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---O. III, R. 4, 0. V, R. l(2)(6), 0. IX, R. 13 & S.115--Ex parte proceedings--Validity of--Summons issued to defendant returned unserved--Issuance of fresh summons ordered by Court--No summons however, were issued to defendant on appearance of a counsel who undertook to file power of attorney and written statement on next date of hearing--No such power of attorney and written statement were filed by such counsel who subsequently informed Court that he had not been authorized to appear and act--Court ordering ex parte proceedings--Appearing of counsel without authority of party held, was no appearance in the case on behalf of such party--Defendant having not been served, ex parte proceedings taken against him were not competent--Initial act of Court in accepting statement of counsel allowing him to appear in Court, without filing any Wakalatnama was itself an unauthorized act as it was not permissible under law--In view of non-service of summons and unauthorized appearance of counsel in proceedings there was sufficient ground for setting aside ex parte decree--High Court, however, in revisional jurisdiction set aside ex parte decree on payment of costs to plaintiff.

Abdul Matin for Applicant.

Rashid A. Rizvi for Respondent.

Date of hearing: 15th March, 1987.

This order will govern the disposal of Revision Applications Nos. 157 and 158 of 1980, both filed by applicant Muhammad Khan. The following facts are admitted which may be stated here.

2. The respondent instituted a suit for declaration and permanent injunction in the Court of Senior Civil Judge, Nawabshah. Summons were issued to the applicant /defendant in the suit for 25-2-1972 but they were returned unserved. The Court accordingly ordered for issuance of fresh summons to the applicant for 13-3-1972. It is not disputed that before the summons could be issued to the applicant as directed by the learned trial Court on 25-2-1972, an Advocate of Nawabshah namely Muhammad Yaqoob, appeared before the learned Civil Judge on 28-2-1972 and made a statement that he has come to know about pendency of the suit and that he is known to the defendant/ applicant, who is not present, and he may be given time to file the written statement and power on behalf of the defendant. This statement was acted upon by the Court and the case was adjourned from time to time. However, Mr. Muhammad Yakoob, Advocate, neither fled any power on behalf of applicant /defendant nor any written statement and on the contrary on 26-2-1974, he pleaded no instructions in the case. The learned trial Judge accordingly proceeded ex parte against the defendant /applicant and decreed the suit on 30-4-1974. The applicant/ defendant thereafter, moved an application under Order IX, Rule 13, C . P. C . on 6-5-1974 supported by his personal affidavit and affidavit of his real brother Abdullah Khan, asserting that neither any summons nor any notice in the suit was served on him nor he had any knowledge or information about pendency of the above suit. The learned trial Court, however, did not accept the plea of applicant and rejected the application. An appeal against the order of the learned trial Judge also failed. The applicant then filed the Revision Application No. 157 of 1980 challenging the orders of the Courts below. It may be mentioned here that after the suit was decreed ex parte against the defendant/ applicant he also filed a regular appeal challenging the judgment and decree which, too was dismissed and against the dismissal order Revision Application No. 158 of 1980 had been filed in this Court.

The learned counsel for the applicant contends that Mr. Muhammad Yakoob, Advocate, had no authority to appear and act in the case on behalf of applicant without having an express authority from the applicant as required by Order III, Rule 4, C.P.C., and as such the order of learned trial Judge, ordering ex pane proceedings against the applicant without service of summons ooh the applicant was an order in excess of the authority conferred on the Court under the law. The learned counsel for the respondent, on the other hand, contended that as Mr. Muhammad Yakoob, Advocate, had appeared on behalf of applicant in the suit after issuance of summons to applicant/defendant, his appearance was fully authorized in terms of Order V, Rule 1(2)(6) of .C.P.C. and as such when Mr. Yaqoob pleaded no instructions in the case, the trial Court rightly proceeded ex parte against the applicant/defendant. After hearing learned counsel for parties, I am of the view that ex parte proceedings taken against the defendant were not in accordance with the law and as such the decree passed in the case should have been set aside on the application of the defendant, though, in the circumstances of the case, on payment of costs to the plaintiff/ respondent. It is an admitted position, in the case, that the summons, which were issued to the defendant /applicant for 25-2-1972, were returned unserved and the learned trial Judge, after considering the report of the bailiff, directed for issuance of fresh summons to the defendant /applicant for 13-3-1972. It is also not disputed that no summons were issued for 13-3-1972, as in the meantime, Mr. Muhammad Yaqoob, Advocate of that Court, voluntarily appeared before the learned Judge and made a statement that he is authorized by the defendant to appear and act on his behalf in the case. This statement made by Mr. Muhammad Yaqoob was obviously acted upon by the learned Judge, as thereafter, the case was adjourned from time to time at the instance of Mr. Muhammad Yaqoob, when finally he pleaded no instructions in the case. The question, which therefore, arises in the case, is whether the appearance of Mr. Muhammad Yaqoob as a counsel in the case could be treated as a valid appearance in the case so as to give jurisdiction to the trial Court to proceed ex parte in the event of his non-appearance on subsequent dates against the defendant. Order V, Rule 1, sub-rule (2)(b) makes it permissible for a defendant, to whom a summons had been issued under Rule 1 to appear through a pleader A duly instructed and able to answer all material questions relating to the suit. However, the provision of Order V, Rule 1, C.P.C. is to be read alongwith Order III Rule 4, C . P. C., which makes it incumbent on a pleader, before he could appear and act on behalf of a party in the case, to file his appointment in Court, which should be in writing by the person, on whose behalf he puts his appearance. It is not in dispute in the present case that neither Mr. Muhammad Yaqoob filed any power in the Court nor there was any material available on the record to show that he was so authorized by the defendant in the case. In fact the defendant filed his own affidavit and the affidavit of his brother, in which it was clearly asserted that neither the summons in the suit were served on him i.e. the defendant /applicant nor the defendant/applicant had any knowledge about the institution of the suit. No counter-affidavit to the application under Order IX, Rule 13, C.P.C. was filed and in the circumstances of the case, the statement made on oath both by the applicant /defendant and supported by another affidavit by the brother of the defendant /applicant was unrebutted, This statement, coupled with the fact that Mr. Muhammad Yaqoob had appeared in the case without having any written authorization on behalf of the defendant /applicant to appear and act in the case, was sufficient ground to set aside the decree passed ex parte against the applicant/ defendant. It may be stated here that the initial act of the Court in accepting the statement of Mr. Muhammad Yaqoob allowing him to appear in the case without filing any Vakalatnama was itself an unauthorized act, as it was neither permissible under Order III, Rule 4, C.P.C. nor under any other provision of Code of Civil Procedure. The Court at the time of acceptance of the appearance of Mr. Muhammad Yaqoob should have insisted for production of a written authorization from the applicant /defendant in favour of Mr. Muhammad Yaqoob, especially, in the circumstances of the case, when on 25-2-1972 the Court took view that the summons issued to the defendant were returned unserved and the Court had not issued fresh summons in spite of the order for issuance of such summons to the defendant for 13-3-1972. I am, therefore, of the view that there was sufficient ground for setting aside the decree against the defendant /applicant, but in the circumstances of the case, the Court should have set aside the decree on payment of costs, as for two years Mr. Muhammad Yaqoob continued to appear in the case without any proper authorization and he was engaged by the applicant after the suit was decreed ex parte. I accordingly accept this revision application, set aside the orders of the two Courts below on the condition of payment of Rs.1,000 as costs to be paid by the applicant /defendant to the respondent/ plaintiff. The result will be that the ex parte decree passed against the applicant by the trial Court is set aside with the consequence that the Civil Revision Application No. 158 of 1980 filed by the applicant is also allowed. The case is remanded to the trial Court with the direction to proceed with it in accordance with law. The defendant /applicant is directed to appear before the trial Court on 7-4-1987, on which date he shall file the written statement and thereafter the trial Court will proceed with the case as expeditiously as possible, as the suit was instituted in the year, 1972.