as being a statutory corporation, controlled by the Ministry of Federation of Pakistan needs no fraudulent act for obtaining ex parte judgment and decree against the defendant. Per learned counsel, the responsibility of shortfall in the stock of rice is solely rests on the shoulders of defendant as the shortfall was neither natural nor inevitable 'shortfall. Nor such shortfall is allowed under the provisions of the contract entered into between the parties. Neither the amount was miscalculated nor otherwise, the plaintiff has misguided this court regarding any document or procuring of the ex parte decree. According to Mr. Ashfaq Hussain Rizvi, Advocate, the defendant in fact has caused huge 'financial losses' to the plaintiff. Under such scenario, the defendant was found liable to compensate damages and for this reason the plaintiff's suit was decreed as prayed.
43. Lastly, the learned counsel, forcefully argued that the application under Order IX Rule 13, C. P. C .
[C .N1. A . No,7006 of 2009], for setting aside of the judgment and decree passed ex parte in favour of the plaintiff, merits no consideration and deserves to be dismissed with cost.
44. In support of his contention Mr. Ashfaq Hussain Rizvi, learned counsel for the plaintiff has placed reliance on the following case laws:--
(a) 2008 SCMR 236 [Mrs. Anis Haider and others v. S. Amir Haider and others]
(b) PLD 1990 Kar 436 [Messrs National and Grindlays Bank Ltd v. Arshad Ali Khalid Qureshi and another]
(c) 2001 SCMR 1062 [Sarfraz v. Muhammad Aslam Khan and another]
(d) 2001 MLD 436 [Muhammad Tufail and 3 others v. Ghulam Mustafa and 8 others]
45. At this juncture and before proceedings further I would like to refer to Chapter VI of Sindh Chief Court Rules [O.S.]which pertains to the processes. Rules Nos.140 to 146 of Sindh Chief Court Rules [O.S.] are the relevant rules. For convenience and ready reference, the same are reproduced as under:-- "140. Endorsement of identifier on the original process. If serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served.
141. Procedure where defendant refuses to accept service or cannot be found.---Where the person to be served refuses to sign the acknowledgment or cannot be found, the serving officer shall whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb-impression of at least one respectable person of the locality in support of such fact.
142. Return of service.---(1) Every process serving officer shall immediately after completion of any duty connected with any process, record with his own hand upon the original process at the place of execution and in the presence of witnesses (if any)his report specifying the manner of execution or the causes which prevented execution. Such report shall be sworn or affirmed before the Nazir or the Deputy Nazir and shall, together with the process, be filed in the record.
' Process serving officers must invariably note the date, hour and exact place of service of each individual process.
' If the process is addressed to more than one person, the report shall describe the manner of service on each person and also the sequence in which the processes are served on different persons.
143. Service by affixing to outer door.---If a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:
(1) the number of times and the dates and hours at which he went to the house;
(2) the attempts made by him to find the person to be served;
(3) whether he had any, and what, reason to suppose that such person was within the house or in its neighbourhood, or endeavouring to evade service;
(4) whether any adult male member of the family of the person to be served was residing with him,
144. Notice where summons is affixed to outer door.---If a summons to a defendant is affixed to the outer door of a house, the serving officer shall affix therewith a notice that the person so served can, upon application to the court, obtain a copy of the plaint, and shall in his return state that he has done so and shall return the plaint to the court. If the summons has been sent by another court for service and the defendant does not apply for the said copy before the summons is returned to the said court, it shall be returned to that court along with the summons.
145. Inquiry as to sufficiency of service.---The Registrar (0.S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefore in such process by or on behalf of the person or persons against whom it has been issued. Such inquiry may be adjourned, if necessary, from time to time. Affidavits and further affidavits may be received or evidence taken viva voce at such inquiry.
146. Fresh process not to issue until previous one returned.--- Unless otherwise ordered, a second or subsequent process shall not be issued until after the one previously issued has been returned.
46. Also being relevant I would like to reproduce herein Order V Rule 20, C.P.C. As follows:- "20. Substituted service.----[(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of the summons by--
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or
(c) urgent mail service or public courier services; or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or (D any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously].
47. From juxtaposition reading of the above it is crystal clear that substituted service is not the ordinary way of service on a defendant. The Court has to be satisfied that there is reason to believe that the defendant is keeping put of the way for the purpose of avoiding service or that for any other reason the summons could not be served in the ordinary way.
48. From the record it is abundantly clear that prior to 'striking off' the plaint on 24-8-1999, on several occasions the plaintiff failed and/or avoided to pay cost/process fee for issuing of the summons/notices on 29-5-1997, 7-10-1997, 19-2-1997, 20-8-1998, 8-12-1998, 9-12-1998 and 27-5- 1999.
49. Likewise, prior to 'striking off the plaint' on 24-8-1999, per record on several occasions the defendant office was found closed/locked i,e, on 7-10-1997, 23-4-1998, 15-10-1998 and 13-4-1999.
50. Notwithstanding the above the plaintiff remained satisfied and did not take any steps for providing the 'fresh address' though it was available for effecting the service on the defendant.
Under the aforesaid circumstances, it cannot be said that defendant, per bailiff report at any stage, has deliberately avoided the service. Keeping in view the above negligent behavior of plaintiff the learned Addl. Registrar [0.S.] was constrained to 'strike off' the plaint against the defendant on 24- 8-1999.
51. Later-on, more than 4-1/2 years after 'striking off' the plaint, the plaintiff got from the deep slumber and in a very nonchalant manner filed C.M.A. No,4037 of 2005 under Rule 129 of SCCR [0.S.] for recall/setting aside of order dated 24-8-1999. Paras 2, 3 and 5 from the supporting affidavit as being relevant read as below :-- "2. That I say that during merger of the C.E.C. Into T.C.P. Almost all the record of case files was shifted to Korangi Godowns and therefore, it could not come to our knowledge that the plaint was struck off on 24-8-1999. [Underlining is mine] .
3. That, I say that the R.E.C.P. Has been merged into Trading Corporation of Pakistan as per the judgment dated 2-1-2001, passed by this Hon'ble Court in J.M. No,36 of 1999.
5. That 1 say that process fee was not paid in time which was neither intentional nor deliberate but only because of over sightedness.
52. Keeping in view the above, the operative part of order dated 19-1-2001 passed in J.M. No,36 of 1999 under section 284 read with Section 285 to 288 of the Companies Ordinance, 1984 in the matter of (i) Trading . Corporation of Pakistan (Pvt.) Ltd. [TCP] (ii) Rice Export Corporation of Pakistan (Pvt.) Ltd. [RECP] and (iii) Cotton Export Corporation of Pakistan (Pvt.) Ltd. [CEC] is reproduced as follows:-- "21. The notice of the petition was duly advertised and no objections were received from any quarter except as stated above. It is accordingly ordered:
(i) That the assets of petitioners Nos.2 and 3 more particularly described in the scheme of arrangement as set forth in the scheme as subsisting immediately preceding the completion date as defined in the scheme be transferred to and vest in petitioner No,1.
(ii) That all the liabilities and Debts of petitioners Nos.2 and 3 be transferred to petitioner No,1 and accordingly the same shall pursuant to Section 287(2) of the Ordinance be transferred to and become the liabilities debts of petitioner No, 1.
(iii) That all suits, appeals, arbitrations, Governmental investigations and other legal proceedings instituted by or against petitioners Nos.2 and 3 pending immediately before the completion date shall be treated as suits, appeals and legal proceedings by or against the petitioner No,1 and may be continued, prosecuted and enforced by or against the petitioner No,1 accordingly. [Underlining is mine].
(iv) That petitioners Nos.2 and 3, within 30 days of the date of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration and as such certified copies being so delivered the petitioners Nos.2 and 3 shall stand dissolved.
22. The petition is allowed and disposed of in terms of the above. "
53. Evidently, on 19-1-2001 all the liabilities and debts of Rice Export Corporation of Pakistan (Pvt.)
Ltd., [original plaintiff] transferred to and vested in Trading Corporation of Pakistan (Pvt.) Ltd., [TCP- the present plaintiff]. Similarly is the position of legal proceedings filed by and against RECP, [original plaintiff] was treated as legal proceedings by or against TCP [present plaintiff].
54. Surprisingly, order dated 19-1-2001 passed in J.M. No,36 of 1999 was made a ground for filing of the application [C.M.A. No,4037 of 2005] under Rule 129 of SCCR [O.S.] for recalling/setting aside of order passed on 24-8-1999 by the learned Addl. Registrar High Court whereby the plaint was 'struck off' against the defendant.
55. On 30-6-2005 when the aforesaid application [C.M.A. No,4037 of 2005] came-up before Additional Registrar [O.S.], the same was allowed without issuing notice to the defendant. The order passed by Additional Registrar [O.S.] on 30-6-2005 reads as follows:- "Looking to the facts and grounds mentioned in the application, I allow this application and plaint is restored to its original position. Plaintiff is directed to pay process fee within a week Issue summons by all modes except publication for 22-9-2005."
56. Even after restoration of the plaint on 3-6-2005, summons either not issued to the defendant or if, issued remained un-served. For instance, on 22-9-1995 summons issued to the defendant returned unserved as the office of the defendant was not in existence. Plaintiff was nonetheless directed to produce 'confirmation report' and summonses were repeated through bailiff for 11-11- 2005. On 11-11-2005, again summons issued to the defendant returned un-served as the premises were 'found locked'. Besides, in the said order it was observed that plaintiff has not yet produced 'confirmation report of TCS'. The summons in the meantime was ordered to be repeated through bailiff, registered A/D and Courier for 10-1-2006. On 27-1-2006, summonses issued were again returned un-served as the office was found locked. Plaintiff under circumstances was directed to supply 'fresh address' in a week. Summonses were also then repeated for 21-3-2006. On 21-3-2006 it was found that summonses were nat issued to the defendant as cost was not paid since 27-1- 2006. Plaintiff's application under Order V Rule 20, C.P.C. With a prayer for service on the defendant by way of publication was nevertheless granted. Even the application under Order V Rule 20, C.P.C.
Read with Section 41, C.P.C. Was not allotted any C.M.A. Number.
57. On 4-5-2006, it was found that publication was not issued as cost was not paid. The publication was ordered for 2-6-2006. On 2-6-2006 the service was held good by the learned Addl. Registrar [O.S.] on the defendant.
58. In the case in hand, the only ground given by the plaintiff for substituted serviced through publication on the defendant has been given in para 2 of the affidavit of one Mr. Atiq Khan son of Late Muhammad in support of the application under Order V Rule 20, C.P.C. Read with section 41, C.P.C. [Note: no. C.M.A. No, assigned] which reads as follows:-- "2. That I say that the defendant is avoiding service of notice of this suit with mala fide intention and the plaintiff has no new address of the defendant."
59. The only ground on the basis of which substituted service was ordered by the Addl. Registrar [O.S.] is that record shows that several attempts have been made but all in vain. The only ground given by the plaintiff in the supporting affidavit is to the effect that defendant is avoiding 'service of notice ' with mala fide intention and the plaintiff has no new address of the defendant. Nowhere it was stated in the application and/or its supporting affidavit that the defendant is keeping out of the way for the purposes of avoiding service or that for any other reasons the summons could not be served in ordinary way.
60. On this aspect of the matter reliance is placed on the case of Muhammad Anwar Advocate v.
Shaikh Abdul Haq (1985 SCMR 1228) wherein it was held as under:-- "The Rule 20 of Order V of the Civil Procedure Code lays down that when the Court is satisfied that there is reason to believe that "the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way", the Court may order that the substituted service may be effected on him in the manner as the Court thinks fit. In this context, the ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in rules 9 to 17 of Order V of the Code.
Under these provisions the service could be effected on the defendant personally, by registered post, through his authorized agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in rule 17 that where the serving officer, after using all due and reasonable, diligence, cannot find the defendant, and there is no person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is clearly borne out from the record that no resort to this ordinary way of service of the summons on the defendant, his agent (if any) or the male member of his family was at all made in this case. In these circumstances, the learned Senior Civil Judge on the 4th of February, 1974 was not justified in forming the opinion that no service on the defendant could be effected in the ordinary way. In his order dated 9-4-1978, the learned Senior Civil Judge while setting aside the ex parte decree though on some what different consideration, was of the opinion that there was no reason to conclude that the "summons could not be served on the defendant in the ordinary way" and, therefore, the substituted service effected on him was not justified in the circumstances of the case ....There is nothing on the record to show that the defendant had any knowledge of the next date of hearing when the proceedings were actually ordered ex parte against him. In this view of the matter, no resort could be made to the said proviso for the date when the ex parte proceedings were actually taken against the defendant. As discussed above it cannot be held that the appellant had been "duly served" with the summons in the suit and his application for setting aside the decree filed on 27th of April, 1974 was, therefore, not time-barred. " [Underlining is mine].
61. Likewise in the case of Messrs National and Grindlays Bank Ltd. v. Arshad All Khalid Qureshi and another (PLD 1990 Karachi 436) it was observed as follows:-- "7. However, this does not finally dispose of the case as the next objection of Mr. S.A. Sarwana is that the present application under Order IX, Rule 13, C.P.C.' is not maintainable in view of the fact that the judgment has been passed in the case on merits. The expression "ex parte" although has not been defined anywhere in the Civil Procedure Code but it is a Latin expression and it means from one B party or side". According to Wharton's Law Lexicon (14th Edn.), it means "a proceeding by one party in the absence of the other". In Aiyar's Law Lexicon (1940 Edn.), it has been defined as "of the one part; from one party (Tomlin's Law Dictionary)". The order passed by the learned Single Judge of this Court dated 8-11-1983 shows that evidence was recorded on behalf of the plaintiff and thereafter the side of the defendants was closed on account of their and their counsel's absence. The case was then adjourned for arguments to 10-11-1983. Since again the defendants and their counsel remained absent, the case was posted for announcement of judgment on 14-11- 1983 after arguments were heard by the learned Judge in absence of the defendants and their counsel. Consequently, although the judgment was given on merits after considering all the issues involved in the case but the same was in absence of the defendants. In fact, as has been pointed out above, from 8-11-1983 the case proceeded one sided, in absence of the defendants. Therefore, in my view, the judgment was ex parse notwithstanding the fact that the same was given on merits. It is no one's case that the learned Single Judge proceeded under Order XVII, Rule 3, C.P.C.
Or that the same provisions were attracted under the circumstances of the case. The objection of Mr. S.A. Sarwana is, therefore, overruled [Underlining is mine].
62. Further in the case of Muhammad Tahir v. Emirates Bank International PJCC and another, it was held as under:-- "....Before declaring any person ex parte, the court ought to ensure that all reasonable and possible efforts have been made for the effective service on the parties. In this case, neither the bailiff has complied with relevant provisions nor the Additional Registrar of this court has held any inquiry as to sufficiency of service and ordered the substituted service. The judgment of honourable Supreme Court reported in 1996 SCMR 1703 (supra) is quite applicable in the facts and circumstances of this case in which the judgments were set aside on the ground that no personal service was effected on the defendant, who was residing outside Pakistan. It was further held in the same judgment that substituted service effected in a local newspaper was not in accordance with the law and address of the publication and in the plaint was different. Another judgment reported in 1985 SCMR 1228 is also helpful to the case of applicant that before ordering substituted service, there must be an opinion that it was not possible to have the defendant served in the ordinary way. The Additional Registrar's diary does not show that any opinion was formed and in fact it shows that many times the plaintiff failed to pay the cost of process, fresh address was filed which was also incorrect. The record further shows that on 12-11-2004 summonses were not issued to the defendant as cost was not paid and one week's time was allowed for the payment of cost.
Simultaneously, the diary shows that the plaintiff moved an application under Order V, Rule 20, C.P.
C. Praying to serve the defendant by way of publication. The application was allowed on the same date. The directions of Additional Registrar are contrary, on one hand he allowed one week's time for the payment of cost and on the other hand on the same day the application was allowed for substituted service." [Underlining is mine].
63. In the instant case, even the defendant was not put on notice and the plaint was restored to its 'original position' as was on 24-8-1999 by the learned Addl. Registrar [0.S.] on the ground that was already available to the plaintiff since 19-1-2001. The period of about 5 years was also overlooked or ignored for no justifiable reasons, I am of the tentative view that the period of more than 4-1/2 years w,e,f, 24-8-1999 upto 11-2-2004 [when C.M.A. No,4037 of 2005 was presented in court] in no event be termed as a reasonable time.
64. Further after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973, the situation has now significantly changed. Article 10-A mandates that 'civil rights' and 'obligations' be adjudicated upon through a 'fair trial' and 'due process' of law. Fair trial' and 'due process' besides a fundamental right, cover both substantive and procedural due process. For easy reference 10-A of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced here in below : - "10-A, Right to fair trial---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be, entitled to a fair trial and due process."
65. On this aspect of the matter I would like to refer to the case of Shabir Ahmed v. Kiran Khursheed and others (2012 CLC 1236), wherein it was observed:- "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life, liberty or property-The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing, a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights.
The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Underlining is mine].
66. Any order passed or proceedings held in violation of 'fair trial' and 'due process' indeed, would be null and void. Reliance is placed on the case of Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another [2012 SCMR 1235] wherein it was observed as follows:- "11 Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. In a very old judgment of this Court reported as Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681), this Court went on to hold as under:-- "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal. "
67. So far as 'due process' is concerned, in the case of Shabbir Ahmed v. Kiran Khursheed and others (2012 CLC 1236) a learned Single Judge of Lahore High Court while, dilating upon Article 10-A of the Constitution of. Islamic Republic of Pakistan, 1973 has observed as under:-- "26 The impugned auction also offends the newly incorporated fundamental right under Article 10- A of the Constitution, which mandates that civil rights and obligations of the petitioners can only be determined through fair trial and due process. Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that "each person shall be accorded certain "process" if they are deprived of life, liberty or property.,..
The question then focuses on the nature of the 'Process" that is "due." The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome." Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person. In this case the haughty indifference of TMA to ignore the petitioners and their existing tenancy and to smugly proceed directly with auction of the lease hold right does not pass the test of fairness or due process under Article 10-A." [Underlining is mine].
68. Things, under the principles of jurisprudence are required to be done strictly in accordance with law. Rules and procedure are meant for the purposes of advancing the cause of justice as law always leans towards adjudication of cases on merits and not otherwise.
69. The relevant rules pertaining to 'striking off of the plaint and its follow up situation are Rules 128, 129 and 130 SCCR (O.S.) which run as below:-- "(i) Rule 128 of SCCR (0.S.):
128. Time for payment of process fee and consequences of nonpayment. Process fee for the issue of summons, notice or other process and costs of advertisements shall be paid to the Nazir within seven days from the order directing such summons, notice, process or advertisement to issue or within such further time as may be allowed by an order in writing of the Registrar, (0.S.). In default or such payment, the plaint or application shall be struck off by the Registrar, (0.S.), who shall make an endorsement to that effect on the plaint or application and sign it. The plaintiff or applicant or his advocate presenting the plaint or application is expected to ascertain and shall be presumed to know the date of the order directing the issue of the process or advertisement."
(ii) Rule 129 of SCCR (0. S.)
"129 Restoration. A plaint or miscellaneous application struck off the file under the last proceeding rule, may be restored to the file, as of the date on which it was originally filed; on the application of the plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Registrar (0. S.).
(iii) Rule 130 of SCCR (U.S.)
"130. Fresh plaint. When a plaint or miscellaneous application, is so struck off the file, the plaintiff or the applicant shall be at liberty subject to the law of limitation to present a fresh plaint or miscellaneous application for the same matter. "
70. From the perusal of the above it is manifestly clear that upon 'striking off' the plaint, Rule 130 SCCR (OS) though permits filing of fresh plaint but such filing of plaint in view of Rule 130 SCCR (0.S.), of course, is subject to limitation. Under circumstances of the present case the restoration of plaint after about 5 years and that too without notice to the defendant besides not justifiable seems beyond the reasonable time.
71. Further courts are not supposed to straight away grant ex parte decree on the basis of the plaint rather to pass it strictly on merits. In the present case the 'ex parte decree' has been passed without recording of evidence. No doubt, the 'affidavit-in-ex parte proof' was available on record but the plaintiff s witness failed and/or avoided to come forward and record his evidence. It is well known principle of law that pleadings are not evidence by themselves.
72. In this regard reliance can be placed on the following cases:--
(a) Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others (PLD 1975 K 598 Placitum 'A') wherein it was held as follows:- "7 As a rule pleadings are not evidence by themselves; the statements made by defendant in the written statement, could be used as evidence in cases where they amount to admission of the plaintiff's pleas. These admissions could be direct or even by implication, and in both cases are proof in themselves."
(b) Hakimuddin v. Faiz Bux (Reported in 2007 SCMR 874) wherein it was observed as follows:- "5 It is an admitted fact that respondent did not appear before the trial court to prove the content of the plaint. It is established law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in court or admitted by the other party. The respondent No, 1 failed to prove the factum of his superior right of pre-emption, therefore, trial court as well as learned High Court erred in law to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 1991 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not a substantive evidence". [Underlining is mine].
73. More importantly rules and regulations are meant to streamline the procedure and administer the course of justice. Courts of law always prefer a decision of a case on merits and discourage technical knockout. Behind all legal formalities the main purpose is to safeguard the paramount interest of justice and not to thwart it.
74. On this aspect of the matter I would like to reproduce herein the following extract from the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) which reads as under:- "I must confess that having dealt with technicalities for more than 40 years out of which 30 years are at the Bar, I do not feel much impressed with them. .I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." [Underlining is mine] .
75. In the present case the plaintiffs witness did file 'affidavit-in-ex parte proof' but remained away and did not come forward to record his evidence in proof of the claim alleged in the plaint and thus straight away the plaintiff's suit was decreed ex parte on 24-10-2007.
76. The case laws cited by the learned counsel for the plaintiff besides distinguishable are not relevant in the facts and circumstances of the instant case.
77. For and in view of appreciating the facts of the case and discussion herein above the ex parte judgment and decree passed on 24-10-2007 in Suit No,459 of 1997 [now Trading Corporation of G Pakistan (Pvt.) Ltd. v. Messrs Naveed Hussain Shah) are set aside. Applicant (defendant) is directed to file his 'written statement' within a period of 30 days positively.