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--- O. VIII, r. 10-Direction to company to file written statement, without its being impleaded as a separate entity and without being served according to law-Not justified--Ex pane decree against company, in circumstance, held, could not be passed.

Zulfiqar Ali Bhatti for Appellants.

Rob Nawaz Khan Niazi for Respondent.

Date of hearing : 6th February 1980.

This is an appeal against the order of the Administrative Civil Judge, Mianwali dated 19th September 1979 by which the application made by the appellant for setting aside the ex parse decree was set aside. Briefly stated the facts of the case giving rise to the present appeal are that the respondent filed a suit for the recovery of Rs. 68,438.34ps. against the Mechanised Cons truction Company Limited. However, three defendants were impleaded in the suit without impleading the Company as such. The defendants so impleaded are described below-.. ,

(i) General Manager Mechanised Construction Company Pakistan, Gulberg No, 3, Lahore.

(ii) Chairman Mechanised, Construction Company Pakistan Islamabad,

(iii) XEN Mechanised Construction Company Pakistan, Sargodba at present Okara District, Sahiwal.

2. The respondent who claims himself to be a contractor claimed his amount on account of some work which he had done on behalf of the Mechanised Construction Company. The suit was filed on 27th of March, 1979 and the next date of hearing was 29th of April, 1979 when the Presiding Officer was on leave. On the next date of hearing, i. e. 28-5-79 the respondent was directed by the Court to furnish correct address. The defen dants Nos. 2 and 3 were proceeded ex parte arid in respect of defendant No. I the respondent was again directed to file fresh address. On 12th of July, 1979 for which date the case bad been adjourned in the first instance the Court had taken up the proceedings and adjourned the case when it was noted by the Court that a head Clerk of the Company had appeared and produced a letter which had the effect of acknowledging the claim on behalf of the Company. The suit was partly decreed on the basis of the statement. of the said Head and opportunity was given to file the written statement, On 19th of September, 1979 the written statement having not been filed the defence of the appellant was struck off under Order VIII, rule 10 of the Civil Procedure Code. The appellant having made an application for setting aside the ex parte decree the application was dis missed by the impugned order.

3. I have perused the proceedings and I find that the learned trial Court did not proceed in accordance with law. The claim preferred by the respondent was against a Company and as such the service was to be effected in the manner provided under Order XXIX, rule 2 of the Civil Proce dure Code. Order XXIX, rule 2 which provides as under:--

...... Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other Principal Officer of the Corporation, or

(b) by leaving it or sending it by post addressed to the Corporation at the registered office, or if there is no registered office then at the place where the Corporation carries on business . . . ."

By issuing of the summons to the General Manager the Chairman and the Executive Engineer at different addresses, the above procedure cannot b said to have been complied. Moreover, there was no justification for pro ceeding ex parte against the defendants Nos. 2 and 3 on 18th of June, 1979. The Head Clerk who is said to have appeared on 12-7-79 did not have any authority from the Company so as to enable him to make a statement and was not their authorised Agent as required under Order III of the Civil Procedure Code. No one had filed a power of attorney on behalf of the company and as already stated above the Company had not been served rather not impleaded. To give a direction to the Company to file written statement without its being impleaded as a separate entity and without its service according to the law was wholly unjustified. All these points when brought to the learned counsel for the respondent, he conceded that an ex parte decree could not be passed in the circumstances of the case and Order VIII, rule 10 of the Civil Procedure Code was not applicable.

4. The learned counsel for the respondent has pointed out that the sole purpose of the appellant is to cause delay in the proceedings and to deprive the respondent of its legitimate dues and as such the directions be given for expeditious disposal of the suit. The appellant on the other hand has contended that the amount had already been paid to the respon dent and there was no justification to file the present suit. Since the ex parte decree has been set aside it would be in the interest of justice that the learned trial Court should proceed with the case expeditiously.

5. In view of the above discussion this appeal - is accepted, order dated 19-9-1979 is hereby set aside and the application made by the appellant is accepted and the ex parte decree passed by the learned trial Court on 12-7-1979 is. hereby set aside. The learned trial Court is directed to proceed in accordance with law in the light of the above observations. As the respondent has not contested this appeal and have conceded the case, there will be no order as to costs.

M. Y. M. Order accordingly.

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