' The revision petition arises out of an application for setting aside ex pane decree passed against the petitioners by the learned Sub-Judge, Muzaffarabad, on 31st October, 1981.
2. Messrs Muhammad Farid Khan and Company instituted a suit for declaration, rendition of accounts, payment of arrears and perpetual injunction against Azad Kashmir Logging and Saw Mill Corporation through its General Manager and Forest Manager, in the Court of Additional Sub- Judge, Muzaffarabad, on 16th September, 1980. It was averred that the plaintiff-respondents acquired a contract from the defendant-petitioners for work of lopping, felling, conversion into logs of trees and transportation of timber from compartment No, 2, lot No, 69, Range Bandi (Karan) to Seemari AKLASC fimber Depot, on payment at the rates entered in the agreement executed between the parties on 15th July, 1976. The contract was made for a period of two years, with effect from 7th July, 1976 to 6th July, 1978. In compliance with the terms and conditions of the contract, the contractor deposited a sum of Rs, 60,000 as security on 25th March, 1976. According to the terms and conditions of the contract, the contractor-plaintiff was to make his own arrangements of accommodation and transportation for labourers, construction of roads, extraction paths and rolling paths needed for extraction of timber, payment of compensation to land-owners for use of their lands, construction of roads and paths for transportation of timber and payment of compensation to labour for injuries and deaths, if any due to accident during working period, etc. It is alleged that on account of bad weather, resulting in heavy rains, snow-fall and cold waves, the work andertaken in lieu of the contract was not completed in time, as such defendants were approached from time to time to extend the stipulated period of the contract. On appreciation of the cause shown by the contractor, extension was allowed to plaintiff through various orders of the defendants described in the pleadings of the plaintiff firm. It was averred that the roads and rolling paths constructed by the contractor were damaged by erosion. He collected blasting material for reconstruction of roads and their repairs but meanwhile the defendant-petitioners ordered cancellation of the contract, confiscation of security and refused to account for the work done by the contractor by that time, through order, dated 24th January, 1980 According to the pleadings of the plaintiff, the action of defendants was illegal, without juridiction, mala fide and unwarranted, as such liable to be set aside. In the alternative, he prayed for refund of the amount of security, rendition of accounts for the work done by him, payment of arrears, assessment of compensation for the work done and its payment in addition to payment of compensation for loss suffered by the plaintiff due to non-compliance of terms and conditions of the contract by the defendant Corporation. The claim of the plaintiff was repudiated by the defendants through written statement, dated 25th February, 1981.
3. The chequered history of litigation between the parties reveals that the trial Court issued summons to the defendants for appearance in Court and filing written statement. The summons issued on 4th October, 1980, for appearance in the trial Court on 18th October, were shown duly served through an employee of the defendant Corporation and subordinate of defendant No, 2, on 8th October, 1980. In consequence of service of summons, defendant No, 2 appeared in Court through late Khawaja Amir-ud-Din, Advocate on the said date whereas defendant No, 1 failed to do so, as such ex parte was ordered against defendant No, 1 accordingly. Defendant No, 3 being resident of Pakistan could not be served ordinarily, therefore, he was served through substituted service by publication of a proclamation in weekly 'Millet', Muzaffarabad. On his failure to appear in the Court, defendant No, 3 was also proceeded ex parte. As discussed earlier, the written statement was submitted by late Khawaja Amir-ud-Din, Advocate, who was engaged exclusively by defendant No,
2. The Court adjourned the case various times for framing of issues when on 4th April, 1981, on account of death of Khawaja Amir-ud-Din, the counsel for defendant No, 2, it adjourned the case to 3rd May, 1981 and issued notices to defendants Nos. 1 and 2. As the notices were not served on the defendants, the case was adjourned to May, 30 when the case was transferred from the Court of Additional Sub-Judge to the Cnurt of Sub-Judge, Muzaffarabad. The file was received in the Court of Sub-Judge on September 22, 1981 when it was registered in the civil list and defendants were given notice in the light of previous order passed by the Additional Sub- Judge. On 29th September, 1981, it was reported that defendants were served by affixing copies of notices on the outer door of the office of defendants. In consequence of the report of the process- server, the learned Sub-Judge ordered ex parte against the defendants and directed the plaintiff to lead evidence in support of the claim. On recording ex parte evidence, ex pane decree was passed in favour of the plaintiff against the defendants on 31st October, 1981. The defendant- petitioners moved an application for setting aside the ex parte decree in the Court of Sub-Judge on 27th January, 1982. In the application, the defendant-petitioners challenged the propriety of service of notice by pointing out that the notice was not served on them in strict compliance with the provisions of Order V. Rules 10, 18 and 20 of the Code of Civil Procedure. No good and sufficient cause was explained in the application for absence of the defendants on the date when ex parte was ordered against them or the ex parte decree was passed. The application was opposed by the decree-holder on legal and factual aspects. Issues arising out of the controverted questions were framed on 9th February, 1985 when the applicant-petitioners were directed to lead evidence in support of their stand. The applicant-petitioners were given five opportunities to lead their evidence but they failed to avail the same and ultimately on 27th July, 1985, no one appeared on behalf of the applicant-petitioners, as such the app ication was dismissed for want of prosecution and proof. The order of dismissal of the application to set aside ex parte decree, passed on 27th July, 1985, was challenged in appeal before the learned District Judge and the memorandum of appeal was submitted in the District Court on 2nd September, 1985. The appeal was patently beyond time and no effort was made, nor step taken to seek condonation of delay as envisaged under law. The learned District Judge, in his elaborate judgment, refused to interfere in the impugned order in view of the negligent conduct of the General Manager and the Forest Manager AKLASC in addition to the ground of limitation. This order of the learned District Judge is assailed in the present petition by seeking cancellation of ex parte decree on the grounds raised in the application moved in the trial Court.
4. The revision petition was preferred by Mr. Manzoor-ul-Hassan Gilani on behalf of General Manager and Forest Manager AKLASC as their authorised counsel on 12th Jahuary, 1986. Mr. Manzoor-ul-Hassan Gilani was appointed as Advocate-General in the last week of March, last. In view of the changed status of Mr. Manzoor-ul-Hassan Gilani, Mr. Mujahid Hussain Naqvi, the learned counsel for the respondent, objected to the prosecation of the petition by Mr. Gilani as according to him, Mr. Gilani being a wholetime Government servant, was divested of his legal authority to act as counsel of any party other than the Government. The objeation raised by Mr. Naqvi was controverted by Mr. Manzoor-ul-Hassan Gilani who insisted that he was competent to prosecute the revision petition on behalf of the present petitioners as the petitioner Corporation, though an autonomous body, was controlled and administered under the authority of the Government.
5. The Government, in exercise of its powers conferred under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, framed rules containing the terms and conditions of appointment of Advocate-General known as "The Advocate-General for Azad Jammu and Kashmtr (Terms and Conditions) Rules, 1975". Rule 3 postulates that the Advocate-General shall be wholetime Government servant and shall not be allowed private practice of any kind. It is in the light of this rule that Mr. Naqvi objected to acting of Mr. Gilani as counsel on behalf of the Corporation as according to him, AKLASC being an autonomous body, does not form part of the Government and on that count, Mr. Gilani incurred his disability under rule 3 to act as counsel of the Corporation. It is undenied that AKLASC is a Corporation, as such an autonomous body. It is created through a statute and all suits instituted against it or by it against third parties are conducted under the authority described under the rules. The conduct of the Corporation in this case reflects that the General Manager of the Corporation is the competent authority to institute or defend suits on its behalf. This is why the suit instituted against the Corporation was defended by the General Manager. Likewise, the application to set aside ex pane decree, appeal before the District Judge and present petition were also prosecuted by the General Manager and the Forest Manager of the Corporation and not by the Government. The objection, therefore, technically prevails, but the present petition is no likely to be dismissed by virtue of disability of Mr. Gilani to prosecute it. Section 115, Civil Procedure Code, which governs the revisional jurisdiction of High Court, postulates that High Court may call for record of any case which has been decided by any Court subordinate to it and may make such order in the case as it thinks fit. In present case, record of the subordinate Court was called much earlier than the appointment of Mr. Gilani as Advocate-General. It was during the pendency of the petition that status of Mr. Gilani was changed from an Advocate to Advocate-General. Therefore, once this Court has called for the record of the subordinate Court and is seized with the case, the petition is not to be thrown out merely for non-appearance of the petitioners or due to disability incurred by the counsel in the meantime. The petition instead of being rown out on technical ground developed during its pendency, is to be decided on merits.
Keeping in view the norms of administration of justice.
6. Coming to the merits of the case, the first objection raised in the application for setting aside ex parte decree, is that the petitioners were not served in the light of the provisions of Order V, rules 10, 18 and 20 of the Code of Civil Procedure, as such the ex pane decree being a nullity in the eye of law was likely to be set aside. Order V lays down a scheme of issue of su 'mons and service on defendants. Rule 9 (1) postulates that where a defendant resides within the jurisdiction of the Court in which the suit is instituted or has an agent resident within the jurisdiction empowered to accept service of summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates. Rule 10 provides a mode of service and lays down that service of summons shall be made by delivering or tendering a copy thereof. Rule 18 further provides for endorsement of time and manner of service of summons and rule 20 relates to substituted service.The scheme of issue of summons and execution of services on defendant relates to summons issued for the first time by Court informing the defendant to appear in the Court on a specific date and time to admit the claim of the plaintiff or defend his interest in dispute. In present case, undeniably defendants Nos. 1 and 2 were duly served on 8th October, 1980 and they were ordered to appear in the Court on 18th October, 1980. In consequence of the service of summons, defendant No, 2 appeared on the said date whereas defendant No, 1 failed to do so.
As a consequence, ex parte order was passed against defendant No,
1. This factual aspect was not controverted by the defendant-petitioners in the application to set aside ex parte decree, memorandum of appeal before the District Judge and in the present petition. The objection, therefore, that the defendants were not served in the light of provisions of Order V, Civil Procedure Code, is not sustainable. The fact of the matter is that grievance of the defendant-petitioners rests on non-service of notice issued by the trial Court on 22nd September, 1981 for their appearance on September,
29. This notice was issued in continuation of the order of the learned Additional Sub- Judge passed on 4th April, 1981 directing to issue notice to the defendants as by that time late Khawaja Amir-ud-Din, Advocate, representing the defendants, had died. The Additional Sub-Judge ordered issuing of notice to the defendants so that they were able to defend their interest in the suit by engaging some other counsel. The order of the Additional Sub-Judge is not protected by Order V or any other provision of the Civil Procedure Code. As the Civil Procedure Code and the Courts and Laws Code, controlling the proceedings in Civil cases Azad Jammu and Kashmir, do not envisage issuing of notice after service of first summons on dtfendant in any eventuality including the one in present case, issuing of notice to the defendants was not necessary for the trial Court, but as the trial Court considered it relevant to issue notice, the same was done to attain a logical end. Therefore, even if it is accepted that the notice was not duly served on the defendants, the proceedings undertaken by the trial Court are not rendered illegal. In Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (1) the word "sommons" was interpreted by Mr. Justice Muhammad Afzal Zullah, as not to include a "notice". The interpretation of the word "summons" in that case was rendered by considering the scope of Article 164 of the Limitation Act, controlling the limitation to set asid ex pate decree. In the view of the learned Judge, the legislature itself used
(1) PLD 1981 SC 21 the words "summons" and "notice" in the Code of Civil Procedure at different places in view of the obvious distinction between the two. In Farid Khan's case (1) Mr. Justice Sher Zaman Chaudhry, while making analytical appreciation of provisions of Articles 164 and 181 of the Limitation Act as applicable to setting aside an ex parte decree under Order IX, rules 6 and 13, Civil Procedure Code, observed that once a defendant is served with first summons when the suit is originally instituted, no fresh summons under Order V Rule 1 of the Civil Procedure Code is required to be issued after presentation of the amended plaint. The facts of that case were slightly different from the present one as in that case the suit was remanded with the direction of presenting amended plaint in the trial Court. The plaint was received in the trial Court on a different date than the one fixed by the appellate Court when the defendant was absent. The trial Court, on account of absence of defendant, proceeded ex parte and ultimately passed an ex parte decree. The ex parte decree was sought to be set aside on the objection of failure of the trial Court to issue summon to the defendants for their appearance on the date when amended plaint wa submitted. While disposing of the objection, the learned Judge in th Supreme Court was of the view that once the defendants were duly served with first summons contemplated under Order V, C. P. C., no fresh summons was necessary on a subsequent date for presentation of amended plaint. The authority laid down in the aforesaid cases is quit sufficient to settle the controversy raised in the present case, In present case, the defendant-petitioners have not disputed the service of the first summon issued to them.
Rather the service of first summons is admitted and it is only the notice ordered to be issued at a subsequent stage which is disputed at all levels. The objection being devoid of force, is not found sustainable.
7. It is already noticed that the defendant-petitioners failed to account for their absence on 4th April, 1981, the date fixed for framing of issues. Moreover, they were unable to show any cause for their absence on the subsequent dates including the date on which ex pane decree was passed, whereas Order IX, rule 13, C. P. C., for setting aside a decree ex pane against the defendant, enjoins upon the defendants who applies to the Court to set aside ex parte decree, to satisfy the Court that the summons was not duly served or that he was prevented by some sufficient cause fro appearing when the suit was called on for hearing. In present case, it is already settled that the summons was duly served on the defendants. The only alternative available for setting aside the ex parte decree was to satisfy the Court that the defendants were prevented by a sufficient cause from appearing in the Court on the relevant date. The defendant-petitioners were unable even to point out any cause irrespective of its being a sufficient cause in the eye of law, for their omission to appear in the Court.
8. The other grounds raised in the petition to reverse the finding of the learned District Judge and the trial Court relate to limitation in filing the first appeal and nature of the order of dismissal of application for want of prosecution and proof. It is admitted that the first appeal was beyond time.
It is further admitted that no application for condonation or delay was made. However, it was argued that the applications for copy of the order of the trial Court was made within time but it was issued on 31st August, 1985, as such the period consumed in preparation of the copy of the order is likely to be commuted. This contention was repelled by the
(1) PLD 1985 SC (A & IC) 74 learned Distract Judge as according to him, the trial Court passed its order on July, 27, but the application for issuing copy was made on August, 30 and it was issued the next day. As the application for issuing copy of' the impugned order was made after expiry of period of limitation, the question of computation of period taken for preparation of the copy, which was two days only, did not arise. It was on that account that the appeal was declared beyond time. At the request of the learned counsel for the petitioners, I sent for the relevant register and other record and found that the application was moved for issuing copy of the order on August 11 and order for issuing copy was given by the officer concerned on the said date for issuing copy on August 13. However the application was entered in the register concerned instead of August 11, on August 30 and the copy was issued the next day. The learned counsel (Khawaja Shahad Ahmad) who moved the application for copy of the order, failed to explain in the memorandum of appeal as to who kept the F application between 11th and 30th of August when it was handed over to the clerk concerned who entered it in the register. The petitioners also failed to bother to seek explanation for failure to enter the application in the register on August 11 or any day earlier than August 30. On the other hand, the register which presumably bears correct entries, shows that the application was delivered to the clerk concerned on August 30 when it was entered in the register and the copy was issued the next day. I entertain no doubt on this question of fact to repel the finding of the learned District Judge. The copy of the order of the trial Court was issued next day to the delivery of the application to the officer concerned the question of computation of limitation is, therefore, not available in present case. The learned District Judge has rightly repelled the contention of the petitioners on that score.
9. The other objection pertains to the order passed by the learned Sub-Judge in dismissing the application for setting side ex parte decree. It was argued by Mr. Gilani that the application was likely to be decided under the provisions of Order XVII, rule 2 instead of rule 3, Civil Procedure Code.
There is no force in the contention. Order XVII lays down a scheme of adjournments in proceedings undertaken in a suit. Mr. Gilani was unable to satisfy that an application to set aside an ex parte decree was covered by the definition of "suit". Moreover, even if it is accepted by stretching the definition of "suit", that proceedings in an application are also included in it, even then the objection finds no force as under rule 3 of Order XVII, where a party (to a suit) to whom time has been granted, fails to produce his evidence or cause attendance of his witnesses, for which time was allowed, the Court is empowered to proceed to decide the matter forthwith. In present case, undoubtedly time was given at the request of the petitioners for their evidence but they failed to lead evidence or cause attendance of their witnesses, as such no choice was left with the Court except to dismiss the application on merits.
10. As noticed earlier, the only point raised in the application for setting aside ex parte decree, was claimed as defective service of notice" This question was a mixed question of law and fact. The only evidence required to be produced was production of the ratites purported to have been served on defendant-petitioners. No trouble was taken even to get these notices formally admitted in evidence. On the other hand, the Court felt satisfied that service of notice on the defendants having been made in due course of time, was presumbly correct. Therefore, in absence of rebuttal by cogent evidence of an official act of an officer of the Court, the Court was ordinarily satisfied to dismiss the application. The second objection is, therefore, rejected.
11. The objection of non-service of notice loses importance from another angle as well. It is accepted that at the time of filing of the suit, the plaintiff also preferred an application for issuing interim injunction by restraining the defendant Corporation from transporting the timber from the contract area and Seemari Depot to Muzaffarabad. This application was contested by the defendant-petitioners. The learned Sub-Judge refused to issue interim injunction by dismissing the application on 10th March, 1981. This order was chalknged in appeal before the District Judge. The learned District Judge allowed the appeal and issuedi direction to the defendant-Corporation to refrain from transporting the timber to any other place till the decision of the case. The order of District Judge was passed on 22nd September, 1981. This order of the District Judge/ was challenged in revision before the High Court and the same was disposed of after few months. This is just to point out that after 4th April, 1981, the date when the trial Court issued notice to the defendant-petitioners for engaging some other counsel on account of death of their previous counsel, the defendant-petitioners remained present in the trial Court as well in the Court of District Judge and the High Court where they contested application for issuing interim injunction.
Therefore, it can hardly be believed that during the contest of application for interim injunction, the defendant had no knowledge of death of their counsel. In other words, it is safe to believe that the defendant-petitioners who were already in the Court in subsidiary matter of the same subject of dispute deliberately failed to appeal in the Court to defend their interest in the suit.
12. Now coming to the judgment passed in ex pane decree on 31s October, 1981, it is noticed that the judgment is written in the hand Reader of the Court. It contains no substance of the claim of legal plainti nor it refers to any evidence. It is a cryptic order, as such devoid o substance and character of a judgment. In ex parte proceedings, plainti produced Muhammad Farid Khan, Muhammad Afzal and Muhammad Ishaque as witnesses. These witnesses, in their summary statements, confined to depose facts relating to grant of the contract and its cancellation. Muhammad Farid Khan gave some details The plaintiff somehow faded to bring on record the documentary evidence appended with the pleadings which, in my estimation, would have supported the claim of the plaintiff. The only tangible evidence appended with the pleadings was thus not brought on record to substantiate the claim of the plaintiff. Therefore, on one hand, there was no evidence in the eye of law to allow the claim of the plaintiff and on the other hand, whatever evidence was brought on record, was not referred to in the judgment nor appreciated in a legal fashion.
13. Order XX, rule 4(2), Civil Procedure Code, 'postulates that judgment shall contain a concise statement of the case, points for determination, decision thereon and reasons for such decision.
This provision of law clearly enjoins upon the Court to refer to leading facts and grounds on which the claim of the plaintiff rests and the defence, if any, or admission, as the case may be. The Court has to determine the controversial points at issue and has to decide those issues by appreciating the evidence of the parties and giving reasons in support of its ultimate decision. This is a mandatory provision of law and any departure from a mandatory provision of law obviously render the judgment a nullity,
14. Apart from the aforesaid illegal character of the judgment, the decree passed in present case is not likely to be executed. This is so, as the decree contains no definite relief in the shape of assessm ent of compensation. Arrears, the amount spent on construction of road, etc., claimed by the plaintiff. Unless a definite and specific value of the claim made by the plaintiff was fixed and determined, and allowed as relief in his favour, in my view, the decree cannot be executed to satisfy the allowed claim. Mr. Naqvi, the learned counsel representing the plaintiff-respondent, agrees with this observation.
' Another aspect reflecting inaptitude of the learned Sub-Judge in passing decree in present case is that he failed to pass a preliminary decree as required in such a case. Even if a preliminary decree was not passed and a final decree was passed, even then, as discussed earlier, definit claim of the plaintiff was to be determined which was not done in present case.
15. On coming to the conclusion that the ex parte decree was in contravention to law, it is to be determined as to whether such a decree can be set aside in exercise of revisional powers of the High Court or not. My answer to the question is yes, High Court in exercise of its revisional jurisdiction conferred under section 115 of the civil Procedure Code coupled with section 39 of the Courts and Laws Code, is competent to set aside such a decree. The revisional power of the High Court, ordinarily can be invoked when it appears that the subordinate Court seized jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted illegally or with material irregularity.
In presence of any of these conditions, High Court is conferred power to revise such an order of the subordinate Court. In Azad Jammu and Kashmir, clause (d) is added to section 115 of the Civil Procedure Code which further empowers the High M Court to revise an order of a subordinate Court to meet the ends of justice. Thus the scope of revisional powers conferred on Azad Jammu and Kashmir High Court is more vast. In addition to that, section 39 of the Courts and Laws Code Act further empowers the High Court to rectify any error, illegality, irregularity or mistake of a subordinate Court to meet the ends of justice. It is already noticed that the ex parte decree passed by the subordinate Court is patently illegal as it is in clear contravention to provisions of Order XX, rule 4. Sub-rule (2), Civil Procedure Code. The decree in the present shape is not at all helpful to satisfy the claim of the plaintiff as the real claim is yet to be determined. The decree being a nullity, is open to intervention.
16. The reasons listed above lead to the conclusion that the exercise undertaken by the petitioners throughout rested on their negligence, carelessness and inaptitude to defend their interest adequately. The petitioners were not entitled to any relief unless, of course, the decree in dispute was not found in a bad shape, unwarranted by law.
17. The decree is, therefore, set aside. The case is remanded to the file of Sub-Judge, Muzaffarabad who shall frame issues and decide the case expeditiously in view of its protracted trial. The parties are directed to appear before the learned Sub-Judge, Muzaffarabad, on 15th July, 1986.