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Civil Petition for Special Leave to Appeal No. K‑211 of 1983, decided on 13th October, 1983.

(On appeal from the judgment and order of the Sind High Court Karachi, dated 7th April, 1983 passed in Civil Revision Application No. 58 of 1983).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Civil Procedure Code (V of 1908) S.115‑‑Limitation Act (IX of 1908), S.5‑‑Revisional jurisdiction of High Court Condonation of delay‑‑Additional District Judge while disposing of application ur S.5, Limitation Act holding service of summons on respondent be doubtful‑‑Conclusion of appellate Court found to be vague and satisfying requirement of law properly and exercise of discretion based on judicial considerations‑‑Application for Condonation of d and appeal from decree passed against respondent proceeding on con ground that respondent was not served with summons of suit and his signatures on summons were forged‑‑Additional District Judge accepting such ground for purposes of application for condonation delay, in effect sealing fate of appeal, and pre‑determining a qua; requiring determination at hearing of appeal‑‑Petition converted appeal and accepted‑‑Order of Additional District Judge set aside matter remanded to first appellate Court for a fresh decision.

Petitioner in person.

Respondent in person.

Date of hearing: 5th October, 1983.

‑‑This is a petition for special leave to appeal against order, dated 7th April, 1983 passed by a learned Single Judge of the Sind High Court dismissing the petitioner's revision application in limine.

2. On the first hearing of this petition on 19th May, 1983, this Court had ordered notice to the respondent informing him that the petition may be converted into an appeal and disposed of accordingly. Today the petitioner and the respondent have both appeared in person and have requested that the case may be disposed of as none of the parties intend to engage a counsel. We have accordingly heard the parties.

3. The facts as disclosed in the petition are that the petitioner filed a suit No. 5059 of 1981 against the respondent for recovery of an amount of Rs. 17,000 which was decreed ex parte on 6th July, 1982 by the IIIrd Senior Civil Judge/Link Judge of XIIIth Court of Senior civil Judge, Karachi on the ground that in spite of service through bailiff the respondent remained absent. The petitioner (decree‑holder) then filed an execution application notice of which was issued to the respondent but he could not be served. However, he appeared in court and obtained an adjournment of the proceedings. After couple of adjournments, it is stated, the respondent remained absent and eventually a warrant of arrest was issued against him for his detention in civil prison. On 24th January, 1983, the respondent filed an appeal against the order and decree, dated 6th July, 1982 passed against him alongwith an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The ground urged in support of the application by the respondent was that the summons issued by the trial Court in the suit "was served upon some arranged person who forged my signature in Urdu on original copy and returned to the Court". It was alleged in the supporting affidavit of the application that again the service of notice of the execution proceedings was obtained in similar way by forging his signatures and that the respondent knew nothing about the filing of the suit or the execution proceedings until 2nd January, 1983 when he was informed that a bailiff of the Court had come in search of him. On 3rd March, 1983 the learned Additional District Judge passed the following order on this application:

"Heard counsel for the parties. From perusal of the record service of the summons of suit upon the appellant appears to be doubtful. The contentions advanced on behalf of the appellant are not without force. The delay in the circumstances of the case stands explained satisfactorily and the same is condoned accordingly."

It is pertinent to point out that in his memo of appeal also the main ground of objection taken by the respondent to challenge the decree passed against him was that the respondent was not duly served and that by fraud and misrepresentation on the same facts as disclosed in the application under section 5 of the Limitation Act, the orders for ex parte proceeding were obtained.

4. The petitioner being aggrieved by the aforesaid order, dated 3rd March, 1983 filed a civil revision application before the High Court which was dismissed by the impugned order in this petition on the ground that the "reasons given for condonation of delay cannot be said to be arbitrary or perverse, and I find no other reason to interfere with the discretion exercised by the learned Additional District Judge".

5. After hearing the parties and perusing the record we find that the learned Additional District Judge while disposing of the application under section 5 of the Limitation Act held the service of the summons of the suit upon the respondent to be "doubtful". In fact this is the sole reason assigned for condoning the delay. The petitioner contented before us that the order is contrary to the settled principle of law that each d.9y's delay has to be explained by the applicant for condonation of delay under section 5 of the Limitation Act. We regret to observe that the learned Additional District Judge treated the question of the effectiveness of the service of summons upon the respondent in a very cursory manner and without giving a positive finding whether the service was duly effected or not in accordance with law, merely proceeded to condone the delay on his view that the service of the summons of suit upon the respondent appeared to be doubtful. This in our view was a wholly improper approach to the question of service the legality of which was challenged on factual basis.

6. The order condoning the delay being within the discretion of the Court, the High Court was right in stating the principle that it could not interfere in its revisional jurisdiction unless it was satisfied that the discretion vesting in the Court under section 5 of the Limitation Act was exercised in an arbitrary or perverse manner. But as pointed out by us the sole reason on which the order was based, was a vague conclusion that the service was doubtful which does not in our view, satisfy the requirement of law properly as the discretion should be based on judicial considerations.

7. However, since the learned Judge in the High Court was sitting in the revisional jurisdiction over the order, we may not have been inclined to interfere with the impugned order and would have left the matter to be agitated in a further appeal from the final judgment passed by the learned Additional District Judge if the appeal was decided against the respondent (plaintiff). But there is another aspect of the matter which seems to have escaped the notice of the learned Single Judge which impels us to interfere in this case. It will be observed that the application for condoning delay and the appeal from the decree passed against the respondent both proceed on a common ground that the respondent was not served with the summons of the suit and that his signatures on the summons were forged. This being the position, the learned Additional District Judge having accepted this ground for the purposes of the application for condonation of delay, in effect sealed the fate of the appeal and pre‑determined a question which required determination at the hearing of the appeal. In this view of the matter the question whether the service on the respondent was properly effected or whether it was effected on an arranged person, assumed vital importance and could not be disposed of in the manner done in this case, in connection with the disposal of the interlocutory application. The proper procedure for the learned Additional District Judge was to defer the decision on the application for condonation of delay and to have disposed of the same alongwith the main appeal. As it is the hearing of the appeal would be a mere sham depriving the petitioner before us of the valuable right of being heard and of opposing the appeal.

8. For the foregoing reasons, we would convert the petition into an appeal and allow the same. The order of the learned Additional District Judge, dated 3rd March, 1983 is hereby set aside and the matter is remanded to the first appellate Court to give a fresh decision in the light of this order in accordance with law. The Court shall be free to decide the application under section 5 of the Limitation Act on its merits alongwith the main appeal. There will be no order as to costs.

S.Q. Appeal allowed

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