2010 Y L R 2868
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Miss ASMA GULISTAN ---Appellant
Versus
TARAQ EE FOUNDATION through Chief Executive ---Respondent
Civil Miscellaneous Appeal No. 33 of 2009, decided on 14th January, 2010.
Civil Procedure Code (V of 1908) ---
----O. VII, R.2, O.IX, R.13 & O. XLIII, R.1(c)(d) ---Suit for recovery of amount --Ex parte
decree ---Application for setting aside of ex parte decree ---Defendant having failed to appear
before the Trial Court despite publication, she was proceeded ex parte and the Trial Court
decreed suit of the plaintiff against defendant, ex parte ---Defe ndant filed application for
setting aside ex parte decree after lapse of 10 months under O.IX, R.13, C.P.C. along with
application for condonation of delay under S.5 of Limitation Act, 1908 ---Said application had
been dismissed by the Trial Court being dev oid of merits ---Validity ---Negligence on part of
counsel for the defendant was no ground for condonation of delay ---Defendant who slept
over her own rights, had to bear the consequences --Trial Court had come to the right
conclusion keeping in view the mate rial on record ---As the defendant had failed to establish
her contention about her absence and further no ground for condonation of delay occurred in
filing of application, was established by her, her application under O.IX, R.13, C.P.C. was
rightly reject ed by the Trial Court, which required no interference ---Appeal was dismissed.
Sundar Dass for Appellant.
Obaidullah Qureshi for Respondent.
Date of hearing: Ist October, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellant be ing aggrieved of order dated 16 -9-
2009, and ex parte judgment dated 24 -11-2008 made by the Court of Senior Civil Judge,
Quetta, preferred present appeal on grounds that both the orders are contrary to law and facts,
the objections raised by her in written statement were not properly decided by the trial Court.
No proper opportunity was provided to her to contest the proceedings, rather she was
declared ex parte. Despite the fact that no reliable evidence was produced by the plaintiff the
suit was decreed. T he trial Court did not consider the actual controversy between the parties.
It is further her contention that as she had joined services in UNO and working as Social
Mobilizer at Loralai and Killa Saifullah, she was under impression that her counsel is
conducting the proceedings, she had no knowledge about the proceedings and passing of
decree. She only came to know about the same when she received summons during execution
proceedings. Her non -appearance is neither intentional nor deliberate. She has prayed for
setting aside of both the impugned orders.
The learned counsel for the parties are heard, while the record is perused. The main
contention raised by the counsel for the appellant was that the case is required to be remanded
to the trial Court for adjudication and decision on merits, as the objections raised in written
statement are not considered by the trial Court while decreeing the suit. The learned counsel
also relied on provisions of Order IX, Rule 13, C.P.C. and Order V, Rule 17, C.P.C.
Respo ndent's counsel in rebuttal urged that negligence is at the part of the appellant, while
the application filed by her for setting aside of ex parte decree was time -barred. She was
served through publication in newspaper. No reasonable cause is shown for se tting aside of
impugned orders.
As per record a suit for recovery of amount of Rs.11,96,207 was filed by the
respondent/plaintiff against the appellant/ defendant, as she being its employee involved in
embezzlement of the amount, indulged in misappropr iation of funds, abuse her position as
Credit Officer. Further, despite admission she failed to pay back the outstanding amount. The
appellant/defendant contested the matter, while raised several objections on maintainability
of the suit. She denied any so rt of liability on her part. Out of pleadings of the parties issues
were framed. Thereafter, through order dated 6 -9-2005 the suit was dismissed being not filed
by the authorized person. This order was set aside by this Court through order made on 18 -9-
2007; the case was remanded to the trial Court for decision after providing opportunity of
being heard both the parties. On remand the appellant/defendant failed to appear before the
trial Court despite publication, therefore, she was proceeded ex parte throu gh order dated 17 -
9-2008. The trial Court decreed the suit through order made on 24 -11-2008, whereby the A
appellant/defendant was directed to pay the amount of Rs.11,96,207 to the plaintiff/
respondent. Whereafter, the appellant/ defendant filed an applic ation under Order IX, Rule
13, C.P.C. for setting aside of ex parte judgment dated 24 -11-2008 along with application
under section 5 of Limitation Act. The applications were contested by the respondent /
plaintiff on merits as well as on legal grounds. The trial A Court after hearing the parties
dismissed the application through order made on 16 -9-2009, being devoid of merits. Being
aggrieved of the same the appellant/ defendant filed instant appeal, seeking setting aside of
both the orders dated 24 -11-2008 and 16 -9-2009.
As per record, the suit was initially dismissed being not maintainable under Order XXIX,
Rule 1, C.P.C. through order made on 6 -9-2005. On appeal this order was set aside by this
Court through order dated 18 -9-2007, while the case was r emanded to be decided on merits.
It is further apparent from record that after remand of the case due to non -appearance, the
appellant / defendant was proceeded ex parte, whereafter, the suit was decreed in favour of
the respondent/plaintiff through order dated 24 -11-2008. The appellant/ defendant
approached the trial Court for setting aside of the decree made ex parte against her and
prayed for opportunity to contest the suit. But her application was rejected through order
made on 16 -9-2009. Both these ord ers are impugned in present appeal. Though the appellant
has challenged this order, whereby decree was made, but before touching merits of the case,
the legality of order dated 16 -9-2009 is to be seen, whereafter, the ex parte judgment and
decree made by t he trial Court comes into consideration.
It is an admitted position that on remand of the case in pursuance of order made on 18 -9-2007
by this Court, the proceedings were started in the trial Court. It is mentioned in order dated
24-11-2008 that the ap pellant/defendant failed to appear despite publication in newspaper,
thus proceeded ex parte. Thereafter, she filed application for setting aside of ex parte
order/decree, that too after lapse of provided period, with application for condonation of
delay. This application was rejected by the trial Court through order dated 16 -9-2009,
presently impugned before this Court. As per appellant the reason for her non -appearance
before the trial Court was that as she joined service in UNO as Social Mobilizer at Lor alai
and District Killa Saifullah, while she was under impression that her counsel is contesting the
proceedings, she was further not in knowledge of decree passed against her by the trial Court,
nor informed by her counsel, she came to know about this fac t only when she received
summons during execution proceedings. It is her contention that her application was wrongly
dismissed, while the Trial Court was bound to frame issues, then provide opportunity to
produce evidence, whereafter, decide the case on me rits, but the trial Court failed to do so.
The learned counsel for the appellant during course of arguments strongly contended that the
provisions of Order IX, Rule 13, C.P.C. and Order V, Rule 17, C.P.C. are not observed by the
trial Court while deciding the case/application. Order V, Rule 17, C.P.C. provides the
procedure, which is required to be adopted when the defendant refuses to accept service or
cannot be found, thereby affixation of copy of summons on residence or place of business of
the defendant is required to be made. As per contents of impugned orders on remand of the
case before commencing of proceedings the notices were issued for counsel for the parties,
but her counsel refused to receive the notice on the pretext that she had taken away the file,
whereupon notice was again issued on her given address, but the same returned unserved
with report that she has shifted to some place else after selling the house. Whereafter, notice
was published in a daily newspaper, despite the same she failed to appear. Though, in view of
record, strict compliance of Rule 17 of Order V, C.P.C. is not made at initial stage, but the
appellant/defendant was served through publication in newspaper, which is also a legal mode
of service as provided in Rule 20(e) of sa me Order, which is deemed to be effected as if it
had been made on the defendant personally. Publication in press thus a legal way of service,
as such she was legally served by the trial Court during course of trial, thus the contention
raised by the learn ed counsel has no weight. It is further observed by the trial Court in order
made on 16 -6-2009 that during course of trial she refused to receive the summons on address,
but on same address as per her own assertions she came to know about the ex parte judg ment.
The perusal of record reveals that in plaint the address of the appellant/defendant is
mentioned as H.No.H22 -1/4 Usman Ghani Town, Jan Muhammad Road, Quetta. In her
written statement she did not contest the same, she was served on same address after
institution of suit, she appeared before the Court and participated in the proceedings. Even in
her application under Order, IX, Rule 13, C.P.C. she mentioned the same address in affidavit
attached with the application. Her address is the same in her power of attorney present on
record. The notice issued in respect of execution of decree also bears the same address, which
was admittedly served upon the appellant/ defendant. The contention of the appellant that she
had no knowledge while no opportunity was g iven to her has less weight, as she had the
knowledge about pendency of the suit against her, she also contested the matter before this
Court, thus had the knowledge of order, dated 18 -9-2007, whereby the case was remanded for
trial afresh. She was again p roperly served by the trial Court after remand, but she failed to
appear and participate in the proceedings. She may have been serving outside Quetta, but it is
an admitted position that her permanent address is of Quetta and she resides there with her
family. As per record she, despite, having knowledge avoided to appear, rather she
approached the Court when she came to know about the proceedings in respect of execution
of decree.
Furthermore, the judgment / decree was made by the trial Court on 24 -11-2008, while she
approached the Court by way of filing application for setting aside of the same after lapse of
ten months as per impugned order. The provided period for filing such application is 30 days
from the date of decree, or in other case from date of knowledge. As per order dated 16 -9-
2009 the appellant filed application for setting aside of ex parte decree after lapse of 10
months. Her application bears date 31 -8-2009. Her said application was surely filed beyond,
provided period. The only ground u rged by her for condonation of the delay is to the effect
that as the joined service in UNO and working at area of Loralai and District Killa Saifullah,
while she was under impression that her counsel is contesting the matter. She may be
working out of Que tta, but it is not her plea at any stage that she never visited Quetta during
all this period. She may have engaged some counsel, who may have not informed her about
the proceedings and orders made thereon, but this only fact does not absolve her from her
liability. She must be vigilant enough to safeguard her own rights. The negligence on the part
of her counsel is no ground for condonation of delay. She slept over her own rights, she has
to bear the consequences. The contention raised by the appellant is not convincing. The
learned trial Court has come to right conclusion keeping in view the material on record. As
the appellant has failed to establish her contention about her absence and further no ground
for condonation of delay occurred in filing of the application is established by her, therefore,
her application under Order IX, Rule 13, C.P.C. was rightly rejected by the trial Court, which
requires no interference. As there are no grounds for setting aside of order dated 16 -9-2009,
which remains in fiel d, therefore, the merits of the suit are not required to be considered and
no order is required to be made to said extent. The ex parte judgment and decree also remain
in field.
In view of above discussion the appeal is dismissed being without merits.
There shall be no orders as to costs.
H.B.T.145/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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