' A writ petitioner, through this application, seeks restoration of his Writ Petition No, 576 of 1972, which was dismissed by me at Bahawalpur Circuit on 1-7-75, with the following ordert- "None has appeared for the petitioner. The statement made on oath by respondent No, 2 shows that the petitioner is aware of today's hearing. He has not made any arrangements for appearance through counsel either. None has appeared for the petitioner for the last several hearings. This petition is dismissed for non-prosecution, There shall be no order as to costs."
' Before passing the above order I had recorded the statement made on oath,. Of Ghulam Murtaza respondent. It reads as follows:- "I state it on oath that Mussarrat Ali Khan petitioner and his agent know about the hearing of this petition today. Earlier too, the petitioner absented and also did not make alternative arrangement for his representation because he wants to take undue advantage of the stay order passed by this Court."
2. I remember, during that Circuit, it was noticed that some cases were fixed without completion. I had, therefore, directed the office there that note should be put up showing the details of notices/service. In this case also, a note was put up by the office. It is on page 32 of the file, and reads as follows:- "The matter was filed at Lahore on 2-5-1972 and being admitted for hearing on 12-6.1972 maintaining of status quo was ordered. The case having been transferred to this Circuit on 6-4- 1973 it was directed to be fixed in the next Circuit as per order passed on 24-5-1974 on the respondent's application for accelerated hearing. In compliance thereof the matter was listed for 25-6-74 but it was adjourned as prayed by petitioner's counsel vide his telegram dated 18-6-1974.
Again it was set down for hearing on 4-11-1974 and the parties not having been served the matter remained incomplete and could not be laid before the Court Having again been fixed for 2-12-1974 it again became postponed as the petitioner and his counsel were not served. In January, 1975 too the petitioner and his counsel were not served and the case became incomplete. It was fixed for 21-2-1975 but adjourned as the petitioner's counsel had applied for its transfer to Lahore. Fixation of this matter remained in abeyance for two months awaiting disposal of the said transfer petition.
The application having been rejected, the case was again listed for 20-5-1975 As notice issued to Mr. Ijaz Hussain Batalvi, Advocate was not acknowledged the matter was again adjourned and it was listed for 1-7-1975. Notice for this date was sent to the petitioner, his counsel and his representative at Khanpur Railway Station. None of the three has been served. The petitioner and his counsel are reported to be out of Lahore, and the representative of Mussarrat Ali Khan is reported to be avoiding service and has even refused to take delivery of notice. The respondent is represented by Mr. Sh. Inayat All and Mr. M. Munir Khan, Advocates.
Submitted. (Sd.) Clerk C. B. 30-6-75."
' It has been my practice to check up such like office notes with the actual record. It was on the perusal of the record which confirmed the statement of the respondent that I dismissed the petition, for non-prosecution. The note, in fact, did not represent all the details of the notices/service in the case. The writ petition was fixed for hearing (except on 29-9-72 -Farzi) as is apparent from the notings including those on reverse of page 12 of the file, on the following dates:- ' On some of these dates, the case was not put up before the Court by the office on account of earlier deletion, mostly because of non-service of or on the request from the petitioner/his counsel.
The order-sheet shows that after the admission of the writ petition in June, 1972 till 1-7-75, for about three years, neither the petitioner nor his counsel appeared on any of the dates. It is an admitted position that the petitioner was taking advantage of the stay order granted by this Court even beyond the initial period of ,contract. The respondent, however, had been making complaints and efforts for securing the attendance of the petitioner. He had written applications also, in this behalf giving several alternative addresses of the petitioner on which he could be served. Such applications/addresses are on pages 30 and 31 c f Part A and 36 of Part B of the file. It may also be noted that even though the petitioner and his counsel, it appears from the record, were not formally served for various reasons mentioned on the notices, on one or two occasions the petitioner/learned counsel seemed to be aware of certain dates of hearing (presumably of course, on instructions from his client). He sent telegrams for adjournments on 18-6-1973, 30-11-1974 and 13-6-1975 (pages 23, 62 and 75 of Part 'B'). Petitioner himself made similar request on 15-6-74 (page 69, Part B) showing that he knew that case was fixed for 25.6-74.
3 With the above background, it is necessary here to give the details of the various efforts made by the office to get the petitioner served, whose on duty it was to remain vigilant and in touch with the progress of his petition, in which he had obtained a stay order. They are given in the Schedule marked 'A' to this judgment. It is necessary to mention here that copies of some of the notices are not on record, but there is intrinsic evidence that for all the dates notices were sent to the petitioner and/or his =learned counsel to attend the proceedings.
4. Learned counsel for the applicant has raised the following contentions:-
(1) that the non-appearance of the petitioner was not intentional;
(ii) that the place of residence of the petitioner was the same as given in the address in the heading of the writ petition;
(iii) that the notices for 1.7-75 were not sent on proper address as given in the writ petition, i.e , through Aslam Industries, Kbanpur;
(iv) that Mushtaq Ahmad, the so-called agent, was not (legally) the agent of the petitioner;
(v) that, in any case, notices were not served either on the petitioner or on the said Mushtaq Ahmad;
(vi) that on failure of service of the petitioner through ordinary means, the High Court should have served him through substituted means;
(vii) that the petitioner has always been vigilant in pursuing his petition;
(viii) that the restoration application is within limitation from the date of knowledge; and lastly;
(ix) that sufficient cause being a question of fact, the policy of law is hearing on merits rather than dismissal for non-prosecution.
5. Learned counsel for the respondent also argued the case with .Equal vehemence. His contentions in addition to the preliminary objection Rua bar of limitation are:
(I) that on account of the wrong address given by the petitioner in the writ petition itself-it was so reported by the Serving Agencies, namely, that the address was wrong; when recourse was made to his business premises, namely. The railway station, it was reported that the petitioner was resident of Lahore;
(ii) that on some dates, even though formally speaking the petitioner was not served, he had knowledge of the dates of hearing. For example, when the case was fixed for 25-6.74, the petitioner sent an application to the Additional Registrar, Bahawalpur Circuit, for keeping the a rit petition pending till the decision of the transfer application filed by him at Lahore;
(iii) that in June, 1975, the respondent through an application gave various addresses on which the writ petitioner could be served. They included his address at Lshore, through his agent Mushtaq Ahmed, through his lawyer and through the Divisional Superintendent, Railways (notices on all these addresses were sent for 1-7-75). Despite the postman having made his repeated visits, the lawyer's office refused to receive the notice in his absence, the inmates of the writ petitioner's house in Muslim Town, Lahore, also failed to receive the notice despite several visits by the postman and his agent at the disputed Railway Vending Contract, Kbanpur, on seeing the postman, disappeared and thus refused to receive the registered letter. The Divisional Superintendent, however, returned the letter to the sender for correction of the address. It may be noted here that during the hearing of this application, Mussarrat Ali petitioner attended this Court in person. He did not deny that 30-Almusarrat, Muslim Town, Lahore is his family house nor did he assert that he never resided therein. Tbis attitude is in line with the report of the postman which does not show that Musarrat All was non-resident of Al-Musarrat. Every time that he visited the place the inmates of the house told him that the petitioner was not in the house and had gone to some other place in connection with his business;
(iv) that the law with regard to procedural matters in writ petitions is contained in Civil Procedure Code, as held in Hussain Bakhsh v. Settlemert Commissioner, Rawalpindi and others PLD 1970 SC 1.
Order VII, rule 19, added by Law Reforms Ordinance required the petitioner to give correct address at which service of notices, etc. May be effected on him and if there was change of address he was required under rule 24 to file a fresh address. In this case the petitioner, as it appears from the various reports, initially give wrong address in the writ petition and when he was not served on that address, he did not file a fresh address. He cannot take advantage of his own failure in this behalf.
In any ease, rule 21 would be attracted and the petitioner shall be liable to have his petition rejected by the Court suo motu or on the application of any party; (v)rule 22 of Order VII was also relied upon - sub-rule (1) thereof was not. Strictly speaking, attracted because on the address given by the petitioner, of Khanpur, there was no question of his agent or adult male member of his family residing there on whom the notice would be served; therefore, there was no use pasting the notice on that house (Aslam Industries). Sub-rule (2) however would be applicable, in that, if on the date fixed the petitioner was not present, for the next date the notice would be sent to the petitioner on the same address by registered post and this course shall be deemed to be as effectual as if the notice, summons or other process had been personally served. In this case, after the initial failure to serve the petitioner at his address of Aslam Industries. Khanpur, repeated registered notices were sent on that address and he would be deemed to have been served, but he never appeared;
(vi) under rule 25, notwithstanding the procedure prescribed in the earlier rules, nothing therein shall prevent the Court from directing the service of a notice in any other manner if, for any reason, it thinks fit to do so. In this case, it was contended, the Court on application of the respondent sent the notices on different addresses which, as noted above, were not incorrect. The petitioner had definite connection with those addresses-his place of business, his lawyer's office and his family house; therefore, registered letters sent at those addresses should be treated as sufficient service;
(vii) that sending of the registered notice at the office address of the learned counsel of the petitioner would be sufficient service under rule 23 of Order VII read with Order III, rule 5;
(viii) that under Order V, rule 10-A the endorsement of refusal by a postal employee would be prima facie proof of the refusal of the notice;
(ix) that under Order V, rule 13, service on any manager or agent, who, at the time of service, personally carries on such business or works for the party concerned shall be deemed to be good service. In this case, the postman had endorsed that Mushtaq Ahmad (being such an agent of the petitioner) had practically refused to receive the notice; (x)Lastly, it was contended that notwithstanding the technical failure of the postal authorities to formally serve the petitioner, if it was otherwise proved to the satisfaction of the Court that the petitioner knew about the proceedings, he could not complain about non-service through routine measures.
6. The writ petition was dismissed by me for non-prosecution, as noted in the order dated 1-7-75, on account of following reasons t-
(a) that the petitioner had not appeared;
(8) that the statement made on oath by the respondent showed that the petitioner was aware of hearing on that date;
(c) that he had not made any arrangements for appearance through counsel either; and (d)that none had appeared for the petitioner for the last several hearings.
' In the statement made by the respondent on oath, which was relied upon in the order, it was stated by him that- (a)Mussarrat Ali Khan petitioner and his agent knew about the hearing of the petition on 1-7-75; (b)earlier, too, the petitioner had absented and did not make alternative arrangements for his representation; and
(c) the above conduct of the petitioner was motivated by the fact that he wanted to take undue advantage of the stay order passed by this Court.
' As already noted, I had passed the order after the perusal of the record.
' It needs to be seen whether the considerations which weighed with the Court on 1-7-75 were not then available and/or whether the respondent had made a false statement with regard to the knowledge of the petitioner about the bearing on 1-7-75 and further that the petitioner was avoiding appearance because he wanted to take undue advantage of the stay order.
7. The interim order passed in the writ petition was unqualified. On 4-5-72 it was directed that "the operation of the impugned order is suspended meanwhile". On the admission of the writ petition on 19-6-72 it was directed that "the operation of the impugned order shall continue to remain suspended meanwhile". This order was never modified and remained in operation till the last day I.e., 1-7-75 when the writ petition was dismissed for non-prosecution. In other words, for more than three years, the "impugned order" remained suspended with consequential benefit to the petitioner. It is interesting to note that on 15-9-75, during the hearing of an application for maintenance of status quo, it was formally revealed for the first time by the brother of the petitioner, who was present at the time of hearing, that "the vending contract in connection with which the subject-matter of dispute in the main writ petition arose was from 1971 to 1973. According to him, it was continued for some time on monthly extensions. Moreover, it might have been continued due to the proceedings in the writ petition." Thus, it is clear that the writ petition which was filed in 1972 in order to remove an impediment qua the vending contract which was with the petitioner from 1971 to 1973, became an instrument of extension of the said contract beyond even 1973, presumably, on account of the interim suspension orders passed by this Court on 4-5-72 and 19-6-72, Thus, without achieving the success in the writ petition and during its pendency, the petitioner was, for all practical purposes, making undue use beyond 1973 of the interim order passed by this Court in the writ petition -- in other words, till 1st of July, 1975 when the writ petition was dismissed for non-prosecution, the petitioner had for practical purposes gained advantage through, as put by the respondent in his statement on oath, stay order issued by this Court. This statement in the above context, therefore, was not untrue.
8. If, as would be presently shown, the petitioner had avoided appearance in the Court despite knowledge of various dates, a legitimate presumption can be raised that he wanted to take further undue advantage of the interim order. This could be a strong motive for him to avoid formal service and thus, on this excuse, to avoid appearance. In the affidavits submitted in support of the restoration application, the statement made by the respondent on oath on 1-7-75 that the agent of the petitioner knew about the date of hearing being 1-7-75 has not been controverted. This statement on oath finds support from the endorsement by the postman that Mushtaq Ahmed, the representative of the petitioner at his vending contract, Khanpur, used to disappear on seeing the postman who paid eight visits for service on the agent. Affidavit of Mushtaq Ahmad has not been filed that he was not acting as agent of the petitioner. It is not the case of the petitioner that he personally runs the vending contract at Khanpur. There is no counter version that any one else other than Mushtaq Ahmad acts as his representative at that place. The conduct of Mushtaq Ahmad as reported by the postman in his endorsement runs in line with that of the petitioner himself. His repeated avoidance of acceptance of notice despite many visits by the postman corroborates the statement of the respondent that be knew about the proceedings in connection with which he was to be served through the registered post, therefore, be avoided the service.
Mushtaq Ahmad had no personal interest of his own to avoid service. He was acting as representative of the petitioner. It can be legitimately presumed that he was so acting at the instance of his master. In any case, the corroboration of the statement of the respondent need not be in minor details. The above-noted circumstances materially support his deposition that the petitioner and his agent knew about the date of hearing as 1-7-1975.
9. The resume of the attempts at service on various dates is given in the schedule attached with this judgment which shows thirty-eight visit of the process-serving agencies, including postal, to serve the petitioner in the writ petition. This resume is an eye-opener how a party who is gaining advantage under a stay order issued by a Court can avoid formal service notwithstanding the best efforts by the Court as also the other party.
10. It has been indicated that on one or too hearings, despite the .4 fact that on paper, formally, the petitioner and/or his counsel were not served, they were nonetheless aware of the relevant dates of hearing-prayers were made (some through telegrams) for adjournment/keeping the petition pending. If the petitioner could be aware of some dates of hearing notwithstanding the absence of formal service, it cannot be said that it was impossible for him to have knowledge of the hearing having been fixed on 1-7-75 without formal service This circumstance also corroborates the statement of the respondent.
11. Something which, at least, is not usual has taken place is this case. If there is no instruction of client, the office of an Advocate does not refuse receipt of postal articles sent in the name of the counsel, at the address of his office, in ordinary routine. In this case, the postal endorsement shows that the postman visited the office of the learned counsel for the petitioner three times for delivering the registered letter addressed to him (learned counsel). It pertained to the notice for 1- 7-1975. Each time the office refused to receive the postal article on the mere reply that the learned counsel was out of Lahore. It was not at all the ease of the petitioner nor the learned counsel stated in this behalf that he had himself instructed his office never to receive any postal article in his absence. And if there was instruction, it would be of the petitioner and for an unexplained purpose.
This is not all. On earlier occasions as well, for the hearings of 20-1-75 and 21-2-75, the office of the learned counsel declined to receive the registered articles addressed to him for the reason that the learned counsel had gone to Rawalpindi without leaving any address. On these two occasions, the postman had made four visits to the office of the learned counsel. The returned postal registered letters, which are on the file, show on their face that they were sent by the Lahore High Court, Bahawalpur Circuit. They are addressed directly to the learned counsel. The response of the office of the learned counsel, to say the least, indicated absence of cooperation, which might not have been without instructions of the petitioner.
12. The endorsements by the postal authorities on innumerable visits at the family piece of residence of the petitioner, Le., Al-Mussarrat 30-Muslim Town, Lahore, are of similar nature. For example, qua if-6-75 and 1-7-75, the postman made eleven visits in all and most of the endorsements show the response that the addressee had gone to some other place in connection with his business without leaving behind any address. These letters also clearly show that they had been received from the Bahawalpur Registry of the Lahore High Court.
13. The office of the learned counsel as also the inmates of Al-Musarrat must have become aware of the fact that the letters related to some matter in that Registry. It has not been stated even during the arguments the Mussarrat All had any other case at Bahawalpur Circuit. It would be legitimate to presume that as an ordinary diligent person, on return otherwise coming to know about the postal letters, the petitioner would have certainly made probes to inquire about the notices and would hay become aware of the date of hearing. This circumstance also corroborate the statement made by the respondent.
14. It might be mentioned hero that Mr. Kabir Ahmad Butt, Clerk of the learned counsel, has filed an a davit with this application to the effect that no registered letter notifying the chambers of his learned Advocate that the above-noted case was being fixed for 1-7-75 was received between 13.6-75 and 1-7-75. It has not at all been denied in the said affidavit that the postman did not visit the office of the learned counsel between that periods so as to deliver a registered letter. 'This technical denial of the "receipt" of the notice does not controvert the endorsements made by the postman qua the visits made on 16-6-75; 17-6-75 and (return) on 25-e-75 that delivery of letter could not be effected because as endorsed thereon by Munshi Ghulam Sarwar, the learned counsel had gone out of Lahore. It may be mentioned here that it is not the case of Mr. Butt that Munshi Ghulsm Sarwar was an unconcerned person or that the chambers of the learned counsel were closed during the relevant days. Under section 3(c) of the Post Office Act, delivery of the postal article at the house; office; or to the servant; or agent; or any other person considered to be authorised to receive postal articles in usual manner, is delivery to the addressee. It might be of advantage for the offices of the Advocates to keep the letter and spirit of this law and rule 5 of Order C. P. C. In view when declining or refusing to receive a notice which, on its face, is addressed by a Court to the learned counsel and/ or his client but at his address. This will help in avoiding unnecessary delay and would be in spirit of cooperation with the administration of D justice. This would also apply mutatis mutandis to litigant public in general as also particular to the petitioner, his servant/agent (Mushtaq Ahmad) and his family members who all declined/refused to receive registered notices addressed to him.
15. The last but not the least is the question of the responsibility of the petitioner in pursuing the matter which had been instituted by himself in the High Court. If it were a case of non-service and consequential nonappearance of a respondent (defendant), the considerations might have been different. The spirit of the law about service as contained in the Civil Procedure Code is that a party instituting the proceedings has to be vigilant about its progress. It is not the duty of the. Court officials to run after such a party for attendance or arranging representation. The petitioner, it is en established position, was aware of some dates when prayers were made telegraphically and otherwise for postponement of the hearing. Every time that such postponement took place, it was the duty of the petitioner to make inquiries about the next date. The date prior to 1-7-75 when the petition was dismissed for non-prosecution was 16-6-75. The petitioner was aware of it The telegram sent by his learned counsel on 13-6-75 at page 75 is positive proof of his knowledge about the said date. It might be mentioned here that even with regard thereto the postman had paid six visits to Al-Musarrat, the family residence of the petitioner, and every time the reply was that he had gone to some other city without leaving any address. Such like replies from his house did not necessarily mean that he was unaware of the contents of the notice. He had obviously known about the date-16-6-75. A formal request through the learned counsel was made for adjournment. It was his duty thereafter, and the learned counsel could advise him that this being an old case, in which stay order had been issued, the case might be fined in the next Circuit 1.e , in the next month and that he should remain vigilant. If even the most ordinary diligence would have been shown the petitioner would have become aware of the next date being 1-7-75. It is also necessary to point out that the paying of sixteen visits by the postman at three different places where the notices could be left was not something ordinary. The inmates of the places must have become aware of the Bahawalpur Registry truing level best to inform the petitioner about the date of hearing. Thus, about 1-7-75, on the one hand there is deliberate failure of the petitioner to make ordinary proper inquiries about the progress of his case, on the other there is failure to receive the registered notices by the aforementioned inmates and avoidance/refusal by the agent. All circumstances show that what the respondent stated on oath on 1-7-75 was not wrong. It is not at all the intention of the law that in the circumstances as in this case, when the Court was satisfied that the petitioner was aware of th date of hearing (without accepting service in a formal manner) the case should he further adjourned for his technical service. The plaintiff in a civil matter is supposed to keep vigilance and inquire about the date of hearing. And if he is aware of the date without formal service, he canno make an excuse of that non-appearance. For the same reasons, on statement having been made on oath before the Court which as discussed above has full support of unimpeachable circumstances, it was unnecessary to have resort to substituted service through citation in the newspapers. It would have further delayed the case. It needs to be re ratted that during the arguments it was not at all canvassed at the bar that if the petitioner had knowledge of the date of hearing, notwithstanding the same, it was the duty of the Court to serve him formally and in absence thereof the proceedings would suffer from any infirmity.
16. After reconsideration of the entire matter, I still feel satisfied that the statement made by the respondent on oath before me on 1-7-75 was correct and that being so, there is no justification for recalling the said order. The petitioner has otherwise also not shown sufficient cause for restoration of the writ petition. The conduct exhibited by him is not such as to exercise discretion in his favour.
17. As I have not believed the petitioner's version that he was unaware of the date being 1-7-75, it is not possible to believe his bare statement, without any tangible support from reliable material, that he gained the knowledge of the order dated 1-7-75 at late stage. The assertion is also vague and general and cannot be accepted. The restoration application is, for these reasons, also, liable to be dismissed as time-barred.
18. These are the reasons for which I dismissed the restoration application by short order passed on 11-11-75 - "for reasons to be recorded separately, this restoration application is dismissed. There shall be no order as to costs."
19. Before parting with this order I deem it necessary to direct the office to place this case before the learned Chief Justice for the consideration of the question and adoption of means to prevent the delays, as happened in this case, in matters instituted in the High Court.