Through this appeal, appellant has called in question the judgment dated 1-9-1999 and the decree dated 3-9-1999 passed by learned District Judge, Karachi East whereby, the suit of respondent filed against appellant was decreed in the sum of Rs,45,000 with profit at the existing bank rate till realization.
2. Relevant facts for disposal of this appeal are that respondent is a (Karachi based) manufacturer and distributor of Homoeopathic and Herbal medicines, which were supplied to appellant at his request vide bill dated 21-11-1996. Appellant (Peshawar based) issued in favour of respondent three post-dated cheques dated 11-2-1997, 11-3-1997 and 11-4-1997 each for Rs,15,000. Said cheques were however dishonoured therefore, respondent after giving notice to appellant, instituted a suit on 14- 5-1997 under Order 37, C.P.C. For recovery of Rs .45 .000.
3. As per judgment, appellant was served, his application for leave to defend was dismissed on 25- 8-1998 and the documents, dishonoured cheques and endorsement of Bank filed by respondent having gone unrebutted and unchallenged, proved latter's claim hence suit filed by him was decreed vide judgment dated 1-9-1999 followed by a decree drawn on 3-9-1999. As above.
4. In support of above appeal, the first ground pressed into service by Mr. Z.U. Mujahid, learned counsel for appellant was that learned trial Court had no territorial jurisdiction to entertain and adjudicate upon the matters in controversy in the above suit and the other ground urged by him was that summonses were not duly served upon appellant, therefore, learned trial Court erred in holding appellant ex parte, thereafter dismissing his two applications i.e, one for recall of order declaring him ex parte and another for leave to defend.
5. Elaborating the reasons for the first ground, learned counsel for appellant submitted that agreement for supply of medicines was not made at Karachi, all transactions in respect thereof were made at Peshawar where appellant resides and carries on his business and that no cause of action had accrued to respondent at Karachi, therefore, learned District Judge at Karachi had no jurisdiction to pass the impugned judgment and decree. Regarding other ground, Mr. Mujahid expressed that appellant was not served by any of the ordinary modes of service and the summons against him got published in daily newspaper Nawa-e-Waqt, Rawalpindi/ Islamabad, dated 14-3-1998 did not come to his knowledge as the said newspaper was not widely read in Peshawar, a place of his residence and business. He added that on an application of plaintiff/respondent, learned trial Court had specifically ordered on 22-1-1998 for publication of summons in a daily newspaper Peshawar; however, instead of publication of notice as ordered, it was carried in a newspaper of Rawalpindi/Islamabad which could not be considered as proper and sufficient service of notice, moreso, in view of his above explanation hence appellant could not have been proceeded against, ex parte, so also subsequent single order dismissing his applications to recall ex parte order and leave to defend, on above facts having been brought to light, were in illegal exercise of jurisdiction hence of no legal consequence. He placed reliance on case of Jivatlal Purtapshi and others v. Lalbhai Fulchand AIR (29) 1942 Bombay 251; Sheikh Imam Ali v. Ch. Muhammad Shafi PLD 1956 Lah. 341 and Rehmat Ali v. Additional District Judge 1999 SCMR 900.
6. On the other hand, Mrs. Shiraz Iqbal, learned counsel for respondent, while refuting the above contentions, submitted that the contract between the parties was concluded at Karachi from where the medicines in question were undeniably supplied and despatched by respondent to the appellant hence a part of cause of action had accrued at Karachi, besides, she added that the cheques, although subsequently dishonoured, drawn by appellant in favour of respondent were delivered and, in actuality, were made payable to him at Karachi, too, indicated that a part of cause of action accrued within jurisdiction of trial Court therefore, suit was competently filed at Karachi. She submitted that learned District Judge, Karachi, enjoyed plenary powers to entertain and adjudicate upon the matters in the above suit. She placed reliance on case of Muhammad Yaseen and 2 others v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 and the case of United Distributors (Pvt.) Ltd. v. Mirza Trading Agency 1997 MLD 2797. Regarding service of summons, she contended that it was not only publication of the summons in the newspaper which found favour with the learned trial Court to hold appellant ex parte but he was also served by summons issued through Courier Service, which could not be ignored by saying simply that summons appeared in a newspaper published in Rawalpindi/Islamabad. She added that even otherwise daily newspaper Nawa-e-Waqt, Rawalpindi was widely circulated and read at Peshawar, as such, on the basis of such publication of summons, too, service was rightly held good against appellant.
7. I have had the benefit of above arguments of both the learned counsel with whose assistance, I have also gone through the material made available before me.
8. Regarding first ground taken by learned counsel for appellant,it may be stated that respondent has mentioned in his plaint that parties entered into agreement at, goods were supplied (vide Bill No,439, dated 21-11-1996) from and cheques were submitted at Karachi. There is no denial that respondent is a Karachi based manufacturer of the medicines which were despatched under Bill No,439, dated 21-11-1996. Appellant, in his application under Order 9, rule 7, C.P.C., had, too, shown the purchase of medicines from respondent, at Karachi. Besides, respondent in his counter- affidavit in reply to appellant's another application under Order 37, rule 3, C.P.C. Had taken a plea that his office was located at Karachi, parties entered into an agreement at Karachi and the goods were; supplied from Karachi constituting the jurisdiction of learned trial Court to entertain the suit.
This assertion; too, went unchallenged and unrebutted. Learned trial. Court took note of such facts and while dismissing application of appellant for leave to defend, held that it had jurisdiction to adjudicate upon the matter in question. It may be noted that above-noted bundle of facts inclusive of element of supply of material gave rise to the filing of suit. Inter alia, it has become clear that place of supply of goods, was Karachi. In the cited case of Muhammad Yaseen and 2 others (supra) where plaintiff who had his residence and he ran his business, as well, at Quetta reached an agreement with defendants, residents of Faisalabad, for supplying them coal to be despatched through a goods company at Quetta to Faisalabad, seemingly, he had a dispute, which led to filing of suit at Quetta for recovery of Rs,1,50,000 as price of coal supplied to defendants. The plaint in that suit was returned to the plaintiff by Additional District Judge, Quetta, for presenting the same before a competent Court of jurisdiction as it was held that Courts at Quetta had no territorial jurisdiction. On an appeal, High Court, after noticing sub-clause (c) of section 20, C.P.C. To the effect that a Civil Court, where cause of action whole and part arise shall also have jurisdiction, observed that there would hardly be any difficulty in concluding that at least part of cause of action accrued at Quetta. On an appeal filed against the said order Honourable Supreme Court observed that "the bundle of essential facts which comprises the cause of action in this case among other elements relating to Quetta, undoubtedly contains the most essential partial element of supply of coal at Quetta from where it was to be despatched to Faisalabad". It was further observed that "the question of supply being very important in the context of circumstances of this case the same is also a very essential fact" and held that there was no infirmity in the impugned judgment of High Court, legal or otherwise and dismissed the appeal.
9. Be that as it may, in the instant case, these cross cheques mentioned above were apparently delivered to the respondent at Karachi which is crystal clear from the fact that respondent deposited the same with his bank viz. ANZ Grindlays Bank, Gulshan-e-Iqbal, Karachi to be credited to his account. The signature of authorized officer of said bank with endorsement thereon that "payees account is credited on realization" lends support to the above fact. Respondent has unequivocally stated in his plaint that he submitted these cheques: It Karachi, which cannot be for any purpose other than to receive the payment, in real sense, by crediting the same into his account maintained in a Bank at Karachi. Thus, submission of cheques as above, in my view, is also an essential fact. It may be noted that cheque like a pro-note is a negotiable instrument. In a case of Arunachanal Chettiar and another v. Murugappa Chettiar and another AIR 1956 Madras 629, it was held that if a note is executed at one place and delivered at another or is made payable at another place part of cause of action arises at each one of those places and suit may be filed at any place at the option of plaintiff. Case of Jivatlal Purtapushi and others (supra) cited by learned counsel for appellant also supports this view. In the instant case, it is not only that purchase price of medicines was apparently made payable to the respondent through cheques at Karachi but the said cheque, as stated above, was apparently delivered at Karachi. It may be noted that the other two cases cited by learned counsel for appellant are in distinguishable circumstances hence of no assistance to appellant.
10. Cumulative effect of above discussion, in my humble view, that trial Court had jurisdiction to entertain and adjudicate upon the matters involved in the above suit.
11. Coming to the other ground raised by learned counsel for appellant, it may be stated that on examination of R&P of lower Court, a startling fact, to be discussed next, came to light which does not find place in the impugned judgment. It would be unwise not to mention it as the same, obviously, has a strong linkage with the issue being dilated upon.
12. Record shows that appellant was, twice, declared ex parte with directions to file affidavit-in-ex parte proof alongwith entire original documents. First time appellant was declared ex part on 2-12- 1997 and then, again, on 18-3-1998. It appears that after appellant was declared ex parte on 2-12- 1997 respondent moved an application under Order 5, rule 20, C.P.C., for which, in normal circumstances there was no necessity specially when he had already filed affidavit-in-ex parte proof as per directions of trial Court. Be that as it may, on the afore-mentioned application learned District Judge vide his order dated 22-1-1998 directed that notice (summons) be sent to the appellant through bailiff, registered post A.D., by TCS, pasting at the outer gate of defendant's house, as well as by publication in daily newspaper, Peshawar. On the face of it, it looks strange as to why; or what necessitated learned trial Court to entertain afore-mentioned application and pass thereon an order once the appellant stood already declared ex parte, however, before such question is answered at a proper place hereafter, it will be pertinent to see the effect of service of notice (summons) twice directed and the validity of two orders passed by learned trial Court in respect thereof. In this behalf, it may be stated, though at the cost of repetition, that for the first time appellant was declared ex parte by an order passed on 2-12-1997. To appreciate validity and effect of that order, it will be pertinent to, first, reproduce the orders on two dates of hearings viz. 12- 11-1997 i.e, the date of hearing immediate before the next date of hearing and also of another order dated 2-12-1997 when appellant was declared ex parte;-- "12-11-1997 ' None present for the plaintiff. Defendant also called absent. Notice sent to the defendant at his Peshawar address has not been returned. Repeat the notice on costs through District Judge, Peshawar, as well as by Registered Post A.D. And T.C.S. Adjourned to 2-12-1997."
"2-12-1997 ' Case called. Advocate for the plaintiff is present. None present for the defendant in spite of that the notice was sent through the bailiff, Registered A.D. And T.C.S. The defendant is declared as ex parte. The plaintiff is directed to file affidavit in ex parte proof alongwith all original documents. Put off to 13-12-1997 for filing of affidavit in ex parte proof by the plaintiff." (Underlining added).
' Perusal of above two orders would reveal that notice was ordered to be issued to appellant for 2- 12-1997 was ordered to be issued to appellant for 2-12-1997 through District Judge, Peshawar, as well as by registered post Acknowledgement Due and T.C.S. However, there is nothing on record to show that any notice (summons) for the next date of hearing viz. 2-12-1997 was issued. Neither, any postal receipt/AD nor receipt of any Courier Service Agency including T.C.S. Is available to indicate that such notice, if any, was sent and received by appellant. Perusal of order dated 2-12-1997, reproduced above, too, clearly shows that learned trial Court before declaring appellant ex parte failed to verify whether appellant was duly served or not. Conversely, it can be said that learned trial Court did not expressly state about its satisfaction regarding service of notice/(summons) before holding appellant ex parte. All the aforementioned facts reflect that respondent was conscious of above factual position i.e, the lacuna in service of summons; and moved application under Order 5, rule 20, C.P.C. For getting appellant served which could only be the reason forcing him to move such application on 15-1-1998 to have the appellant served with summons by way of publication otherwise, there seems to be no other apparent and/or plausible reason to file such an application when appellant as per order dated 2-12-1997, stood declared ex parte and respondent had already filed affidavit in ex parte proof with original documents. It seems respondent himself and the Court itself were not ready to decide the matter as a consequence of order dated 2-12- 1997 and it was thought better by respondent to move application for substituted service which was allowed. Thus in my humble view the order dated 2-12-1997 cannot be said to be legally and factually sustainable.
13. In the foregoing paras, it is stated that on 18-3-1998, appellant was declared ex parte next time, as well, so also it is stated that learned trial Court had passed order on 22-1-1998 on application under Order 5, rule 20, C.P.C. Which reads as follows:--- "ORDER ' This is an application moved by the Advocate for the plaintiff, praying for service on the defendant by way of substitute way as the defendant is avoiding to receive the notice.
' In view of the above I allow this application. Let the notice be sent to the defendant through Bailiff, registered A.D., by T.C.S., notice be pasted at the outer gate of the defendant as well as it he published in daily newspaper Peshawar.
Given under my hand and seal of the Court, this the 22nd day of January, 1998. (Underlining added)
(Sd.)
(Agha Rafiq Ahmad Khan), District Judge, Karachi East."
14. Above order dated 22-1-1998, indicates that notice (summons) was ordered to be served on defendant/appellant through bailiff, registered post A.D., by T.C.S. And pasting at the outer gate of defendant (presumably house of defendant) so also by publication in a daily newspaper Peshawar. Except service by publication to be dilated upon hereafter, it may be stated as regards other modes that there is nothing on record that the notice (summons) issued for next dates after 22-1-1998 was served upon the appellant through any of the above modes. Of course there are certain receipts of Courier Service Agency i.e, T.C.S. One of such receipts relates to 8-11-1997 which is even prior to 12-11-1997 when notice was ordered to be issued for a date of hearing on which appellant was declared ex parte for the first time. However, as already stated, there is nothing to show that a notice (summons) so issued under that receipt was served upon appellant. The other receipt relates to 25-5-1998 which falls much after appellant submitted application under Order 9, rule 7 and under Order 37, rule 3, C.P.C. Hence this receipt, too, is not relevant to hold that appellant was served to appear before Court on the dates of hearing when he was again declared ex parte.
In the circumstances, I am clearly of the view that appellant was not duly served by the above modes.
15. As regards service by publication, it may be stated that copy of newspaper in which notice (summons) was published is available on record which shows that said newspaper is not of Peshawar but it was published from Rawalpindi/Islamabad i.e, outside the Province of ordinary residence of appellant and where he carried on his business. There is no denial to this effect.
Publication of summons/notice, as above, is, also, in derogation of order dated 22-1-1998, reproduced above, whereby notice was to be published in newspaper of Peshawar. It, however, sounds strange that learned trial Court while declaring the respondent ex parte has treated the above publication as of a newspaper of Peshawar as is evident from its order dated 18-3-1998 reproduced below:-- "18-3-1998 ' Plaintiff's counsel is present. Defendant is called absent and notice was published in daily "Nawa- i-Waqt", Peshawar. In spite of that, he did not appear. I therefore, make him as ex parte and the plaintiff is directed to file the ex parte proof on the next date of hearing. Case is adjourned to 3-4- 1998 for further proceedings."
16. Be that as it may contention of Mr. Mujahid, learned counsel for appellant also is that the said newspaper is neither, widely circulated in the Province of N.-W.F.P. Nor the appellant could read it.
There is also nothing on record to controvert the above contention. Therefore, I feel disposed to agree with Mr. Mujahid in his aforesaid proposition.
17. Before concluding it may be stated that besides, there is another angle to appreciate the validity and effect of service of summons by way of publication. Normally publication of notice/summons is ordered when the Court choosing to adopt such mode as a last resort, having applied its judicial mind, forms an opinion that conditions essential for ordering substituted service were complied with and that recourse to ordinary mode was of no consequence (1993 CLC 2303 and 1995 MLD 170 referred). Even in banking matters where issue of summons and notices to defendant under rule 8 of Banking Companies (Recovery of Loans) Rules, 1980, is simultaneous through bailiff of Court, by registered post acknowledgement due and by publication, service of any of the aforesaid modes is deemed proper and valid service for the purposes of the Ordinance namely Banking Companies (Recovery of Loans) Ordinance, 1979 (as then was in force), my respectable brother Wajihuddin Ahmed, J. Of this Court (as then he was), in a case reported as Messrs United Bank Ltd., Karachi v. Messrs Mohibali Tannery Ltd., Karachi PLD 1994 Karachi 275, while examining in the light of plethora of case-law the question of service of summons on defendant in like case observed as follows:-- ' "As to service through a newspaper, because rule 8 has provided for such service without any concomitant requisites of previous avoidance of refusal process by the defendant(s) such is not a prerequisite for holding service by publication good, under the said rule.. The Supreme Court, in the case of Ahmed Autos, categorically declared the dicta to that effect comprised, inter alia, in Allied Bank of Pakistan Limited v. Tahir Traders PLD 1986 Kar. 369, as having been overtaken by the legislative insertion of the concluding phase in rule 8, as underlined above.
' At the same time, may it be noted, that the deeming effect of service by publication under Order 5, rule 20, C.P.C. Has always been in place and once a proper publication is made in newspaper, which satisfies the requirements of law, a presumption would arise that due service thereby was effected on the defendant(s). However, for such service to qualify for the necessary presumption the requirement of adequacy of publication sufficient to carry knowledge to the defendant should be met. If not, the presumption may, subject to the facts, give way." (Underlining added).
' Further observed that:- ' "The rule of our jurisprudence, which, as of now, also substantially draws upon the Fiqh, is to proceed with Court disputes on merits, allowing, adequate opportunities of defence and never to shut out such opportunities. Law, it has been said time and again, favours disposal upon due hearing and there is little room for mere technicalities in this. All procedure is designed to secure the advancement of justice. It is the end which justifies the means and not vice versa. If, therefore, a defendant, upon appearance is able to show that he had no knowledge of the proceedings instituted againsi him and that the means adopted to convey due knowledge were inadequate and failed to achieve the purpose for which such means were deployed, he should, irrespective of technicalities', be provided due recourse for defence though, at the same time, ensuring that a cause is neither defeated nor prejudiced by an unscrupulous defendant taking undue advantage of any fault in procedure.
' For these reasons, one would expect that the practice, currently in vogue, of issuing processes in the three modes of service contemplated by rule 8 and thereupon straightaway placing the cases in Court, irrespective of ascertaining whether service was or was not effected, pursuant to summons despatched through bailiff and by registered post and relying solely on publications, should be forthwith departed from. If there is non-appearance and if positive reports of service through bailiff or by registered attempt should be made to effect such service through the said two modes and it is only upon failure of such repeat service that the matter be placed in Court for necessary orders. The object is not to negate the effect of publication, which should, at any event continue, but merely to forestall all possible controversies in case the deeming effect of publication is for some reason, subsequently effaced. This, of course, would apply prospectively and then as well insofar as publication is concerned there needs be no repetition of it unless the first publication was faulty."
18. Similar view has been expressed in another case of Wahid Ice and Cold Storage Plant v. N.B.P.
Reported in PLD 1996 Karachi 529.
19. Considering the above facts and circumstances I allow this appeal, set aside the impugned order, remand the case for fresh disposal in accordance with law after allowing the appellant/defendant to appear and defend the suit. Parties to bear their own expenses.