' ABDUL KARIM KHAN KUNDI, C.J.--It is a strange case. Plaintiff filed a suit for damages for stoppage of VCR and TV in his hotel and causing him loss in hotel business ever since February, 1982 till the disposal of the suit at the rate of Rs,70,000 per month and impleaded Ghulam Muhammad, NaibTehsildar (respondent No,11), Assistant Commissioner, Chitral (respondent No,2), Deputy Commissioner, Chitral (respondent No, 3), Government of N.-W.F.P. Through Deputy Commissioner, Chitral (respondent No,4) and Naib-Tehsildar, Drosh (respondent No,5) as added later on. On 19-4- 1990 plaintiff along his counsel was present while defendants Nos. 2 to 5 were ,represented by A.G.P.
And defendant No,1 was not served due to his transfer to Mardan, hence there was ordered his service through affixation of notice on his abode for 20-5-1990, which is itself a strange order because of defendant No,1 was transferred to Mardaii then he was to be served on his fresh address and not that he was to be served on his old address through affixation.
2. In the conduct of proceedings the trial Court was found either to be totally ignorant of the provisions in the Civil Procedure Code regarding service on Civil Public Officers or he has deliberately omitted to press into service the said mandatory provisions of the Code. Rule 26-A of Order V provides that: "Where the defendant is a servant (not belonging to the military, naval or air forces) of any Government in Pakistan, or a servant of a railway company or local authority in Pakistan, the summons together with a copy of it to be retained by the defendant shall be sent, with a request that it may be served on the defendant,
(a) .............................................................................................
(b) in the case of defendant serving in connection with the affairs of any other Government in Pakistan, in the case of a servant of a local authority in Pakistan, to the Home Secretary to that Government or, as the case may be to the Home Secretary to the Government in whose territories the local authority has its jurisdiction."
' Rule 27 of the said Order further makes it incumbent upon the Court to serve the notice on the defendant through the head of office in which he is employed, if it can be most conveniently so served. The Code still gives another option to the Court in terms of Rule 30 for substitution of a letter for summons to a defendant of a rank entitling him to such mark of consideration.
3. Again substituted service can be ordered only when it is proved on record that the defendant is deliberately avoiding service, or he cannot be served in the ordinary way, or he refuses to accept service, or he has not been heard of for a long time. In this case neither of these eventualities necessitating substituted service, had occasioned. There shall be called for the explanation of the said Senior Civil Judge having passed the orders of substituted service. On 20-5-1990 defendants Nos. 2 to 4 were present through A.G.P. While the attendance of defendant No,5 has not been recorded as present or absent. Defendant No,1 has been served through affixation for the date and he was placed ex parte. Defendants No,2 to 5 were directed to file their written statement on 11-6- 1990. On the said date the Presiding Officer was on leave and the case was posted to 30-6-1990.
On 30-6-1990 the Court ordered for the filing of written statement within seven days and fixed the case for framing of issues on 22-7-1990. On 22-7-1990 plaintiff was present, A.G.P. Was on leave and case was fixed for 30-7-1990 for filing of written statement without notice to the A.G.P. Again the learned Senior Civil Judge of the day shall furnish his explanation that how without a notice to A.G.P. Or the defendants they would know the date of hearing fixed for 30-7-1990 to file their written statement. On 30-7-1990 the Court recorded the attendance as "parties present". We don't , know whether the defendants, the Deputy Commissioner and Assistant Commissioner were present in person that he recorded the attendance of the parties. The Presiding Officer has again proceeded to state that A.G.P. Was not filing his written statement and had asked for adjournment and that he waited till the Court time was over but he still did not turn up, hence he was to proceed under Order VIII, Rule 10, C.P.C. And to grant a decree prayed for. This impugned judgment and decree was assailed by defendants 2 to 5 in appeal before the District Judge. Let it be said that such an appeal before the District Judge was not competent because of its valuation. Anyhow defendant No,1 has meanwhile filed an application for setting aside of the ex parte decree which was dismissed as time-barred. An application for impleadment was also dismissed and the ex parte decree was allowed to stay intact.
4. Unfortunately the learned Senior Civil Judge at the time whose explanations are to be called did not appreciate that it was a suit against the Provincial Government and under section 80(1)(b) in a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District was to be given a notice. Here the Provincial Government has been sued through the Deputy Commissioner and not through the Secretary or the Collector of the District. It is, however, a different thing that three offices in a District Magistrate, Collector and Deputy Commissioner are held by one man. Again under the proviso to subsection
(2) of section 80, C.P.C. In a suit instituted against a Provincial Government without notice the Court shall allow not less than three months to the Government to submit its written statement. Plaintiff has not stated in his plaint to have served any notice contemplated by section 80(1), C.P.C. And the learned Senior Civil Judge appears to be oblivious of the provisions of subsection (2) of section 80, C.P.C. As he has not given minimum three months period to the Government to submit its written statement. On 20-5-1990 the Court directed the defendants including the Provincial Government to file their written statements on 11-6-1990. Three months period is the minimum period while the Court can allow more than three months period to the Government to submit a written statement.
Herein on 20-5-1990 the Court was required to ask for filing of a written statement on and after 20- 8-1990 and not before that. Even if the date of hearing 19-4-1990 is taken for the date of attendance to the defendants Nos. 2 to 5 through A.G.P. Still the written statement was to be asked for to be filed on and after 19-7-1990 but no such written statement was asked for from the defendants on the said date. Again on 22-7-1990 A.G.P. Was on leave and defendants 2 to 5 were not placed ex parte and instead without notice in the defendants and A.G.P. Case was fixed for filing of written statement on 30-7-19911 Now on 30-7-1990 there could not be made any resort to invoke Order VIII, Rule 10, C.P.C. And to punish the defendants for having failed to file written statement and to pass a decree prayed for. Besides Order VIII, Rule 10, C.P.C. Nowhere empowers the Court to pass a decree in favour of the plaintiff if the defendants fail to file written statement.
On the other hand in such a situation it requires the Court to pronounce judgment or make such order in relation to the suit as it thinks fit. Judgment nowhere implies a blind follow up of the assertion in plaint. Judgment has been defined to mean the statement given by the Judge of the grounds of a decree or order. Sub-rule (2) of Rule 4 of Order XX provides that the judgment shall contain a concise statement of a case, the points for determination, the decision thereon and the reasons for such decision. Though rule 10 gives powers to the Court to announce judgment even without recording evidence once the party fails to tile the written statement but the consensus is otherwise and it has been consistently held that failure to file written statement though deprives the defendant to file it at a subsequent stage but the proceedings in the suit are to continue ex parte in which case short of filing written statement, the defendant can nevertheless participate in the proceedings and can even cross-examine the plaintiff's witnesses.
5. Moreover judgment of the trial Court suffers from other infirmities as well. Section 33 of the Code makes it mandatory on the Court to draw a decree following the pronouncement of judgment and Rule 6 of Order XX prescribes the mode of such decree which inter alia requires that the decree shall agree with the judgment. It shall contain the number of the suit, the names and particulars of the parties, and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. In this case as we for no decree has been drawn up. It is well settled that it is only the decree which is executed and the appeal also lies against the decree. Under section 82 where the decree is against the Government or against a public officer, a time shall be specified in the decree within which it shall be satisfied and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government Since, as observed earlier, no decree has been drawn up in this case the entire scheme of the Code has been frustrated by the conduct of the proceedings in the unwarranted manner. The inherent jurisdiction of this Court under section 151,. C.P.C. Shall be duly attracted to the facts of the case as to prevent the abuse of the process of Court and in order to achieve the ends of justice that the impugned judgment and decree dated 30-74990 are set aside and the case is allowed to proceed on merits.
6. Consequently this F.A.O. Is accepted, judgment dated 30-7-1990 and decree (although no decree sheet is drawn) are set aside and the subsequent orders dated 7-3-1992 etc. Are also set aside. Case is remanded to the learned Senior Civil Judge to proceed in the case in accordance with law. Since the defendants have also been found careless and lethargic in pursuing the proceedings they are put to the costs of Rs,2,000. Otherwise costs of the proceedings shall be borne by the parties.