' This revision petition under section 115, C.P.C. Was directed against the order dated 11-4-1988 whereby the learned Civil Judge dismissed the application under Order IX, rule 7, C.P.C. Filed by the petitioner/defendant for setting aside the ex parte proceedings.
2. The necessary facts for appreciating the questions raised are that the respondents filed a suit for declaration with consequential relief describing the petitioner/defendant as Awami Autos Limited.
The property, subject-matter of the suit, was originally evacuee property which the respondents/plaintiffs claimed to have acquired through public auction held by the Settlement Department. It was asserted in the plaint that the company i.e. Awami Autos Limited being in occupation was allowed to continue in possession as tenant and that this company was taken over by the Government of Pakistan in 1972 under the Economic Reforms Order, 1972 and then it was named as Awami Autos Limited. This company on demand to vacate the premises not only denied the existence of relationship of tenancy but also claimed proprietary rights in the property in question.
3. The learned Civil Judge after entertaining the suit, ordered that notice be issued to the petitioner/defendant for 7-1-1986. As the summons issued remained unserved, learned Civil Judge ordered that the defendant be served through registered post as well as through usual process for.
2-3-1986. The registered postal envelopes with Acknowledgment Due Receipts were ordered to be deposited within three days. It was further directed that in the case personal service is refused, the process will be served by pasting a copy thereof on the outer door of the defendant. On 23-1-1986, the learned Civil Judge though observed that none has entered appearance on behalf of the defendant despite service of notice through pasting of the summons yet on the request of the counsel that the service of the defendant was not possible through usual mode, directed that service through publication of notice in Daily `Nlawa-iWaqt' be effected. The notice was published in Daily Nawa-i-Waqr on 30-3-1986 and as on the adjourned date i.e. 8-4-1984, none appeared on behalf of petitioner/defendant, it was ordered to be proceeded with ex parte. Thereafter the respondents/plaintiffs took many dates to produce their evidence which was ultimately concluded on 2-6-1987. The matter was then fixed for arguments and for judgment as well but again suit was fixed for arguments. The petitioner/defendant then on 7th November, 1987 submitted an application for setting aside the ex parte proceedings with the assertion that only on 1st November, 1987 on telephone a person without disclosing his identity, informed the Assistant Manager of the petitioner company that a suit filed against it is pending in the Court and then after making inquiry, application is being submitted. It was averred that earlier to that the petitioner had no information of the suit and that it was never served. This application was supported by affidavits of two persons namely Muhammad Yousaf, Assistant Manager and Amjad Saeed, Assistant of the petitioner- company. The respondents resisted this application by filing the reply but the same was not supported by any affidavit. The learned Civil Judge vide impugned order. Rejected the application mainly for the reason that the stamp fixed on the application was in the name of Sindh Engineering (Private) Limited while, the application was moved on behalf of Awami Autos Limited; that no document was placed on record to show that Sind Engineering Private Limited was in fact Awami Autos Ltd. And that it was at this stage a Government controlled concern. The explanation as to the gaining of knowledge appears not to have been accepted with the observations that the name of the caller was not disclosed and that source of knowledge of that person about the pendency of suit was also not given. It is further observed that record shows that petitioner-company was served through summons, and despite publication of notice in the newspaper, petitioner/defendant failed to appear in Court and that there is nothing on record that the persons who have submitted their affidavits have any concern with Awami Autos Limited.
4. Learned counsel for the petitioner/defendant submitted that the refusal to set aside the ex parte proceedings made vide impugned order is based on extraneous considerations and that the reasons given in the impugned order are otherwise not available on record. It was next contended that the petitioner/defendant could not legally be ordered to be served through substituted service by publication of notice in the newspaper and as such order to proceed ex parte by the learned trial Court was without jurisdiction and illegal.
5. Learned counsel for the respondents, on the other hand, submitted that the Court having come to the conclusion that the service of the defendant through usual process was not possible, acted rightly in ordering substituted service and then proceeding ex parte on failure of the defendant/petitioner to enter appearance and that the persons who have submitted affidavits had not shown that they had any concern with Awami Autos Limited and as such the learned trial Court was right in not relying on the said affidavits and in not believing the said deponents.
6. Having gone through the record of the suit made available by both the learned counsel, I am of the view that the learned trial Court acted with A material irregularity in ordering ex parte proceedings against the petitioner/defendant. Firstly, no particular and specific address of the defendant/petitioner was given in the plaint. The defendant was described as Awami Autos Limited, Shahrah Quaid-e-Azam, Lahore. Neither the person through whom the defendant was being sued nor the complete address of the petitioner was thus given. The process-server in his reports has not indicated as to which place at Shahrah Quaid-e-Azam he had gone to serve the process issued by the Court. Secondly, the service of summons through pasting as reported by the process-server was not accepted even by the learned counsel for the respondents. A perusal of the order passed on 2-3-1986 shows that despite service through pasting, the counsel stated that service of the defendant through usual process was not possible and as such service through publication of notice in newspaper be directed. The service of the summons on the defendant was thus not considered effective. The question is whether in these circumstances, substituted service could at all be directed. The answer is in negative. Thirdly despite direction to have the process served through post as well, no such process through post was issued as even the registered envelopes were not deposited. In any case, the service through pasting was not accepted as valid and as such there was no question of resorting to substituted service. I am fortified in this view by the following judgments;-
(i) Malik Muhammad Nazir v. Mian Abdur Rahim and another (PLD 1968 Lahore 792).
(ii) Mst. Mussarat Jahan Begum and others v. Waheeduddin Khan Bozai (1986 CLC 2040).
' This finding is sufficient to set aside the impugned order and to direct trial of the suit in presence of the petitioner/defendant on merits.
7. In addition to above, it may be noted that the reasons given by the learned Civil Judge for refusing the application are not valid in law. The petitioner had filed as many as 65 documents alongwith the application but. None was noticed by the learned Civil Judge. These documents, it was argued, established the taking over of the Company under the Economic Reforms Order, 1972 and constitution and establishment of Awami Autos Limited which later on was merged into Sindh Engineering (Private) Limited. Had these documents been gone into by the learned Civil Judge, it could not be observed by him that the persons who submitted the affidavits, had no concern with the Awami Autos Limited. This would have also explained the reason for purchasing the court-fee stamps in the, name of Sindh Engineering (Private) Limited.
8. For the reasons given above, the impugned order dated 11-4-1988 is hereby set aside with the result that the suit will be preceded in accordance with law in the presence of the petitioner/defendant. At this stage the request made by the learned counsel for the petitioner which was not opposed by learned counsel for the respondents, may be noted. Learned counsel requested that as the suit involves important questions of law and fact the same be ordered to be tried and disposed of expeditiously by the learned Senior Civil Judge, Lahore. The request being reasonable and as is also not opposed, is accepted. The parties are directed to appear on 30-5- 1989 before the learned Senior Civil Judge, Lahore to whose Court the suit titled Syed Wajid All, etc. v. Messrs Awami Autos Limited is hereby transferred. He will after summoning the file proceed with the suit in accordance with law and shall dispose of the same within six months thereafter. The petition thus succeeds and is accepted. The parties are, however, left to bear their own costs.