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Civil Petition for Special Leave to Appeal No. K‑93 of 1969, decided on 26th January 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi dated the 4th June 1969, in Revision Application No. 64 of 1966).

, O. IX, rr. 6 & 9‑Suit decreed ex parte after ordering ex parte proceeding due to non appearance of defendant‑At time of passing ex parte decree counsel for defendant appearing and praying to be heard on preliminary issue in suit that same was not maintainable‑Prayer refused but sub sequently on application under O. IX, r. 13 Court setting aside ex parte decree‑Order setting aside ex parte decree, in circumstance, held, not illegal‑Contention that ex parte decree could not be set aside without first setting aside ex parte proceeding‑Held: rules of procedure laid down in C. P. C. not intended for retarding justice on bare technicalities.

Muhammad Arif, Advocate Supreme Court instructed by Vakil Ahmad Kidwai, Attorney for Petitioners.

Nemo for Respondent.

Date of hearing : 26th January 1970.

.‑This petition for special leave to appeal is directed against the decision of a Division Bench of the High. Court of West Pakistan (Karachi Seat) made in revisional jurisdiction under section 115 of the Civil Procedure Code, refusing to interfere with the order of the Second Civil Judge, First Class, Karachi, whereby an ex parte decree earlier granted by him to the petitioner (Messrs Landhi Industrial Trading Estates Ltd. Karachi) against the respondent (Government of West Pakistan) was set aside. The ex parte decree aforesaid was obtained by the petitioner in a suit which it had filed against the Karachi Development Authority and the Government of West Pakistan, defendants 1 and 2, respectively, on the 20th of May 1964, for a declaration that it was immune from imposition of tax under the West Pakistan Urban Immovable Property Tax Act and for a permanent injunction to restrain the defendants from recovering the same.

According to the Court diary (copy‑on‑record, Exh. G) the order recorded on the 30th of may 1964, shows that defendant No. 1 was unserved by that day but defendant No. 2 was absent in spite of service. It further appears that defendant No. 2 remained absent throughout until the ex parte decree was awarded against it on 24‑11‑1964, when simultaneously the suit against defendant No. 1 was withdrawn by the plaintiff. Earlier on 19‑9‑1964, owing to the absence of defendant No. 2 in spite of service, it had been ordered that the suit shall proceed ex parte against it.

On the 22nd of December 1964, Defendant No. 2 filed an application purporting to be under Order IX, rule 13, of the Civil Procedure Code, for setting aside the ex parte decree. It was represented in the application that on 24‑11‑1964 when the ex parte decree was awarded after hearing the arguments of the plaintiff's counsel regarding maintainability of the suit, the Government Advocate' who was present on behalf of defendant No. 2 asked for an opportunity to argue in rebuttal which was refused for the reason that the order of the Court dated the 19th of September l964, by which defendant No. 2 had been placed ex parte stood in the way.

The application for setting aside the ex parte decree was allowed by the Court on the 15th of January 1966, and the case was ordered to be revived for decision on merits.

In the revision application preferred against that order, it was urged in the High Court that the ex parte decree was set aside illegally without, in the first instance, setting aside the order dated the 19th of May 1964, by which ex parte proceedings had been ordered against the defendant‑respondent. It was also urged that no sufficient reason was disclosed for the continuous absence of the respondent from the proceedings and that ex parte order against it was competently made. The learned Judges of the Division Bench have held that the ex parte decree itself was made on an illegal premises, firstly because on the date it was made the case was fixed for filing of counter affidavits by the defendants and not for a final decision and secondly, that the trial Court had acted illegally with undue haste and against the principles of natural justice in refusing to recognize the presence of the Government Advocate on behalf of defendant No. 2 on the 24th of November 1964, and in not permitting him to argue the issue of the non‑maintainability of the suit as requested by him.

We entirely agree with the view adopted by the High Court. We find that initially service was not effected on the respondent according to law through any of its proper officers authorized to accept service or through the Government Pleader, as required by rule 4 of Order XXVII, of the Civil Procedure Code. The summons had instead been sent to the Excise Department for service which was not the agent of defendant No. 2 for that purpose.

In any case, the trial Court was clearly wrong in not permitting the defendant's counsel to participate in the proceedings on the 24th of November 1964, when he entered appearance on its behalf and wanted to argue the case on the preliminary issue of the maintainability of the suit. Rules of Procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities. We agree with the High Court that the ex parte decree was rightly set aside in this case and that the suit has been properly revived for final decision according to law.

There is no substance in this petition which is dismissed.

Petition dismissed.

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