' SABIHUDDIN AHMED, J.---This appeal is directed against the order of a learned Single Judge granting the respondent's application under Order 9, rule 13, C.P.C. And setting aside an ex parte decree dated 13-11-1989. By way of brief background it may be stated that the appellant was married to the respondent on 11-2-1987 and the agreed dower was Rs,50,000 alongwith the two specified plots in Gulshane-Rahim, Karachi. However, the marriage was terminated by the respondent vide Talaqnama, dated 1-9-1988. The part of the Talaqnama to which the appellant has taken exception may be reproduced as under:-- "Whereas I was married to Mst.Tanvir Amna daughter of Abdul Rashid, on about 11-2-1987 at Karachi. After the marriage, my said wife turned out to be the most selfish and greedy woman and always anxious to extort money from me for her lavish and luxurious life and unsuitable craze for foreign trips. Being unable to meet her unreasonable monetary demands, I have been subjected to a very hostile and harassing treatment by her and recently she has even resorted to blackmailing me by every foul means. In view of 1,er such unbearable acts and conducts, I have come to a considered conclusion that my marital relation with her has been brought to a virtual breaking point with no hope of survival. Consequently I have decided to divorce her as under":-- 2: The appellant's case is that when she applied for mutation of the plots, given to her in dower she was informed that the plots were not owned by the respondents. Moreover, the statement in the Talaqnama was defamatory and lower her reputation in the minds of right thinking people. She accordingly filed a suit for claiming the following reliefs:- "(a) Declaring that the defendant has caused material damage to the person and property of the plaintiff and has also caused mental torture to the plaintiff in addition to the defamation brought to the plaintiff by making imputation against the plaintiff in the Divorce Deed (Annexure-C to the Plaint).
(b) Directing the defendant to pay Rs,50,00,000 (Rupees 50 lacs) damages to the plaintiff.
(c) Granting the costs of this Suit.
(d) Allowing any other appropriate reliefs deemed fit and proper under the circumstances of the case."
3. Apparently summons could not be served personally on the respondent, but, such service was effected through the dispatcher of the office of Chief Conservator of Forest, Hyderabad, a post which the respondent was holding at that) time. Nevertheless it appears that a vakalatnama on behalf of the respondent was filed by one Mr. Shamsher Ahmed Khan, Advocate, on 30-11-1989, who obtained time for filing of written statement. Thereafter, however, no appearance was made nor any written statement filed and after adjourning the matter twice, the Additional Registrar (O.S.) vide order, dated 24-4-1989 debarred the respondent and fixed the matter in Court for final disposal.
4. Affidavit in ex parte proof was filed by one Younus Inayat, attorney of the appellant, who affirmed the contents of the plaint and the suit was decreed by a learned Single Judge vide order, dated 13- 11-1989 which may be reproduced as under:-- "The summons of this Court was served on the defendant but he has failed to appear and file written statement in the case. The plaintiff's attorney Younus Inayat has filed affidavit in ex parte proof in support of the averments made in the plaint. The suit is, therefore, decreed against the defendants as prayed."
5. According to the respondent summons were never served on him and it is only on 26-2-1991 when he received notice of the application for execution of the decree that he became aware of the suit. Accordingly on 24-3-1991 two applications i,e, (1) under section 12(2), C.P.C. And other under Order 9, rule 13, C.P.C., were filed on his behalf on 24-3-2001. The first application was subsequently withdrawn and the second was allowed by the learned Single Judge vide an elaborate order impugned in this appeal.
6. The application was supported by an affidavit of the respondent contending that summons were never served upon him and he never authorised Mr. Shamsher Ahmed Khan to appear and represent him in the suit. He has not denied his signature on the Vakalatnama but has alleged that he had signed a number of Vakalatnamas and given them to Mr. Shamsher Ahmed Khan, who was representing him in litigation between the parties before some other Court. An affidavit has also been filed by Mr. Shamsher Ahmed Khan, admitting that he was not authorised by the respondent to represent him in the suit, that he filed the Vakalatnamas of his own and thereafter having forgotten about the matter did not appear on subsequent dates of hearing. The appellant contested the application primarily alleging that filing of Vakalatnama by the Advocate duly signed by the respondent, was by itself proof of the fact that summons have been served and in any event submission of an application for setting aside the ex parte decree after 15 months, instead of 30 days required buy Article 164 of the Schedule to Limitation Act, was barred buy time and had to be dismissed on this account alone. On the other hand a number of contentions in support of the application were raised on behalf of the respondent which may be briefly summarized as follows:-- "(i) That the respondent had been sued in person and not in official-capacity and service on the dispatcher of his office could not be treated as good service under the law;
(ii) That the affidavit of Mr. Shamsher Khan itself corroborated the respondent's contention to the extent that he had never authorised filing of vakalatnama on his behalf;
(iii) That the ex parte decree was based on no evidence and was invalid on this account;
(iv) That the decree had neither been passed under Order 9, rule 6, nor under Order 17, rule 2, C.P.C., and was therefore, a nullity in law;
(v) That in any event the respondent ought not be penalized for the admitted negligence of his Advocate;
(vi) That in any case the affidavit in ex parte proof filed by the attorney of the appellant could not be treated as evidence particularly for proving the extent of torture and mental shock entitling her to claim damages;
(vii) That law always favours adjudication on merits."
7. The learned Single Judge placed reliance upon the provisions of rules 12, 15, 16, 18, 21 and 23 of Order 5, C.P.C., and came to the conclusion that personal service had to be effected on the respondent. He further held that the person receiving the summons could not be treated as authorised agent of the respondent in terms of Order 3, rule 6, C.P.C. Accordingly he proceeded to hold that service on the respondent had never been validly effected. As regards the appearance of Mr. Shamsher Khan, Advocate, the learned Single Judge referred to a judgment of this Court in Muhammad v. Mir Khan PLD 1987 Kar. 363), wherein it was held that the provisions of Order 5, rule 1, C.P.C. Ought to be read alongwith Order 3, rule 4, C.P.C., which makes it incumbent for a pleader, before he could appear and act on behalf of a party in the case, to file his appointment in Court which should be in writing by the person on whose behalf, he puts in appearance.
8. In view of the peculiar contentions raised by the respondent and after hearing learned counsel for the parties we also deemed it proper to call for the record of the suit filed by the appellant on the Original Side. Indeed there can be no cavil with the observation that the respondent ought to have been personally served, the dispatcher in his office was not his recognized agent for the purpose of Order 3, rule 2, C.P.C., and hence the service'of summons was irregular. Nevertheless with profound respect it appears that the provisions of the second proviso to rule 13 of Order 9, C.P.C., escaped his Lorship's attention. This provision reads as under:-- "Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summon, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. "
9. In the first place we may respectfully observe that the case of Muhammad Khan relied upon by the learned Single Judge was clearly distinguishable. In that case before summons could be served an Advocate appeared in Court and made a statement that he had been authorised by the defendant to appear and act on his behalf. Subsequently adjournments were granted by the Court at the request of such Advocate, but he never filed vakalatnarna and eventually pleaded no instructions, whereupot the suit was decreed ex parte. Setting aside' the decree SaeeduzZaman Siddiqui, J., (as His Lordship then was) proceeded to hold that the appearance and of the Advocate without written authority from his client in terms of Order 3, rule 4, was itself an unauthorized act, and nothing being available on record to show that the defendant had knowledge of the suit or authorized the Advocate to appear on his behalf, an ex parte decree could not be passed without ensuring service of summons.
10. In the instant case,, however, Mr.Shamsher Khan, Advocate did file a Vakalatnama which was admittedly signed by the respondent. It cannot be overlooked that a communication between a client and counsel is privileged and when a counsel files a duly signed Vakalatnama before a Court of law it has to be assumed that he has been authorised to act and appear for his client.
Order 3, rule 4, expressly prohibits a counsel from doing so without filing such Vakalatnama. A counsel would be guilty of the grossest form of professional misconduct if he acts and appears for a party which has not authorised him to do so. Indeed the legal system rests on a certain amount of credibility, which is to be attached to the acts and deeds of membes of the bar whose professional conduct is regulated by law. It is precisely for this reason that Courts have required substantial compliance of the provisions of Order 3, rule 4, as held in Toor Gul v. Mst. Mumtaz Begum (PLD 1972 SC 9) and have declined to take a hypertechnical approach in this context. If litigants were allowed to conveniently denounce the authority by a counsel appointed by them through written instruments, the system of administration of justice could possibly come to a breakdown. Moreover, an Advocate having properly filed a Vakalatnama could not be allowed to denounce his responsibility by conveniently contending that he had appeared without any authorisation. In such cases he must face the consequence of the proceedings for professional misconduct.
' In the instant case we are quite clear in our minds that the dispatcher upon whom summons were served, must have brought the same to the attention of his superior officer and the respondent being the head of the office, definitely acquired information as to such service. The respondent entrusted the matter to Mr. Shamsher Ahmed Khan, Advocate, who was admittedly representing him in other cases between the same parties. The aforesaid Advocate after having initially appeared, chose not to pursue the matter further and apparently his negligence resulted into ex parte proceedings. It is possible that the respondent came to know of such decree only upon receiving summons of the execution application, but realising that negligence of an Advocate would hardly be a ground for setting aside the decree, he chose to file a false affidavit. What is more reprehensible is that to cover up his negligence Mr. Shamsher Ahmad Khan Advocate, also filed an affidavit which, if believe would expose to proceedings for professional misconduct and otherwise for perjury. We are, therefore, not inclined to give any credit to these affidavits. Similarly when Advocate files a proper Vakalatnama signed by his client, in a Court of law, he cannot be allowed to resile from his responsibility. The Courts have granted a certain amount of latitude to members of the Bar and have not insisted on strict technical compliance of Order 3, rule 4, because it is assumed that an Advocate acts with full responsibility while appearing for a client and an irregularity in the form of Vakalatnama is allowed to be rectified subsequently. It, therefore, follows that an Advocate making appearance on behalf of a party without any authorization commits the grossest form of professional misconduct.
11. Viewing the question in the above context of facts and law we are of the humble view, with propounded respect to the learned Single Judge that the excuse put forth by the respondent, was implausible, though we agree that strictly speaking service of summons should have been effected personally and there appear no justification in assuming that the dispatcher in a Government office, after having received summons failed to bring them to the attention of his superiors and the respondent who was the head of the office, was not appraised of the same. It is equally impossible that while the respondent had authorized Mr. Shamsher Ahmed Khan only to appear in certain cases he signed extra vakalatnama and in any event if the latter was not authorised to appear before this Court, he had no reason to take additional responsibility by filing his vakalatnama. The affidavit of the respondent, therefore, cannot be given much credit. Moreover, the conduct of Mr.Shamsher Ahmed Khan, Advocate is all the more reprehensible in as much as he practically admitted to having committed professional misconduct only to oblige a client or cover up his own negligence. What is more likely is that though Mr. Shamsher Ahmed Khan filed the vakalatnama, under the instructions of the respondent he failed to attend the case subsequently and an ex parte decree was passed owning to his negligence. Possibly the appellant was not apprised of the said fact but it is well-settled that negligence of an Advocate can be no ground for setting aside an ex parte decree. We are, therefore, of the opinion that the second proviso to Order 9, rule 13; was attracted in this case.
12. The matter however, does not end here. We have noticed that the appellant did not file a suit for recovery of dower or value of the property given to her in dower, which indeed could have only been filed before a competent Family Court. On the other hand, she has claimed a declaration in terms of clause (a) of the prayer clause reproduced in para. 2 and damages in the sum of Rs,5 million. It is matter of considerable doubt whether the declaration sought could be granted in terms of section 42 of the Specific Relief Act. With respect to damages as well it was necessary to consider whether the imputation made in the talaqnama could be treated as defamatory without evidence of the fact that they were circulated to unconcerned persons or the general public. There is also considerable force in the contention of the learned counsel for the respondent that when damages were claimed on account of mental torture suffered by the plaintiff, it could only be the plaintiff who could give evidence as to the state of her mind entitling her to damages any person or attorney authorized by her could not given such evidence inasmuch as the information communicated to him by the plaintiff could only be treated as heresay.
13. Irrespective of the factum of nonappearance of the respondent it is well-settled that though a Court is entitled to decree the suit without recording evidence when the defendant does not appear despite service of summons, such discretion ought to be exercised judiciously. If authority is needed one may refer to the pronouncement of the Hon'ble Supreme Court in the well-known case of Shamroz Khan v. Muhammad Amin (PLD 1978 SC 89). In the instant case, as discussed above, serious questions as to the maintainability of the suit and the extent of relief allowable under the law, ought to have been examined even if no evidence in rebuttal of the plaintiff's assertion was led. We are constrained to observe that the learned Single Judge did not exercise such discretion judicially, which could only be done upon considering the material on record and the relevant law. Moreover, it is well-settled that law always favours adjudication on merits and having examined the suit file we have noticed that pursuant to the impugned order written statement has been filed, issues settled and the suit is ripe for regular hearing. In the circumstances we find it unconscionable to allow the ex parte decree to stand.
13. In view of the above, though for reasons somewhat different from those recorded by the learned Single Judge, we would refrain from interfering with the impugned order and dismiss this appeal.
There shall be no order as to costs.