1. ' The suit, from which this Civil Revision arises, was filed by the respondent (plaintiff) on 12-11-1988 before the learned IV Senior Civil Judge, Karachi (East) against the petitioner (PIA), which figured as defendant No,1, and M/s. Shahbaz. Express Travelling Agency for recovery of a sum of Rs,16,635.
2. Such suit came to be numbered as 1552 of 1988. The respondent-plaintiff s suit for recovery was partly for refund of a PIA ticket dated 11-1-1988, which was utilised for passage from Karachi to New Delhi but which could not be fully put to use because of the PIA staff at New Delhi refusing to allow the plaintiff to proceed onward and in course of time return to Karachi, the plea being that, at the time of checking in at Karachi, the relevant coupons on the ticket had inadvertently been torn by the clerk at the counter, evidently an employee of the PIA. Claim for damages on account of mental torture and agony together with loss in business was added to the claim of refund. No other relief was sought. Co-defendant, Shahbaz Express Travelling Agency was sued invoking joint and several liability as the issuing agent for PIA.
3. ' On facts, PIA was reported served, as indicated in the diary sheet of the suit dated 28-1-1989. None appeared for it on no less than 8 occasions inclusive of such date but the case was adjourned from time to time because the other defendant had remained unserved. On 20-9-1989, however, the advocate for PIA was shown present and the defendant No,2 was reported served through publication taken out on 15-9-1989. The case was, therefore, adjourned, for filing of the written statement by PIA, to 22-10-1989. No written statement was filed by 22-10-1989 and, while the advocate for PIA remained present, the case was put off for the same purpose to 21-11-1989. On the date last mentioned only plaintiff's counsel appeared and none turned up for PIA. Another opportunity was accorded and the case was listed for 14-1-1990. In like circumstances, the case was adjourned on 14-1-1990 to 13-2-1990 when also the position remained the same. The defendant PIA was ultimately declared ex parte on 13-2-1990. Plaintiff's affidavit in ex parte proof was submitted on 4-3-1990 and the suit was decreed ex parte on 25-3-1990 through an order of that date where the intrinsic value of the claim lodged seems to have been duly examined. A decree followed on 15-5-1990. An appeal, bearing Civil Appeal No,6 of 1991, was taken to the District Judge, Karachi (East) on 9-1-1991 where the essential pleas taken were that the defendant PIA had not been duly served and that the decree passed against it at the trial was a nullity because no proper application of mind was brought to bear on the dispute by the Presiding Judge. Such appeal was taken up on 27-11-1991 by the learned V Additional District & Sessions Judge, Karachi
(East) and was dismissed on the ground of limitation as well as on merits. This has given rise to the filing of the present revision application.
4. ' Mr. A.G. Siddiqui, Advocate for petitioner-PIA, has urged that no power on behalf of defendant-PIA was filed before the learned Trial Judge and, therefore, there was no appearance before such learned Judge on behalf of defendant-PIA on 20-9-1989 and 22-10-1989, as erroneously reflected in the diary sheets of those dates. When pointed out that defendant-PIA had been specifically served on 24-1-1989 and the summonses were received through proper endorsement, bearing the relevant stamp used for the purpose, Mr. A.G. Siddiqui has contended that such fact is immaterial because no ex parte order, on the initial date viz. 28-1-1989, was passed and the case was adjourned because the other defendant had remained unserved. As to the merits of the controversy, the learned counsel has urged that there was no evidence before the learned Trial Judge of the plaintiff having suffered any torture or agony nor was any physical injury accompanied with such alleged state of the plaintiffs mind. Besides, according to counsel, it was not proved that the plaintiff had acted as a reasonable man in checking his travelling ticket as regards the utilised coupons once the counter clerk at Karachi had returned the ticket to him. In such circumstances, according to the learned counsel, the decree relevant to the damages part of the claim is unsustainable though, by implication, nothing is said as to the refundable part of the ticket, which also has been decreed in the suit.
5. ' With the assistance of Mr. Habibyur Rashid, learned counsel for the respondent, I have examined the relevant record and find that petitioner-PIA was squarely served with the process of the Court on the above-noted date. It was its obligation to make due appearance in response to summons which, according to itself, as per pleas taken, it never did. The contention of Mr. A.G. Siddiqui that if no formal ex parte order was passed on 28-1-1989, none could be passed subsequently, is erroneous. Even if it was Rule 6 of Order IX, C.P.C. That was applicable the argument would only be technical and there as well Muhammad Swaleh v. United Gratn and Fodder Agencies, PLD 1964 SC 97, which is cited, is of no help since in that case the day reflected on the summons was declared a holiday and the ex parte order was passed on an adjourned date, such not being a routinely adjourned date. As it turns out, the matter was squarely covered by Rule 11 of Order IX, C.P.C. As more defendants than one were involved and the Court was obliged to assess the effectiveness of service of process on all the defendants before one or more of them could be proceeded with ex parte. This formality was duly observed and it was only after the defendant No,2 had been served by publication and all defendants failed to turn up that the ex parte order and decree were passed.
6. While, in the presence of due service on petitioner-PIA in the foregoing terms, the rest of the questions lose poignancy, the same nonetheless, may be examined. It is true, as urged by Mr. A.G.
7. Siddiqui, that no formal Vakalatnama on behalf of defendant-PIA is on record relevant to the period before the decree. Still there were pointed 4nd consistent references in the diary sheets of the Court of counsel for such defendant having represented it on no less than two occasions. At no stage of the proceedings, and more particularly when the appeal against the decree was taken, was it ever said that such mention of counsel being present was absolutely wrong and consequently a state of facts which required to be obliterated from the record. This was incumbent on defendant-PIA because reference to these facts, as emerging on the record, was also made in the final order of the Court dated 25-3-1990 and exception to the same in express terms was warranted since record of a Court of law is no plaything to be disregarded and disregarded lightly at that. Regretfully and unfortunately, we are living in difficult times where it is not an uncommon experience that because of rush of work or other pressing reasons counsel at times appear in cases but, inadvertently or otherwise, do not file any Vakalatnama, which many a times is brought on record at a later stage. It is also common knowledge that many a times counsel for a particular party are superseded and yet none seeks their discharge with the result that names of all counsels past and present, continue to reflect on the case file, even though for all effective purposes some of them stand clearly superseded. In such a state of facts, mere absence of a Vakalatnama for defendant-PIA on the record is not a circumstance, which may have been fatal to the ultimate decree that was passed in the case.
8. ' As to limitation, the only ground urged before the learned Appellate Judge was that the defendant-PIA was never served with the summons of the Court and came to know of the matter only when execution notice was issued. This was factually incorrect because duly served summons have always been on record as aforementioned. On the legal plane the plea to such effect being demonstrably false the discretionary relief of condonation of delay for the appeal under section 5 of the Limitation Act was liable to be refused on that short ground alone. The appeal, in fact, having also been dismissed as barred by time no question on merit may justly arise for consideration.
9. ' At any rate, regarding merits of the controversy, it is undoubtedly true, as held in F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri PLD 1957 Karachi 832, that before passing an ex parte decree the Court must be satisfied that the case has prima facie been proved on the basis of some evidence.
10. Now what evidence could there be in this case? Mental shock, agony and torture imply a state of mind. Such state of mind can be proved only by a positive assertion of one who experiences the same. That assertion on oath was always there in the verified plaint and was reiterated through the affidavit in ex parte proof. The plaintiff's version also stands to reason because a traveller, who is only on transit at a foreign airport, must experience a a serious set-back when confronted by a dilemma that he, admittedly on transit, can go no further because of the absence of the relevant coupons on his travelling ticket never utilised by him. He had to improvise for another ticket through his business connections when the ground staff of PIA at New Delhi undeniably showed no compunction on his plight. Such facts, therefore, were duly, demonstrated and proved. Now, Mr. A.G.
11. Siddiqui has maintained that there was no physical injury to go with the plaintiff's avowed shock, agony and torture and no damages could be allowed. What does this mean? Is it implied in the argument that the plaintiff should have suffered a collapse or a heart condition to justify his claim for damages arising from the negligence on the part of the PIA staff? I am not aware of any such qualification in law. Such a factor, at best, may be reckoned to aggravate and compound the claim and affect the quantum of damage rather its bare entitlement.
12. Lastly, Mr. A.G. Siddiqui has pointed out that the plaintiff did not act as a prudent man of discretion and intelligence in not checking his ticket when such was handed back to him at the embarkation point namely, Karachi for if he had done that the missing unutilised coupons would have been noticed and necessary remedial steps could have been taken. As to this all that can be said is that such things, as a matter of practice, are never done, the traveller, normally, assuming the relevant staff to be proficient enough to take care of any possibility of such mistakes. Want of care ascribable to the doctrine of a reasonable or prudent man cannot thus be laid at the plaintiff's door. Besides, the least that could be expected from the petitioner-PIA was a considerate and appreciative attitude of its personnel at New Delhi on realising what had come to transpire and of arranging for the necessary continuation of the plaintiff's journey but even that was not done. That could have mitigated the damages but its absence, to say the least, added only insult to injury.
13. ' The trial Court decree which was appropriately affirmed in appeal, therefore, seems to have been rightly passed. The revision is dismissed but, in the circumstances, with no order as to costs.