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Civil Revision No. 85 of 1984, decided on 7th October, 1985.

‑‑‑0. V, r. 20‑‑Substituted service‑‑No summons addressed to petitioner at his address‑‑Notice once issued remained unserved‑‑Nothing on record available to suggest that defendant was avoiding service‑‑Substituted service ordered in newspaper published from Quetta for a person residing in England‑‑All available steps to effect proper service, held, must be made before resorting to substituted service through publication in newspaper.

‑‑‑0. IX, r. 13‑‑Ex parte decree, setting aside of ‑Defendant, held, was entitled to have ex parte decree set aside against him if summons were not duly served. even when defendant was aware of institution of suit against him.

‑‑‑S. 20‑‑Jurrisdiction‑‑Agreement between parties executed at R‑ Defendant residing at R‑‑Civil Court at Q, held had no jurisdiction to decide case against defendant residing at R, on agreement executed at R‑‑Judgment delivered by Court at Q was on face of it void and without jurisdiction‑‑Inherent lack of jurisdiction was apparent on face of record and same would not necessitate enquiry and determination.

‑‑‑S. 20‑‑Phrase "cause of action"‑‑Meaning and scope‑‑Every allegation, held. was not part of "cause of action". unless plaintiff proved same in order to obtain judgment‑‑Court at Q, having no territorial jurisdiction deciding case, entire proceedings at that place were "Corum non judice nullity in law and liable to be ignored.‑‑[Words and phrases]. Engineering Supplies Ltd. v. Dhandhania and Co. A I R 1931 Cal. 659 and Alexander Broult v . Indra Krishina Knul A I It 1933 Cal. 706 ref.

‑‑S 115‑‑Revisional jurisdiction‑‑Ex parte decree granted by Court at Q being beyond territorial jurisdiction, was set aside and plaint was ordered to be returned to plaintiff, for presentation to Court having jurisdiction

Raja Fayyaz Ahmad for Petitioner. Abdul Samad Dogar for Respondent. Date of hearing: 7th October, 1985.

This revision filed under section 115, C.P.C. is for setting aside an ex parte decree passed in Civil Suit No. 179/Civil of 1982 by the Senior Civil Judge, Quetta that was undefended. The parties are inter‑related. The wife of petitioner is an aunt of Naik Khan Muhammad, the respondent herein and Khan Muhammad s sister is married to the son of the petitioner.

2. A suit for recovery of Rs.15,000 was filed on or about 17‑1‑1981 in the Court of the Senior Civil Judge, Quetta by Naik Khan Muhammad, the plaintiff‑respondent and it was averred that the defendant‑petitioner had obtained a loan of Rs.15,000 through a cheque, dated 25‑10‑1972 drawn from Allied Bank of Pakistan Gojar Khan (in Punjab). This loan was not paid upto 20 2‑1980 when on the intervention of respectables of both the families settled the matter and an agreement between the parties was executed on 20‑2‑1980. According to the terms and conditions of the agreement the defendant /petitioner had agreed to pay the amount within six months i.e. by 19th August, 1980 positively. It was also alleged that the petitioner had left Pakistan and in spite of some letters addressed to him the amount was not paid, hence this suit. In para. 4 of the plaint it was said that:‑

(4) "That the cause of action accrued to the plaintiff on 19‑8‑1980 when the amount according to the duly executed agreement was neither paid nor tendered and lastly a month back when a letter was sent to the defendant, the reply to the same was not received, within the jurisdiction of this Hon'ble Court."

The address of the petitioner on which the service of summons was desired was "C/o 493 Green Lane Small Health B.H. A.M. 10, England". The suit was registered on 2‑2‑1981 and a notice under registered cover was ordered to be issued for 26‑3‑1981, but on that date no service could be effected. The trial Court, therefore. ordered the substituted service through publication in daily newspaper 'Mashriq' of Quetta. This publication was to be effected for 16‑4‑1981. On this date the paper containing the publication was not received in the office of the trial Court, therefore, the publication was ordered for 7‑5‑1981 and on this date since the defendant/petitioner did not put in appearance he was ordered to be proceeded ex parte and the plaintiff was required to file an affidavit which he did and the case was fixed for 30‑5 1981 on which date the ex parte decree was passed. The decree was passed on the basis of an agreement, dated 20‑2‑1980 (Exh. P.1), executed between the parties admittedly at Rawalpindi where at the relevant time the plaintiff /respondent was posted in the Army. The basis for the ex parte order in the words used by the trial Court is: ‑

"Since there is no evidence in rebuttal, therefore, relying on the evidence adduced by the plaintiff the suit of the plaintiff is decreed in the sum of Rs.15,000 with costs against the defendant."

The execution proceedings were taken by the respondent and thereupon the decree was transferred to the Civil Judge Rawalpindi. The Court at Rawalpindi, therefore, issued a summon for 4‑2‑1982. After the receipt of this summon the petitioner made an application in the trial Court at Quetta for setting aside the ex parte decree on 20‑2‑1982. It was contended that the defendant was never served and the mode of service as adopted by the trial Court by ordering the substituted service through publication was not warranted in law, besides it was alleged that the decree holder has furnished incorrect address by concealment of facts in the foreign country though the decree‑holder was aware of the correct and permanent address of the petitioner of District Rawalpindi. It was specifically urged that the decree‑holder has based his suit on a document which purported to have been executed at Rawalpindi, therefore the Court at Quetta had no jurisdiction to adjudge this suit and pass a decree thereon and in this connection it was further pointed out that the defendant's residence was outside the jurisdiction of the Court and no cause of action could be, claimed to have accrued to the plaintiff within the jurisdiction of the trial Court at Quetta. The learned trial Court framed the following issues:‑

(1) Whether the application for setting aside the ex parte decree, dated 30‑5‑1981 is within time

(2) Whether sufficient reasons have been given by the applicant‑JD for setting aside ex parte decree

It is conspicuous that the learned trial Court did not take any notice of the objection to jurisdiction. After having recorded the statements of the witnesses produced by the parties; the learned Senior Civil Judge, Quetta came to the finding that the defendant /petitioner had acquired knowledge of the institution of the suit filed at Quetta on 10‑4‑1981. The cause shown by the petitioner was not found unsatisfac tory, the ex parte decree was maintained and the application for setting aside the same was dismissed on 28‑12‑1983. The matter was carried to the appellate Court by the petitioner but the learned Additional District Judge II, Quetta whom the appeal was referred to for disposal dismissed the appeal. The learned appellate Court after narrating the facts of the case and the contentions and reply of the counsels of the parties without his findings thereon disposed of the appeal in these words:‑

"From the parties arguments and perusal of the record it seems that the appellant had the knowledge about the suit but he deliberately did not appear only just to delay the proceedings. I see no reasons to interfere with the order of lower Court appeal stands rejected."

From the narration of facts given above the undisputed state of facts is that up to 16‑4‑1981 the defendant /petitioner was not issued any summons addressed to him at his address. The notice once issued was not served and there was nothing on record to suggest that the defendant was avoiding service yet the substituted service was ordered and that too in a newspaper published from Quetta for a person residing in England. The observations of the Court that the defendant had acquired the knowledge of the institution of suit on 10‑4‑1981 had no relevance as by that time no summons was ever issued to the defendant at his permanent residence in the Rawalpindi District. The publication in the newspaper was also not made by that time as the publication in a Quetta newspaper was ordered not earlier than on 16 4‑1982. The substituted service could not be ordered in such a situation and it was void being demonstrably false. The provisions of Order V , rule 20 are very clear. This provision reads:‑

"20. Substituted service.‑‑ Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous part of the court‑house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or such other manner as the Court thinks fit."

No compliance of this Rule has been made in the instant case. I am of the considered view that before the substituted service is ordered, it is essential that the requirement of the Rules of the Code referred to above are first complied with. Knowledge of the institution of the suit even derived by the defendant aliunde is not sufficient to dispense with the proper service, of the summons, as envisaged by the rules of the C.P. C. All available steps to effect proper service must be made before resort is had to the substituted service through publication. I am of the considered view that a defendant is entitled to have the ex parte decree set aside against him, if the summons are not duly served, even when the defendant was aware of the institution of the suit against him. Both the Courts below have therefore, erred in law in holding that the knowledge of the defendant /petitioner on 10‑4 1981, even if it is found to be correct, is of any avail to the plaintiff‑respondent. The orders/ judgments of the Courts below on 28‑12‑1983 and 29‑4‑1984 by[ the Senior Civil Judge, Quetta and Additional District Judge 11, Quett la

respectively, therefore, cannot be sustained under law.

The matter does not end here. The significant aspect of the case is that though the petitioner had drawn the attention of the trial Court that the Court at Quetta had no jurisdiction still no heed was paid, and in spite of the specific ground taken in the application for setting aside the ex parte decree and thereafter before the Additional District Judge this aspect of the case has been ignored altogether The judgment, dated 30‑5‑1981 is on the face of it void and without jurisdiction. The inherent lack of jurisdiction is apparent on the face of the record and it does not necessitate any enquiry and determination. I The agreement, dated 20‑2‑1980 executed between the parties at Rawalpindi could not confer any jurisdiction on the Civil Judge, Quetta. I enquired from Mr. Abdul Samad Dogar the learned counsel for the plaintiff respondent as to how the jurisdiction in Civil Judge, Quetta can be claimed, the reply given by him was amazing The learned counsel contended that a letter from Quetta demanding the amount was addressed to the defendant /petitioner and according to the counsel a part of cause of action thus are to the plaintiff at Quetta. The phrase 'cause of action' has not been defined in any statute. Rankin, C.J. in Engineering Supplies Ltd. v. Dhandhania and Co. A I R 1931 Cal. 659 at 662 enunciated the following definition:‑

"The only definition which will work, if it has to be applied to cases of all kinds is the entire set of the facts that gives to an enforceable claim or in the words of Fry, L.J. 'everything which if not proved gives the defendant an immediate right to judgment'. Every fact which is materia to prove to entitle the plaintiff to succeed, every fact which the defendant could have a right to traverse." In Allexander Broult v. Indra Krishina Kaul Williams J. at page 708 referred with approval the following definition of cause of action given by Lord Esher:‑

"Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It does not prove every piece of the evidence which is necessary, to prove each fact every act which is necessary to be proved.

The test in determining whether an allegation forms part of cause of action is whether the plaintiff has to prove the same in order to support his right to judgment of the Court. Every allegation is not part of cause of action unless the plaintiff has to prove the same in order to obtain judgment. Applying this test in the instant case the only thing necessary for the plaintiff to prove was that the defendant had executed the agreement as the plaintiff's right to sue was created by the execution of this agreement. Nothing remained thereafter to clothe the plaintiff with any right/title to the suit and the plaintiff had only to prove this agreement. The cause of action is complete prior to the issuance of the letter from Quetta. The letter, if any, issued from Quetta as contended by the learned counsel for the plaintiff‑respondent is not part of the plaintiff's cause of action .against the defendant, and is of no legal effect. The Civil Judge, Quetta, therefore, could not try the suit as no cause of action accrued within his territorial jurisdiction. The entire proceedings allowed to be taken by the Court at Quetta, therefore, are 'corum non judice' and nullity in law and are liable to be ignored.

For the above reasons I accept this revision, and set aside the impugned orders and direct that the plaint filed by the plaintiff, Naik Khan Muhammad, shall be returned to him for presentation to the Court having jurisdiction. There shall be no order as to costs as the parties

are related to each other.

A. A. Revision accepted.

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