2016 C L C 1800

2016 C L C 1800

[Sindh]

Before Sajjad Ali Shah and Syed Saeeduddin Nasir, JJ

TRADING CORPORATION OF PAKISTAN through Chairman----Appellant

Versus

NAVEED HUSSAIN SHAH----Respondent

High Court Appeal No.114 of 2014, decided on 22nd May, 2015.

Sindh Chief Court Rules (O.S.)---

----Rr.128, 129 & 130---Civil Procedure Code (V of 1908), Ss.12(2), 151 & O.IX, R.13---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Suit for recovery of money---Ex parte decree, setting aside of---Restoration of suit---Limitation---Plaintiff was aggrieved of setting aside of ex parte judgment and decree passed against defendant---Validity---If plaintiff had brought fresh suit for recovery of money against defendant after a period of four and half years, the same would have been hopelessly barred by limitation---Plaintiff opted for getting the suit restored by High Court office through a time barred restoration application, to which plaintiff was otherwise not entitled under the law---High Court office by restoring the suit to its original file after lapse of four and a half years and that also without notice to defendant, seriously prejudiced vested rights accrued to defendant on account of dismissal of the suit and striking off the plaint under R.128 of Sindh Chief Court Rules (O.S.)---Notice of restoration application, which was hopelessly time barred, was never served upon defendant and ex parte judgment and decree in the suit was passed behind the back of defendant---Defendant was not afforded an equal opportunity with that of plaintiff to defend the suit---Judge in Chambers of High Court had rightly allowed application of defendant under S.12(2), C.P.C. read with O.IX, R.13, C.P.C. and S.151 C.P.C., setting aside ex parte judgment and decree passed against defendant--- Division Bench of High Court declined to interfere in order passed by Judge in Chambers of High Court, whereby ex parte decree passed against defendant was set aside---High Court appeal was dismissed in circumstances.

            Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

            Ashfaq Hussain Shah for Appellant.

            Nemo for Respondent.

            Date of hearing: 22nd May, 2015.

ORDER

            SYED SAEEDUDDIN NASIR, J.--- This High Court Appeal is directed against order dated 26.03.2014, passed by the learned Single Judge of this Court in Suit No. 459 of 1997 filed by the appellants, allowing the application under Section 12(2), C.P.C. read with Order IX, Rule 13 and Section 151, C.P.C. setting aside the judgment dated 24.10.2007, and decree dated 15.12.2007.

2.         Brief facts of the case are that the appellant filed Suit No.459 of 1997 for recovery of Rs.75,257,176.51 against the respondent.

3.         The first diary sheet of Additional Registrar [O.S.] dated 29.5.1997, reveals that summons to the defendant by bailiff and registered post A/D were not issued as the 'process fee' and 'registration charges' were not deposited by the plaintiff. However, on the plaintiff's application under section 148, C.P.C., time was extended for issuing of summons up to 07.10.1997.

4.         According to diary sheet of Additional Registrar [O.S.], the summons were issued to the defendant through 'bailiff', 'registered post' A/D, and 'cover-in-hand' for 07.10.1997, but the same were returned unserved.

5.         The bailiff report dated 06.10.1997, revealed that the defendant had shifted from the address given in the title of the plaint. The summons by registered post A/D and cover-in-hand could not be issued as no one turned up to collect the process from the office. Again, from the 'diary sheet' of Additional Registrar [O.S.] dated 09.12.1997, it transpires that 'fresh summons' issued to the defendant had also returned un-served. Per bailiffs report dated 09.12.1997 the premises was found locked.

6.         Fresh summons, thereafter, were ordered for 19.02.1998, however, again the same could not be issued as cost was not paid. Thereafter, summonses were issued for 23.11.1998 but the same returned un-served as the 'premises' was found locked as per the bailiff's report. Whereas, summons for 20.08.1998 could not be issued as 'process fee' was not paid. However, 02 weeks' time was allowed for issuance of summons for 15.10.1998. From the diary sheet of Additional Registrar [O.S.] dated 15.10.1998, it appears, that 'fresh summons' issued to the defendant again returned un-served as the office was found locked according to the bailiff's report. As per diary sheets of Additional Registrar [O.S.] dated 08.12.1998 and 09.12.1999, summons could not be issued as 'process fee' was not paid.

7.         From the diary sheet of Additional Registrar [O.S.] dated 13.04.1999 it appears, that summonses issued to the defendant returned un-served as the office was found locked. According to diary sheets of Additional Registrar [O.S.] dated 27.05.1999 and 24.08.1999 summons were not issued to the defendant as 'process fee' was not paid.

8.         In view of the above and due to non-payment of 'process fee' time and again the plaint was consequently 'struck off' on 24.08.1999, under Rule 128 of Sindh Chief Court Rules [Original Side]. The plaintiff thereafter, on 11.02.2004, more than 4 years of the dismissal of the suit, filed an application under Rule 129, SCCR (C.M.A. No.4037 of 2005) with a prayer that order dated 24.08.1999 be set aside and plaint be restored in its 'original position' with condonation of delay, if any. The aforesaid application bearing CMA No.4037/2005 was also supported by the affidavit of one Muhammad Atiq son of late Muhammad Laiq Khan.

9.         It is interesting to note that the aforesaid application bearing C.M.A. No.4037 of 2005 was granted by the Addl. Registrar (O.S) without even issuing any notice to the defendant on 22.09.2005. The plaint was thus restored to its 'original position' after about 5 years [i.e. on 22.09.2005]. Diary sheet of Additional Registrar [O.S.] dated 22.09.2005, shows that summons were issued to the defendant through all modes except publication, however, in the same diary the Additional Registrar (O.S) states that the summons issued to the defendant returned un-served with the endorsement that the office of defendant is not in existence. The plaintiff, however, was directed to produce the 'confirmation report'. Summons in the meantime, was again repeated in the same order though bailiff for 11.11.2005.

10.       From the diary sheet of Additional Registrar [O.S.] of 10th November, 2005, it reveals that the summons issued for 11.11.2005 returned un-served as the office was 'found locked'. Under the said order, it was noted down that the plaintiff has not yet produced 'confirmation report of TCS'. Nonetheless, summons were again repeated through 'bailiff', 'registered A/D' and 'courier' for 10.01.2006 despite the fact that office was, time and again, found locked/closed.

11.       From diary sheet of Additional Registrar [O.S] dated 27.01.2006 it appears, that the summons issued to the defendant returned un-served as the office was found 'locked'. Under circumstances, the plaintiff was directed to supply 'fresh address' of the defendant in a week. In the meantime summons were repeated for 21.3.2006.

12.       As per diary sheet of Additional [O.S.] dated 21.3.2006, summons could not be issued to the defendant as cost was again not paid. Further, under the same order the plaintiff's application under Order V, Rule 20, C.P.C. for serving the defendant, by way of publication, was granted and plaintiff was directed that publication be made in the Daily 'JANG' Urdu, Karachi for 04.05.2006.

13.       From the diary sheet of Additional Registrar [O.S.] dated 04.5.2006 it appears, that the publication was not issued as cost was not paid. However, one week's time was granted for making payment of cost for publication on 02.06.2006. Per diary sheet of 02.06.2006 Additional Registrar [O.S.], the summons through publication, were served in daily 'JANG' Urdu, Karachi of 16.5.2006. The Additional Registrar [O.S.] vide order dated 2nd June, 2006, held service upon defendant good'. On 21.08.2006 the defendant was declared 'ex parte'.

14.       Thereafter, vide order dated 29.11.2006 the plaintiff request for filing affidavit-in-ex parte proof was granted and the plaintiff was directed to file the same within a period of two weeks, in compliance whereof the plaintiff filed the same on 13.12.2006. The suit was decreed on 24.10.2010 awarding the claim of Rs.75,257,176.51 plus mark up at the rate of 14% per annum.

15.       The respondent filed an application under Order IX, Rule 13, C.P.C. read with Sections 12(2) and 151, C.P.C. wherein he prayed for setting aside the judgment and decree dated 24.10.2007 passed in Suit No.459 of 1997 and inter alia contended that respondent had no knowledge of the institution of the above suit and/or the judgment/decree passed therein as the respondent was not served with the summons of the above suit, nor he had any knowledge thereof. The respondent has further stated in the affidavit filed in support of the aforesaid application that the respondent came to know about the judgment and decree passed by this Court, through public notice of Execution Application No.41 of 2008 published in daily "JANG" on 02.06.2009 upon which he made inquiries from the relevant Branch of this Court, and ultimately came to know of the judgment and decree dated 24.10.2007 passed by this Court in the above suit. It is further stated in the application that from the record of the aforesaid suit it appears that the respondent has been served on the basis of publication of the summons of local newspapers in May, 2007. The order for substituted service was obtained by the appellant on the basis of false, contradictory and misleading reports of the bailiff. The office premises was not always locked except for the period from January, 2006 to April, 2006 during which the respondent had taken his late father to Singapore for medical treatment. It is further stated in the application that the fresh address was already available with the appellant inasmuch as the appellant has filed another suit against the respondent bearing No.Suit No.196 of 1996, which is still pending before this Court. It is further stated in the said application of the respondent that despite the fact that the plaint in the above suit was struck of on 24.8.1999 under Rule 128 of the Sindh Chief Court Rules, (O.S.), however, the appellant did not make the requisite application until 11.02.2014, for setting aside the said order and for restoration of the same, which was barred by prescribed period of limitation. The said application was allowed by the Additional Registrar (O.S.) after four and a half years and that also without notice to the respondent. The Additional Registrar [O.S.] by restoring the suit to its original file after a lapse of four and a half years, and that also without notice to the respondent, seriously prejudiced the vested rights accrued to the respondent on account of dismissal of the suit and striking off of the plaint as aforesaid under Rule 128 of the SCCR (O.S.).

16.       Mr. Ashfaq Hussain, learned counsel appearing for the appellant has inter alia argued that the order dated 26.03.2014 passed by the learned Single Judge of this Court allowing the application filed by the respondents under Section 12(2), C.P.C. is without merits and based on misrepresentation of SCCR and Order V, Rule 20, C.P.C. The service of summons was effected upon the respondent through all modes including publication in daily Jang Karachi dated 16.5.2006.

17.       We have heard the learned counsel for the appellant and examined the material available on record of the case upon which we have come to the conclusion that the order dated 22.09.2005 passed by the Additional Registrar [O.S.] setting aside the order dated 24.08.1999, whereby the suit was dismissed for non-prosecution, and restoring the suit to its original file after an inordinate delay of 4-1/2 years, and that also without notice to the respondent, is not warranted under the law. It is an admitted position that under Rule 130 of the SCCR (O.S.) the appellant could have brought a fresh plaint in respect of the same subject matter, however, subject to law of limitation to present a fresh plaint. If the appellant had brought fresh suit for the recovery of money against the respondent after a period of four and a half years, the same would have been hopelessly barred by limitation. Therefore, the appellant opted for getting the said suit restored by the Additional Registrar (O.S.) through a time barred restoration application, to which the appellant was otherwise not entitled under the law.

18.       The Additional Registrar [O.S.] by restoring the suit to its original file after a lapse of four and a half years, and that also without notice to the respondent, seriously prejudiced the vested rights accrued to the respondent on account of dismissal of the suit and striking off of the plaint as aforesaid under Rule 128 of the SCCR (O.S.). It is an admitted position that the notice of restoration application, which was hopelessly time barred, was never served upon the respondent, and the ex parte judgment and decree in the above suit, were passed behind the back of the respondent.

19.       We are fully in agreement with the opinion expressed by the learned Single Judge in the impugned order that the case should be decided on merits. It is indeed settled law that Courts of law always prefer a decision of a case on merits and discourage technical knockout. We are fortified in our view by the case of Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382, wherein it is held that the "Administration of Justice is to help and not to thwart the grant to the people of their rights".

20.       In the instant case it is an admitted position that the respondent has not been afforded an equal opportunity, with that of the plaintiff, to defend the suit. Therefore, we are of the considered view that the learned Single Judge has rightly allowed the application of the respondent under Section 12(2), C.P.C. read with Order IX, Rule 13 and Section 151, C.P.C. setting aside the judgment dated: 24.10.2007, and decree dated 15.12.2007 vide; impugned order dated: 26.03.2014.

21.       For the aforesaid reasons we see no force in the arguments extended by the learned counsel for the appellant, there is no reason to interfere with the impugned order, which is unexceptionable. Consequently, we dismiss the instant appeal in limini at preliminary/ Katcha Peshi stage along with all listed applications.

MH/T-2/Sindh                                                                                      Appeal dismissed.