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Revision Application No.78 of 1979, decided on 1st January, 1987.

‑‑‑S. 105 & 0. IX, R. 13‑‑Remand order‑‑Appellate Court's finding in remand order that application for setting aside ex parte decree was within time‑‑Such finding having not been challenged in appeal, held, could not be challenged subsequently‑‑Remand order being appealable, non‑filing of appeal against such order, would conclude the matter.

‑‑‑S. 105 & 0. XLI, R. 23‑‑Remand order, effect of‑‑Remand order by First Appellate Court, held, was a finding in intermediate stage of same litigation‑‑When such order came to Trial Court and escalated to First Appellate Court, it remained the same litigation.

‑‑‑0. IX, R. 13‑‑Ex parte decree‑‑Duty of Court‑‑Word "duly" connotation of‑‑Due service of summons‑‑Meaning and scope‑‑Duty of Court is to administer justice in accordance with law‑‑Courts are required not to exercise punitive jurisdiction by declaring defendant ex parte‑‑Courts would ordinarily be inclined to set aside ex parte decree unless there had been gross negligence on part of the party because Courts were for advancement of justice and ordinarily would not be inclined to deprive a litigant of his right‑‑Ex parte decree would be set aside where Court finds that defendant was not duly served‑‑Word "duly" in O.IX, R.13, C.P.C. was not equivalent to "personally"‑‑Court was required to find out whether defendant was duly served or not, on evidence of parties, and give parties opportunity to lead evidence‑‑Due service of summons would comprise apart from tendering, a copy of notice, reading and explaining contents thereof for cognizance of a party as to factum of pending litigation; Court in which same was pending and the date to which said litigation was posted‑‑Indirect knowledge of defendant about pending litigation was irrelevant for purpose of determining sufficiency of service‑‑Where defendant was shown to have no knowledge of the suit or decree, he could be taken to have shown sufficient cause for non‑appearance, so as to enable him to invoke 0 IX, R.13, C.P.C.

‑‑‑‑S. 115 & 0. IX, R. 13‑‑Ex parte decree, setting aside of‑‑Where suit was for dissolution of partnership and rendition of accounts in a property of substantial value, ex parte decree relating to such property was ale aside by High Court in exercise of revidional jurisdiction.

Abdul Sattar Memon for Applicant.

Syed Ahmed Farooquifor Respondent.

Dates of hearing: 2nd, 10th, 17th, September and 1st Octobe 1986

This Revision Application is directed against the Judgment dated 18‑11‑1978 and decree dated 27‑i1‑1978 passed by the Vtth Additional District Judge, Karachi affirming the order dated 30‑4‑1978 passed by XXth Civil Judge, Karachi, whereby he dismissed the application for setting aside ex parte decree.

The facts leading to the filing of the above Revision are that the plaint in suit No.1707 of 1975 was filed by the plaintiff /respondent for dissolution of partnership and rendition of accounts against the petitioner /defendant. It is the case of the Petitioner that he is the sole proprietor of Mohammad Ibrahim Match Factory situated on Plot No. 220‑A, Sector 27, Korangi Industrial Area, Karachi. It is the case of the petitioner that one Mehboob Ali Shah (husband of the respondent) an employee of the Industrial Department, Government of Sind, was known to the petitioner since long time. The said Mehboob Ali Shah used to go off and on in connection with his (petitioner's) Match Factory. The said Mehboob Ali Shah during his conversations and meetings with the petitioner won over the petitioner's confidence and represented to the petitioner that for regularising Match Factory certain documents were to be signed and therefore the said Mehboob Ali Shah obtained the Petitioner's signatures on certain stamp papers as well as blank papers. The respondent presented the above suit which was admitted on 30‑7‑1975 and ordered issuance of summons for 11‑8‑1975. The bailiff went to the place for service on 2‑8‑1975 and stated in his report that the petitioner refused to accept the summons, as such he pasted the summons. The registered letter was received by Mohammad Umar on 5‑8‑1975. The suit was adjourned to 11‑8‑1975 and thereafter the suit was adjourned to 15‑8‑1975. The preliminary decree was passed on 15‑8‑1975.

The petitioner filed an application under Order IX, Rule 13, C.P.C. on 5‑12‑1975. The petitioner filed his own affidavit in support of the application wherein he stated that his factory was sealed in his absence in the middle of Ramazanul Mubarik. The petitioner further stated that he made enquiries but he could not succeed till 26‑11‑1975 when he came to the Court to attend another suit bearing No.1957/75 by one Fareeda against him in the Court. He came to know that one Mehmooda filed suit against him. As stated earlier, he presented the application on 5‑12‑1975. The respondent filed counter‑affidavit. The respondent stated that the petitioner was aware of his case and the receiver informed his family members.

The learned Civil Judge after taking into consideration the arguments of the learned counsel for the parties dismissed the application by order dated 23‑12‑1975 on the ground of limitation.

The petitioner above named being aggrieved against the order dated 23‑12‑1975 of Civil Judge, Karachi, filed Misc. Appeal No.14 of 1976 in the court of District Judge, Karachi which was ultimately transferred to the Court of Vth Additional District Judge, Karachi. The Vth Additional District Judge allowed the appeal by his judgment dated 15‑7‑1976 and set aside the order dated 23‑12‑1975 and remitted the case to the trial Court for disposal of application in accordance with law. After remand, the XXth Civil Judge, Karachi dismissed the application. The defendant‑petitioner took the matter in appeal. The learned Vth Additional District Judge, Karachi confirmed the order, hence the Revision.

Mr. Abdul Sattar Memon, the learned counsel for the petitioner has contended that the, parties are governed by the remand order. The only question open for consideration was the one directed to be considered in the remand order. In the absence of an appeal against the remand order, the respondent cannot reagitate the question that the Petitioner acquired the knowledge when the factory was sealed and if it is to be conceded for arguments sake, the remand order proceeded on question that there was no sufficient evidence on record.

On the other hand Mr. Syed Ahmed Farooqi, the learned counsel for the respondent has submitted that the appellate court remitted the application for disposal in accordance with law and the Civil Judge as well as the appellate court were competent to decide the application, both on the question of limitation as well as on merits.

Before considering the question of law raised, it is necessary to understand the scope of the remand order. Before the learned Additional District Judge, it was contended that the period for filing an application to set aside an ex parte decree is 30 days from the date of the decree or in case summons were not duly served, from the date of knowledge. It is the case of the petitioner that he came to know about the decree with details on 26‑11‑1975, his application was within time and ought to have been considered on merits. It was contended by the learned counsel for the respondent that the summons were offered to the petitioner on 2‑8‑1975 in presence of two witnesses and it was declined by him. The service was also effected on Mohammad Umar and subsequently the factory was scald and it 15 impossible for the petitioner that tie could not have known the Authority under the orders of which the factory was sealed. His submission was that the service was good and effective against the appellant. After considering these rival contentions on disputed facts, the learned Additional District Judge held that "the Civil Judge should have given an opportunity to the parties to lead evidence arid prove knowledge of the decree to the appellant on a particular date. If, however, the parties chose to proceed on the material on record, in my opinion, there was no material to conclusively prove that the appellant was in knowledge of the specific decree with all the particulars mentioned above before 26‑11‑1975. The application for setting aside the ex parte decree was, therefore, within limitation".

In the concluding paragraph, the learned Additional District Judge held as follows:‑

"For the foregoing reasons, this appeal is accepted and the impugned order is set aside with no order as to costs. The case is remitted to lower court for disposal of application in accordance with law."

The learned counsel for the petitioner before me submits that the short question that the trial Judge should have considered, had been clearly set out in the remand order. In other words, the trial Judge was directed only to dispose of that application in accordance with law. If the answer to the direction is against the defendant/petitioner, the necessary consequence was the dismissal of the application. The trial Judge understood the remand order thus:‑

"It must be mentioned that in accordance with the observations of the Hon'ble Additional District Judge and in the interests of justice and truth, plaintiff's application under Order XIX Rule 2 CPC for cross‑examination of defendant in respect of his affidavit in support of the present application was allowed by this court and the latter's statement was recorded."

"Thus, keeping in view the provisions of Order V Rule 13 and Order V Rule 15 as well as those of Order V Rule 10‑A(2), C . P. C . , this court holds that service was correctly held good on 15‑8‑1975 upon the defendant and he has not at all shown sufficient cause why he was not present on the due date of hearing, since the onus was on him to prove lack of knowledge A I R 1938 Calcutta 535."

"This court holds that in view of the finding made in (1) above, the defendant did commit gross, almost amounting to wilful, negligence and the only purpose behind attempting to evade service of summons on him was to escape the demands of justice, whatever they may have been."

The trial court dismissed the application.

In appeal the same question were raised by the petitioner/ defendant challenging the order passed by the trial court. The appellate Judge considered the facts and circumstances of the case and came to the conclusion that the order of the Civil Judge was correct and hence dismissed the appeal with costs.

I will examine the correctness of the contention raised before me regarding the remand order and its effects on the case. The remand order had clearly stated that there was no material to' conclusively prove that the petitioner was in the knowledge of the specific decree with all the particulars mentioned above before 26‑11‑1975. The application for setting aside the ex parte decree was, therefore, within limitation. The remand order directs the application was to be disposed of on merits. Can the respondent/ plaintiff now turn round and request the court to reopen the question whether the petitioner/defendant acquired the knowledge prior to 26‑11‑1975 either on 16‑8‑1975 or in middle of Ramazanul Mubarik (September 1975) when the factory was sealed This is what thel respondents' counsel attempts to do.

Section 105(2), C. P. C. governs such cases. It reads: "105 (1) ..........................

(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness."

The order of remand could have been appealed against Order 43. In appeal, it could be set aside, if there are valid grounds. The direction contained in the appellate judgment was that the application was within time and the application should be disposed of in accordance with law. The plaintiff /respondent did not file any appeal. He cannot question the remand order now when the matter comes before the appellate court in the second round. The question whether the petitioner /defendant acquired the knowledge prior to 25‑11‑1975 or not, could have been gone into by this court in an appeal under section 105 (1) CPC against the remand order by respondent/ plaintiff. Not having done, so the remand order should be deemed to conclude this question against the respondent /plaintiff. The remand order by the Additional District Judge is a finding in an intermediate stage of the same litigation. When it came to the trial Court and escalated to the Additional District Judge, it remained the same litigation.

The duty of the court is to administer justice in accordance with law. The Court ought not to excise a punitive jurisdiction by declaring the defendant ex parte, Courts would ordinarily be inclined to set aside ex parte decree unless there has been gross negligence D on the part of the party because the courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right. Lord Thankerton clearly laid down in Srimivas Prasad Singh v. Keshava Prasad Singh (A I R 1936 PC 9 at P.13) as' follows: ‑

"Every litigant has the right to have his case heard and disposed of, but that right must n' t be abused, even though the defendant, for reasons of his own, is not anxious to complain of the plaintiff's delay. But the court is not entitled to deprive the litigant of his right, except on clearly ascertained grounds, and to the exclusion of grounds which rest only on suspicion."

The court will set aside the ex parte decree if it finds that the defendant was not duly served. Whether the defendant was duly served or not, the court must find it on evidence and give parties opportunity to lead evidence. The word 'duly' in Order IX Rule 13, C.P.C. is not equivalent to 'personally'. Due service of summons comprises of, apart from tendering a copy of the notice, reading and explaining the contents thereof for the cognizance of a party as to the factum of pending litigation the court in which it is pending and the date to which the said litigation is posted. The indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of or refusal to receive the summons. A vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant /petitioner had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular relief/sum. Therefore, if the defendant/ petitioner is shown to have no knowledge of the suit or the decree he can be taken to have shown sufficent cause for non‑appearance, so as to enable him to invoke Order IX, Rule 13, C.P.C.

The learned counsel for the respondent /plaintiff pointed outs that the petitioner has been duly served. I am of the view that a vague knowledge about certain proceedings is not enough for the limitation to operate and that a specific knowledge that a particular decree has been passed against him in a particular Court and for a particular relief/sum has to be attributed to the defendant /petitioner so as to say that he had much knowledge 30 days before the date of the application. The learned lower Courts should have also taken note of the fact that the suit was for dissolution and rendition of accounts in a factory of substantial value comprising of factory premises etc.

In this view of the matter the orders of the trial Court and the Judgment of the appellate Court dismissing the application for setting aside ex parte decree are liable to be set aside and it is ordered accordingly.

It is unfortunate that both the Courts refused to set aside ex parte decree and the suit is to be tried afresh after lapse of eleven years. If only the trial Court had set aside the ex parte decree ii would have been disposed of on merits long ago.

For the aforesaid reasons the Revision application is allowed: and the orders/Judgment of the Court below are set aside and the suit is directed to be disposed of as expeditiously as possible. R & Ps: should be sent back to District Judge (East), Karachi, within one week and both the parties are directed to present themselves before District Judge (East), Karachi on 17‑1‑1987 for the purpose of allocation of the suit to the Senior Civil Judge and the District Judge would also give a date of hearing to the parties before the Senior Civil Judge so that the Senior Civil Judge could decide the case within six months of the first hearing before him. The Senior Civil Judge is directed to decide the suit after allowing parties toll adduce evidence. I am directing the Petitioner to file his written statement on 17‑1‑1987.

There shall be no order as to costs of the present Revision Petition.

A . A . / M‑115 / K Revision allowed.

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