Sunday, 19 October 2014

Ex-Parte Proceedings in absence of necessary party

PLJ 2014 Peshawar 19
Present: Ikramullah Khan, J.
GOVERNMENT OF KHYBER PAKHTUNKHWA and others--Petitioners
versus
MUHAMMAD ANWAR KHAN--Respondent
C.R. No. 1758 of 2010, decided on 3.10.2013.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13--Ex-parte decree--Summon was not duly served on--Application before execution Court for setting aside exparte decree--Question of--Whether summons were duly served on petitioners for the date when suit was fixed for hearing--Validity--High Court has to see that whether civil judge had brought on record the report of the process server or any other competent official that petitioners were duly served--Neither original report endorsed thereon the notices issued against petitioners had duly exhibited during course of evidence on application of the petitioners, nor statement of the Court official had recorded by trial Court to ascertain factum of service of summons on petitioners--Courts below had deprived petitioners of relief prayed for only on ground that a written statement was submitted on behalf of petitioner and duly authorized representative had marked its attendance in the suit--Revision was allowed.            [P. 23] A & B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVII, R. 1--Written statement was filed by an advocate as special Govt. pleader not verified by any person duly authorized by Government--Validity--Though Government pleader or any other special Govt. pleader acting under direction of Govt. Pleader may sign and verify any pleadings on behalf of Govt. but in instant case, provincial Govt. had not been made party to the suit and Govt. had not sanction defence of the suit through proper Notification and as such special Govt. pleader was not authorized by rules to submit a written statement on behalf of petitioners--All such kind of pleadings signed or verified by a special public pleader without expressed authorization by the Govt. shall not be treated as pleading on behalf of Govt.        [P. 23] C & D
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 10 & O. XXVII, R. 79--Not made necessary party--Ex-parte in suit on the date which was not fixed for hearing--Validity--Civil Judge was its bounded duty to implead Government thereunder Order 1, Rule 10, CPC while exercising its suo moto power--When case was not fixed for hearing in the suit, no exparte proceeding shall be ordered and all subsequent proceeding conducted against petitioners which culminated into exparte decree was nullity in the eyes of law in its very inception an enunciated in judgment in 2011 CLC 421.           [P. 25] E & F
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Ex-parte decree--Limitation--No limitation is provided thereunder provisions of Limitation Act for setting aside a void order, since provisions of Art. 181 of Act be applied therewith keeping in view peculiar circumstances and as such could be challenged within period of 3 years--Revision was allowed.            [P. 25] G
Mr. Arshad Ahmad Khan, DAG for Petitioner.
Mr. Muhammad Ajmal Khan, Advocate for Respondent.
Date of hearing: 3.10.2013.
Judgment
Through the instant civil revision filed thereunder the provisions of Section 115, CPC 1908, the petitioners have challenged the impugned judgment dated 31.05.2010, rendered thereof by the learned Additional District Judge, Mardan, whereby the appeal preferred thereof by the petitioners against the judgment of the learned Civil Judge, Mardan dated 23.11.2009 was dismissed.
2.  The precisely stated facts of the case, which constrained the petitioners to file the instant revision petition, are that respondent/plaintiff instituted a civil suit for possession and permanent injunction against the petitioners in regard to the suit property duly mentioned therein the heading of the plaint with specification of survey numbers and measurement thereof.
3.  Petitioners, being defendants therein the instituted suit were served with notice by the learned Civil Judge, who appeared in the trial Court and marked their attendance on the date fixed for the purpose but lateron absented themselves and as such an exparte proceeding was ordered against the petitioners which, culminated into an exparte decree against the petitioners.
4.  The respondent, thereafter filed an execution petition against the petitioners in order to execute the exparte decree dated 29.09.2007.
5.  Petitioners appeared thereof before the executing Court and preferred an application before the executing Court there under the provisions of Order IX, Rule 13 in order to set aside the decree passed against the petitioners on account of default.
6.  The respondent contested the said application and the learned Civil Judge, Mardan thereafter giving opportunity of hearing to both the parties, dismissed the application vide its judgment dated 23.11.2009. The appeal against the afore-stated judgment filed thereof by the petitioners before the Appellate Court was also dismissed by the learned Additional District Judge, Mardan, vide its impugned judgment dated 31.05.2010. Being aggrieved and dissatisfied of both the judgments delivered thereof by both the Courts below, petitioners have filed the instant revision petition for redressal of their grievance, before this Court.
7.  The learned Additional Advocate General representing the petitioners, contended thereof that, both the Courts below erred in law while passing its impugned judgments as the law on the subject is misinterpreted; that the petitioners were not duly served in regard to the pending suit filed by respondent; that the Law Officer (SGP) had filed written statement on behalf of the petitioners without informing the department and was not authorized thereunder the law to file pleadings on behalf of the petitioners without prior permission in this regard; that the so called representative have not been authorized by the petitioners to attend the Court; that both the Courts below have not read the evidence brought on record in matter to set aside the exparte decree and had rendered their judgments based on misreading and nonreading, that the Court was bound to give reference to the Revenue Record, even though placed on record in absence of the petitioners; that respondent is neither owners in the suit property nor it had brought on record that which is the exact survey number of the already constructed Government School, and as such both the Courts below have committed gross illegality and irregularity while passing judgment against the petitioners; that the necessary party the Government of Khyber Pakhtunkhwa had not been impleaded in the case in the panel of defendants as such no effective decree could be passed against the property owned by the Government of Khyber Pakhtunkhwa, as such the impugned judgment is not sustainable, may be set aside.
8.  On the other hand, the learned counsel for the respondent argued that the period of limitation provided thereunder Article 164 of the Limitation Act, 1908, prescribed 30-days to set aside a decree passed exparte against a defendant in the suit, while the application moved therein before the learned Civil Court by the petitioners was hopelessly time barred; that petitioners failed to substantiate their plea of non service of the notice upon them through cogent, reliable evidence; that the duly appointed Law Officer not only made appearance in the case but also submitted written statement on behalf of the petitioners and petitioners could not be allowed at this revisional stage to raise a new ground not agitated in the memorandum of appeal and therein the trial Court.
9.  I anxiously gave consideration to the argument delivered thereof by both the learned counsel for the parties, carefully and scrupulously perused the available record.
10.  The provisions of Order IX, Rule 13, CPC 1908, provides thereof that a decree passed exparte against a defendant may be set aside by the Court that the summon, was not duly served on or, that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
11.  The period provided thereunder Article 164 of the Limitation Act, 1908, for setting aside a decree passed exparte against a person is 30-days, from the date of the decree or, where the summons were not duly served when the applicant acquires knowledge of the decree (subject to exclusion of time provided thereunder Section 5 by the Act).
12.  The only crucial point which has to be answered herein which had also been raised by the petitioners in their application, preferred thereto the learned Civil Judge under Order IX, Rule 13, CPC 1908, is that whether summons were duly served on the petitioners, for the date when the suit was fixed for hearing.
13.  Without dilating upon the construction of the word "Hearing" specifically termed thereunder Rule 13 of Order IX CPC 1908. This Court  has  to  see  that  whether respondent  or  the  learned  Civil Judge had brought on record the report of the process server or any other competent official in this regard that petitioners were duly served. As evident from record neither the original report endorsed thereon the notices issued against the petitioners had duly exhibited during course of evidence on the application of the petitioners, nor the statement of the concern Court official had recorded by the earned trial Court to, ascertain the factum of service of summons on the petitioners.
14.  Both the Courts below have deprived the petitioners of the relief prayed for only on the ground that a written statement was submitted on behalf of petitioners and whereafter a duly authorized representative had marked its attendance in the suit. But the learned trial Court did not discharge its obligation in this regard to bring on record the authority letter (if any) on the basis of which the person, who claimed himself as representative of the petitioners and also marked his attendance in the Court.
15.  The written statement filed by an advocate, pretended himself as a Special Government Pleader, could be considered as a written statement on behalf of petitioners in terms of Order XXVII CPC 1908, presented before the Court would be the mute question to be answered herein after but, in this regard it would be not out of context to reproduce here as under, the provisions of Order XXVII, Rule I, CPC 1908:--
"Rule I; - [Suits by or against government---in any suit by or against [the Government], the plaint or written statement shall be signed by such person as (Government) may, by general or special order, appoint in this behalf, and shall be verified by any person whom (the Government) may so appoint and who is acquainted with the facts of the case".
16.  The written statement submitted by the learned SGP has not been verified by any person duly authorized by the Government or the petitioners.
17.  Though Government pleader or any other Special Government Pleader acting under the direction of the Government pleader may sign and verify any pleadings on behalf of the Government but in the present case, the Provincial Government had not been made party to the suit and the Government had not sanction the defence of the suit through proper Notification in this regard and as such the Special Government Pleader was not authorized by rules to submit a written statement on behalf of the petitioners. All such kind of pleadings signed or verified by a Special Public Pleader without expressed authorization by the concern Government shall not be treated as pleadings on behalf of the Government.
18.  As petitioners does not fall within the definition of Government and any judgment, order or decree passed in regard to any property owned, possessed by the Provincial or Central Government without making them as a party into the suit, shall be void ab-initio and shall not be allowed to be executed against the Government.
19.  The provisions of Section 79 and Order XXVII of the CPC 1908 in unequivocal terms define that in case, where the interest of a Government is under challenge, the Provincial or Central Government as the case may be, shall be made party to the lis. In this regard for more elaboration, Section 79 is reproduced hereas under;--
"79. Suits by or against the Government.--In a suit by or against the Government the authority to be named as plaintiff or defendant as the case may be, shall be--
(a)        in the case of a suit by or against the Federal Government, Pakistan;
(b)        in the case of a suit by or against a Provincial Government, the Province.
20.  The Apex Court in case of "Government of Balochistan and others versus Nawab Zada Mir Tariq Hussain Magsi and others" (2010 SCMR 115) has held as:--
"The above reproduced section has been couched in a simple and plain language and there is hardly any need for its scholarly interpretation and it simply provides that a suit instituted against the Government, the authority to be named as defendant would be the Federal Government of Pakistan or Province concerned as the case may be. No suit can be filed against Provincial Government without impleading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable".
21.  From the bare reading of the plaint, filed by the respondent in the Court of learned Civil Judge, Mardan, it clearly manifest that Govern of NWFP (now Khyber Pakhtunkhwa) was not specifically made party as per the mandatory provisions of Section 79 or Order XXVII of the CPC 1908.
22.  There is no proof all available on record, the Petitioner No. 4, who was the Administrative Head of the Education Department had ever been served with any notice in the suit.
23.  The suit property which was admittedly a school building constructed by the Government of NWFP (now Khyber Pakhtunkhwa) was the ownership of the Government of Khyber Pakhtunkhwa, as such the learned Civil Judge was under its bounded duty to implead the Government of NWFP (now Khyber Pakhtunkhwa) thereunder Order I Rule 10, CPC 1908, while exercising its suo moto power.
24.  The petitioners were placed exparte in the suit, on the date which was not fixed for hearing but for some other collateral purposes as deducible from the order sheet of the trial Court.
25.  In such a situation, when the case was not fixed for hearing, in the suit, no exparte proceeding shall be ordered and all the subsequent proceeding conducted against the petitioners which culminated into exparte decree was nullity in the eye of law in its very inception as enunciated in the judgment of the Hon'ble Gilgit Baltistan Chief Court in case of Wali Khan versus Mst Khush Begum (2011 CLC 421).
26.  Though expected from every Hon'ble Judge that all laws of the land shall be born on his robe, but the learned Civil Judge, ignored the mandatory provisions of law while placing the petitioners exparte and thereafter passed an exparte decree against the petitioners.
27.  No limitation is provided thereunder the provisions of Limitation Act, 1908, for setting aside a void order, since the provisions of Article 181 of the Limitation Act, 1908, be applied therewith keeping in view the peculiar circumstances of the case and as such, could be challenged within a period of 3 years.
28.  As discussed hereinabove, both the impugned judgment passed by both the Courts below are not sustainable, being rendered thereof in a cursory manner, which had seriously effected the merit of the case and such illegality and irregularity are not curable except to set aside both the impugned judgments. This civil revision is allowed and the impugned judgments dated 31.05.2010 and 23.11.2009 passed by the learned Additional District Judge and Civil Judge, Mardan, respectively are set aside and consequently the impugned decree dated 29.09.2007, passed by the learned Civil Judge, Mardan, is accordingly set aside too. Parties are directed to appear before the learned Civil Judge, Mardan for further proceeding in the suit, with permission to the respondent to implead the Government of Khyber Pakhtunkhwa through an amendment in its pleading.
(R.A.)  Revision allowed

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