' Through this Revision Application, the applicants have called in question the legality of the order, dated 12-9-1998 passed by the learned Additional District Judge, Malir Karachi in Civil Miscellaneous Appeal No, Nil of 1998 whereby the learned Judge while dismissing an application under section 5 of the Limitation Act 1908, declined to condone the delay in filing the Civil Miscellaneous Appeal, and eventually dismissed the appeal being barred by time.
2.. The facts of the case relevant for the disposal of this appeal are that the respondents were granted allotment of plot. No, 74-75 in Edible Oil and Molasses area for storage of edible oil by the applicants on certain terms and conditions in the year 1992 which was subsequently re-allocated.
It appears that some disputes arose with regard to re-allotment and other terms and conditions which gave rise to the tiling of Suit No 1219 of 1993 by the respondents in the Court of 1st Senior Civil Judge, Karachi East. The applicants appeared and filed written statement and counter affidavit to the injunction application. However, during the pendency of the suit Malir District was created and eventually the suit was transferred to the Court of Senior Civil Judge, Malir somewhere in 1994 by administrative orders. Since the Applicants/Defendants failed to appear before the transferee Court inspite of publication of notice in newspaper, the suit was decreed ex parte, vide judgment and decree, dated 12-8-1996.
' After the passing of the judgment and decree. The respondents appear to have tiled an Execution Application notice of which was served upon the applicants. The applicants filed an application under Order IX, Rule 13 read with section 151, C.P.C. Before the learned transferee/trial Court and the said application, after being heard, was dismissed.
4. The applicants then filed the aforesaid Civil Miscellaneous Appeal and so also an application under section 5 of the Limitation Act for condonation of delay in filing the appeal, Learned Appellate Court after hearing both the parties, dismissed the application for condonation of delay and simultaneously dismissed the civil miscellaneous appeal holding the same to be barred by limitation.
5. I have heard Mr. Muhammad Aril Khan, Advocate for applicants and Mr. Z.A. Malik, Advocate for the respondents.
6. Learned counsel for the applicants contended that after the transfer of the suit, the applicants who were the defendants before the trial Court were entitled to the Court motion notice but no notice was served upon them. To further elaborate his arguments, he contended that the publication of the notice was made without observing the formalities as were necessary for the substituted service under the provisions of the Order V, rule 20, C.P.C. He further submitted that the application moved on behalf of the applicants under Order IX, Rule 13, C.P.C. Was dismissed by the learned trial Court in an arbitrary manner without considering the circumstances. Learned counsel next argued that the civil miscellaneous Appeal could not be tiled in time because the applicants were not .Informed about the disposal of their application under Order IX, Rule 13, C.P.C. By the Reader of the trial Court. He submitted that there was no intentional delay in tiling the civil miscellaneous appeal, however, as an abundant caution, application under section 5 of the Limitation Act was tiled. He urged that the delay was not attributable to the applicants; therefore, the learned appellate Court should have condoned the delay and ought to have heard the appeal on merits.
8. In support of the above contentions following ease-law was relied upon:- ' 1996 SCMR 596, 1991. CLC, 291, PLD 1988 Pesh. 33 and PLD 1985 Lah .327.
9. . On the other hand, learned counsel for the respondent contended that the fact about the transfer of suit to the concerned Court of Malir District was in the knowledge of the applicants, but they intentionally avoided. In any case, it was further contended that in view of the provisions contained under section 24-A, C.P.C. It was obligatory on the part of the aPplicants/defendants to get themselves informed about the future date of hearing and the Court where the case had been transferred. Even then, a notice was published on the newspaper, Daily NawaiWaqt, dated 19-5- 1996 but nobody appeared on behalf of the applicants. Learned counsel contended that the application under Order IX. Rule 13, C.P.C. Was rightly dismissed as the same was not maintainable.
He also vehemently denied that the applicants were not in knowledge of the dismissal of their application under Order IX, Rule 13, C.P.C. By the trial Court. Learned counsel for the respondent supports -the impugned order on the ground that the application for condonation of dely was rightly dismissed as the same was without force.- In support of his contention learned counsel for.The respondent has relied upon.The following case-law: ' 1987 SCMR 150 and PLD 1995 SC 396.
10. I have considered the arguments advanced and the law cited at the bar, and also examined the record.
11. From the contentions raised by the parties, it is evidently clear that the matter requires consideration with regard to the applicability of the provisions contained under section 24-A, C.P.C.
And the provisions of substituted service as postulated under Order V, Rule 20, C.P.C.
12. With regard to obligation of the Court as well as the parties in respect of cases transferred from one Court to other Court, the law has been settled by the Honourable Supreme Court in the case titled S. Irshad Hussain and another v. Azizullah Khan and 3 others 1987 SCMR 150 as relied upon by the counsel for the respondents.
13. The Apex Court while discussing the background of the-Civil Procedure Code, was pleased to incorporate the extract from the report of the Law Reforms Commission which reads as under:--- "In the event of transfer of cases from one Court to another also, occasionally the parties have to be summoned afresh by the transferee Court for a fresh date. This materially obstructs the progress of the cases. Transfer of cases may take place in two ways. A transfer may be ordered by a higher Court-on a petition. In that event, the transferring Court should itself fix a date for the appearance of the parties only before the transferee Court and this should invariably be a very short date. The parties would then appear before the transferee Court and take will be convenient to examine the facts of the case as borne out from the record.
16. From the perusal of the case diary it is evident that the matter was fixed before the learned 1st Senior Civil Judge, Karachi East on 22-9-1994 when the same was adjourned to 19-10-1994 in presence of the Advocates for the parties. It seems that in the meantime the case was transferred to the learned District Judge Malir vide order, dated 6-10-1994 of learned District Judge (East)
Karachi on administrative grounds. It is further revealed from the diary sheet that the first diary of the transferee Court was dated 24-10-1994. On 25-10-1994 only the plaintiff appeared and the suit was adjourned to 8-11-1994. Orders were passed for issuance of Court motion notice and the matter was adjourned to 20-11-1994. Subsequently also orders were repeated for issuance of Court motion notices. However, finally on the application moved by the plaintiff, the learned trial Court passed orders for publication of Court motion notice in order to procure the attendance of the defendants/applicants. The notice was published in the daily Nawai-Waqt, dated 19-5-1996 the actual date for which it would be convenient for that Court to take up the case. Where the transfer of a case is ordered for administrative reasons, the parties may not be present when the order is passed. In such a case, again, the parties should be placed under a legal obligation to appear in the Court in which the case was pending, on the date already fixed there. The Court would have been informed of the administrative order, transferring the case to another Court. The original Court should, therefore, keep a note of the particulars of the case and of the transferee Court so that when the parties appear, they should be intimated of the order of transfer. This Court should direct the parties to appear before the transferee Court, either the same day, if the Court is located at that very place, or after a short interval, if it is situate elsewhere. These considerations would also be germane to work in criminal Courts and may well apply to them."
14. Thus from the above, it emerges that on account of the transfer by administrative order the original Court is required to keep a note of the particulars of the case and of the transferee Court, so that when the parties appear, they should be intimated of the order of transfer. It has also been made obligatory on the original Court to direct the parties to appear before the transferee Court.
15. In order to appreciate as to whether the compliance of the obligation and duty as having been cast upon the original Court and/or the transferee Court was made and the above noted dictum was properly followed, it
17. Foregoing facts clearly reveal that there is absolutely nothing on the record to show that the original Court viz. Learned 1st Senior Civil Judge, Karachi East either kept a note of the particulars of a case, or informed the parties about the transferee Court. The obligation with regard to directing the applicants/defendants to appear before the transferee Court was also apparently not discharged.
18. The only mode whereby the applicants/defendants are claimed to have been informed or served by way of Court motion notice was, thorough substituted service as provided under Order V, Rule 20, C.P.C.
19. It is a settled principle of law that unless all efforts to effect the service in the ordinary manner are verified to have been failed, substitute service cannot be resorted to. There is a series of authorities on this proposition of law. However, the reference can be had to the case-law reported in 2001 SCMR 99 titled Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan and 1996 SCMR 1703 titled Haji Akbar and others v. Gul Baran and 7 others.
20. Evidently there is only one Court motion notice, dated 24-10-1995 on the record, and that too returned unserved containing the endorsement of the Bailiff that he went to the Port Qasim Authorities on 22-11-1995 at 4 O' Clock but the Dispatch Clerk was not available, hence service could not be effected. No further attempt was made to serve the applicants/defendants till the orders for publication were passed by the learned trial Judge on an application moved by the plaintiff/respondent under Order V, Rule 20, C.P.C. I have no slightest doubt in holding that the orders for substitute service were passed in a mechanical fashion and without proper application of mind. Such orders were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile. In such circumstances the substituted service being in violation of the law and the rule laid down by the Honourable Supreme Court as referred above could not be deemed to be valid service.
21. In view of the above facts, I am of the considered view that the provisions of section 24-A, C.P.C.
Were not complied with. Even then, I was not convinced to grant relief to the applicants as claimed by them, on this count alone. The reason being that there was undoubtedly gross negligence on the part of the applicants. The fact that the applicant is not an individual but is one of the largest organizations in the public sector, cannot be overlooked yet not a single Officer cared to keep track of the proceedings.. It is one of the ancient maxims of law that the law favours vigilant and not, indolent. The Apex Court in the case reported in PLD 2001 SC 49 titled Abdul Hamid and 3 others v.
Syed Abdul Qadir and others was pleased to hold that a party who knocks the door of the Court is expected to be diligent and vigilant to keep track of proceedings and not to wait for notice of the Court.
22. There are yet other aspects of the case which require to be dealt with.
23. In consequence of the orders of the learned trial ,Court, the notice was published in the daily Nawai-Waqt dated 19-5-1996 for appearance of the applicants/defendants, but there was no appearance. Matter was put off to 11-7-1996 when the issues were settled by the Court and the suit was fixed for evidence on 23-7-1996 with the direction for submission of the list of witnesses and documents within 7 days. On 23-7-1996 the plaintiff appears to have filed affidavit in ex parte proof and the matter was put off to 28-7-1996 for judgment. Eventually the judgment came to be passed on 12-8-1996 and decree was prepared on the same day.
24. After obtaining the decree, the plaintiff/respondent filed execution, and the defendant/applicant filed application under Order IX Rule 13, C.P.C. Read with section 151, C.P.C.
From the close scrutiny of the file, it transpired that the affidavit in ex parte proof was sworn by the plaintiff/respondent on 8-7-1996, though till then no orders were passed by the learned trial Court for production of evidence. In fact, the matter was fixed on 11-7-1996, when the same was put off to 23-7-1996 for plaintiff's evidence. It is quite strange that the affidavit of the plaintiff which was sworn on 8-7-1996 in para No,12 speaks of proceeding the matter ex parte against the Defendants, as if the plaintiff was anticipating everything in his favour. The affidavit in ex parte proof does not bear the initials of the learned Judge. Bare reading of the judgment shows that the same has been written in a mechanical manner. Though the judgment is silent about the date of framing of issues, yet the scrutiny of record reveals that the issues were settled on 11-7-1996, whereas the affidavit in ex parte proof was sworn on 8-7-1996 i.e, 3 days before the framing of the issues. It has been mentioned in the decree that the defence of the defendants was struck off vide order ('?) and the matter was ordered to proceed ex parte, but in fact there is no such order, on the record.
25. Learned Trial Judge obviously thought that in ex parte proceedings that much of caution is not necessary as in contested suits. This is not a correct view and if there is any such impression, it must be rectified. When ex parte proceedings are taken, it is the duty of the Court to consider the interest of the absent defendant, and the record' should bear the indication that the matter was properly considered and the Court applied its mind to the facts of the case.
26. The question of dealing with an ex parte case was considered in the case of Amar Nath reported in 15 W.R. 503 wherein it was observed that in dealing with a suit ex parte, a Court is bound to see that the plaintiff's case is prima facie proved, the mere absence of the defendant does not itself justify the presumption that the plaintiff's case is true.
' In the case of Deo Nandan v. Janki Singh, 44 Ca1.573 (PC) their lordships of the Privy Council observed as under:--- "But their lordships wish it to be distinctly understood that where an appeal is heard ex parte, it is the duty of the counsel to bring to the notice of the Board adverse as well as favourable authorities."
' The application moved by the applicants Under Order IX Rule 13, C.P.C. Was dismissed on the ground that the Court motion notice was published, and that it was obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred.
27. From perusal of the above facts, it is abundantly clear that while proceeding with the suit, glaring errors and illegalities were committed by the learned Trial Judge, and the judgment was passed in an arbitrary and fanciful manner which resulted in miscarriage of justice.
28. Learned trial Court, while hearing the application under O.IX, Rule 13, C.P.C. Did not take pains to look into the circumstances, under which the case was proceeded and an ex parte judgment and decree was passed.
29. The Civil Miscellaneous Appeal questioning the judgment and decree came to be dismissed by the learned Appellate Court, merely on the ground that the same was barred by time, though the learned A.D.J. Malir observed that the suit was decreed ex parte after transfer and the question of the revenue of the appellant was involved, "and on merits appellants have arguable case".
30. In view of the fact that I have arrived at the conclusion that the judgment and decree being perverse have resulted in gross injustice, the same is not sustainable, all the orders passed subsequent thereto have been rendered in valid and untenable. Reliance may be placed on Yousuf Ali's case reported in PLD 1958 SC (Pak.) 104.
31. Accordingly, the application under Order IX, Rule 13, C.P.C. Moved by the Applicants/Defendants stands allowed, the Judgment and Decree, dated 12-8-1996 passed by the learned trial Court are set aside. The trial Court is directed to proceed with the suit from the stage of framing of the issues, and conclude the same preferably within a period of six months.
32. Since the Applicants have been guilty of gross negligence, as observed by me in the preceding paras, cost of Rs,25,000 is imposed upon the Applicants. This order will be subject to the costs payable to the Plaintiff within four weeks of the passing of this judgment. The amount of costs will, however, be recoverable from the salary, dues etc. Of the officer/officers of the Applicant, due to whose negligence the ex parte orders were passed. Needless to mention that the Port Qasim Authority will not be precluded from taking any departmental action against the delinquent officials in accordance with the service rule.
' Let a copy of this order be sent to the Secretary Communications, Government of Pakistan and the Chairman Port Qasim Authority.
' This Revision Application stands allowed in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.