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Civil Petition for Special Leave to Appeal No. 324 of 1975, decided on 9th December, 1979.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 14th February, 1975 in F. A. O. 69/1974).
--- O. III, r. 6(2) read with Manual of Secretariat Instructions, Govern ment of West Pakistan, para. 98-Service of notice-Word "letters" Includes all communications addressed to Department and so also a Court notice-Court notice also a communication-Service of notice on Superintendent-Held service on Secretary of Department as his agent. [Words and phrases].
Mian Nusratullah, Advocate and S. Ijaz Ali, Advocate-on-Record for Petitioner.
Iqbal Ahmad Qureshi, Advocate-on-Record for Respondents.
Date of hearing : 9th December, 1979.
The petitioner seeks special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 14th of February, 1975, by which F. A. O. 69 of 1974 was dismissed.
Under an agreement the first respondent agreed to construct the National College of Arts which contained a provision for arbitration. It so happened that a dispute arose over the payment of Rs. 78,000 which, by consent of the parties, was referred to the sole arbitration of Mr. S. M. Bhatti, who by his award allowed the payment of Rs. 33,149.34 to the first respon dent. This award was filed in the Court of Civil Judge, 1st Class, Lahore, on 8th of July, 1973, and a notice was issued to the parties on 16th of July, 1973 to file their abjection by 30th of July, 1973. The notice was duly served on the second respondent who filed objections against award within the stipulated time but the notice intended for the petitioner, was returned on the 17th by the Superintendent. Receipt and issue Section of the Communication and Works Division with the following endorsement:-
"Returned with the remarks that a copy of the plaint or other necessary particular to show as to which section in this Department is concerned, for it may kindly be sent so that it may be sent to the section concerned as in absence of this information in this respect no section accepts it."
No further notice was sent for service on the petitioner but on 7th of November, 1973, the objections to the award were filed by the petitioners beyond the time limit giving the reason for the delay that it was only on 30th of October, 1973, that the petitioner had come to know of the filing of the award in Court which explanation was not accepted and by order dated 23rd of January, 1974, the objections were reject. Against this order the aforementioned appeal was filed which too met the same fate.
It was urged before the High Court that the Superintendent was not competent to receive Court notice on behalf of the Secretary of the Depart ment as he was not his agent within the meaning of Order III, rule 6(2) C. P. C. This contention was repelled as the High Court held it was not factually correct in view of para. 98 of the Manual of Secretariat instructions issued by the Government of West Pakistan, 1956. The High Court further held that the word "letters" would, within its ambit, include all communi cations addressed to the Department and so also a Court notice which, to all intents and purposes, is a communication; and hence the petitioner was duly served. The High Court also held that even if the section was not, mentioned still the Superintendent could have found it out if be had made an inquiry in this behalf from the second respondent who belonged to this Department and on whom the notice was duly served. It was therefore, a case where the Superintendent had evaded his responsibility by endorsing on the notice that the section was not identifiable. Accordingly the refusal on his part was not explicable and it must be regarded to have been served on him as an agent of the petitioner.
The learned counsel for the petitioner admitted that the Superinten dent belonged to the 5th Provincial Buildings Division to which Depart ment respondent No. 2 belonged and the agreement was also executed with this Department. Accordingly, we see no reason as to why the section would not be identifiable if the Superintendent had made a real effort to find it out. It was feebly argued that the Superintendent was not the agent of the petitioner within the meaning of rule 6(2) of Order III and rule 12 of Order V, C. P. C. and, therefore, the service of notice on him could not be regarded as due service on the petitioner. But this contention loses sight of para. 98 of the above-cited Manual on which the High Court has relied for holding him to be authorized to receive such a notice which, in no way, is different from the concept of the words "recognised agent" and "agent" respectively occurring in the above provisions.
There is therefore, no substance in this petition which is dismissed.
Petition dismissed.
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