M. SAADULLAH Versus TAHIR ALI

1. MUHAMMAD ZAHOORUL HAQ, J.‑‑ In this petition the petitioners Nos. 1 to 29 have challenged as illegal the publication of notice and ex parte decree, dated 22‑12‑1977 in Suit No. 2190 of 1968 and the order of the Civil Judge,' dated 10‑1‑1981 refusing to set aside that decree and the appellate order of District Court, Karachi, dated 1‑12‑1982 where the decree was not set aside.

2. The relevant facts are that on 10‑10‑1968 the respondent had filed a Suit No. 2190 of 1968 against the present petitioners and others in respect of possession of Survey Nos. 172 and 173, Garden West, Karachi. The defendants filed their written statements, on 2‑5‑1979.

2. The suit was pending in the Court of XIIIth Civil Judge and, on 17‑11‑1973, it was adjourned to 7‑1‑1974. However, 7‑1‑1974 being a holiday it was taken up, on 8‑1‑1974. On 8‑1‑1974 none of the parties was present before the Court. But since the matter had been adjourned from day to day, therefore, parties could rightly be expected to be present before the Court on 8‑1‑1974 as 7‑1‑1974 was a holiday. Matter was then adjourned to 6‑2‑1974.

3. On 6‑2‑1974 nothing happened. On 25‑2‑1974 the matter was taken by the Court on its own without the presence of the either party and the following order was passed:

3. "Transfer to IVth Circle Judge, Karachi, by District Judge order, dated 15‑2‑1974."

4. On 30th March, 1979 the IXth Civil judge receiving the case on transfer, and in the absence of the parties or their counsel, it passed an order for issuing Court motion notices to their Advocates. This was done by IVth Civil Judge. Thereafter, it appears that the Court motion notice was issued from time to time but it was never served upon the petitioners or their counsel. The Petitioners' counsel Mr. Lakhani had changed his office meanwhile, and, therefore, the endorsement by the bailiff was that Mr. Lakhani had changed his office. Meanwhile, the case was transferred from the IVth Civil Judge to XVIIIth Civil Judge, Karachi, without the petitioners or their counsel having appeared before the IVth Civil Judge. On 3rd November, 1976 the IVth Civil Judge passed the last order in presence of Advocate of the plaintiff. The Advocate of the petitioners was not present before the IVth Civil Judge on 3‑11‑1976 but the Judge wrote the following order‑‑

5. "Advocate for the plaintiff present and waived the notice as per District Judge order. Case transferred to XVIIIth Civil Judge. Parties are directed to attend the transferee Court on 24‑11‑1976."

6. On 24‑11‑1976 the XVIIIth Civil Judge wrote the following order:‑‑

7. "Advocate for the plaintiff present. Issue notice on C/M ‑and defendant received by transfer of the Court from IVth S.C.J. Karachi as per D.J. Order. Put off to 13‑1‑1977 for same purpose."

8. It appears that the petitioners and their Advocates were never served with the Court motion notice, and they were repeated till 29‑9‑1977

9. On 6‑10‑1977 the respondent filed application under Order V, rule 20, C.P.C. which was allowed. Case was put off to 24‑11.‑1977. 24‑11‑1977 being declared holiday the case was adjourned to 6‑12‑1977. Meanwhile, notice was published in Morning News. Karachi. On 6‑12‑1977 the case was ordered to proceed ex parte against the defendants /petitioners as they were absent in spite of publication. Case was adjourned to 12‑12‑1977 for ex parte proof. On 18‑12‑1977 ex parte proof was filed and on 22‑12‑1977 ex parte decree was granted.

10. The petitioners appeared to have never known what had happened till they received notice of the execution of decree on 8‑5‑1980 and they filed application, dated 14‑5-1980 under Order IX, Rule 13, C.P.C. However, the same was dismissed on 10‑1‑1981. The petitioners filed appeal before the District Judge but the same was dismissed, on 10‑12‑1981. The petitioners then filed Civil Revision being No. 4 of 1983 before the High court gut it was dismissed in default on 25‑8‑1983. The petitioners sought the restoration of their revision petition, on 5‑12‑1983 but the High Court was of the view that it could not restore a revision application and, therefore, the restoration application was dismissed. On 6‑12‑1983, therefore, Revision No. 234 of 1983 was filed by the petitioners and it was admitted, on 6‑12‑1983 subject to the determination as to whether second revision was maintainable. However. on 29‑4‑1983 the said revision application was allowed to be converted into a constitutional petition and the present petition is the result of the same.

11. Mr. Z.U. Ahmad has submitted a number of arguments in respect of the decree having been passed in an illegal manner as the different legal issues had not been dealt with and that the plaint itself was bad and consequent decree was also bad because the specific portion of land in the possession of petitioners was not mentioned. He had also argued that the decree had become infructuous, on 18‑3‑1980 because the plot had been forfeited by the D.C. and the respondent was, therefore, not the owner of the same. His main argument was, however, directed on the point that after transfer of the case from one Court to the other the petitioners had never been served with any notice which was mandatory and, therefore, decree was without any notice to them and was, therefore, coram non‑judice. He further submitted that no foundation has been laid for an order of substituted service of notice. And that since it was not a case of decree on the first date of hearing, therefore, the limitation of 30 days as provided in Article 164 of Limitation Act was not applicable and hence, the residuary Article 181 providing 3 years limitation was applicable in the case which had been lost sight of by the Civil Judge. He further contended that the D.J. had proceeded on an absolutely illegal assumption that the petitioners' Advocate was present before the C.,T. on 3‑11‑1976 when the Civil Judge had directed the Advocates to appear before the transferee Court on 24‑11‑1976. It was, therefore, contended that the petitioners' case had never been heard and that the assumption of the D.J. that they had neglected to pursue the suit was completely unfounded. He further submitted that the views of C.J. and D.J. that restoration application was barred by time was illegal because Article 181 was applicable which prescribed 3 years time.

12. Mr. Khalilur Rehman for the respondent No. 1 has contended that the petitioners had been served in the suit and had filed their written statements and issues had been framed and some of the petitioners had also appeared through their counsel. It was, therefore, the duty of the petitioners to pursue their defence but they and their Advocates have acted negligently. He further submitted that it was a representative suit which had been filed against the defendants under Order I, Rule 8, C . P. C . and, therefore, the C.J. was competent to serve the defendants with notice of the suit, after transfer, by publication.

13. The petitioners' counsel had placed reliance upon P L D 1981 SC 21 where it was held that where the suit was not decreed for non‑appearance of defendants at first hearing but was decreed later then the Article 164 is not applicable for setting aside of ex parte decree and Article 181 which provides 3 years limitation is applicable It was further held in that judgment that where a case is transferred the party is entitled to notice as he should be apprised of the change if the change occurs Mr. Khalilur Rehman had, on the other hand, placed reliance upon 1986 C L C 366 where it was held that where the applicants have deliberately avoided service of notice and even refused to accept notice and did not bother to find out any progress of their case for about four years the conduct of the applicants showed their lack of vigilance in proceeding with the suit and the High Court did not find any justification to interfere with ex parte orders of Courts below in its revisional jurisdiction in the circumstances of that case. However, in the same judgment of 1986 C L C 366 it has also been held that where a suit has been transferred and no date for hearing before transferee Court was given to applicants when suit was transferred administratively to transferee Court then the applicants should not be expected to appear before transferee Court, date of hearing having not been fixed by previous Court and that section 24‑A , C . P. C . would not be applicable ;n those circumstances From the perusal of the order sheet of the suit it becomes clear to us that the petitioners or their counsel had no information about the hearing of the suit after 6‑2‑1974. The last hearing of the case when the petitioners could reasonably be burdened with the knowledge of hearing of the case was, on 8‑1‑1974 when it was taken up by the XIIIth Civil Judge in lieu of the hearing, on 7‑1‑1974, when it was declared as a holiday, as it is the responsibility of the party to appear on the next day if the date of hearing is declared a holiday. The case having been adjourned on 8‑1‑1974 to 6‑2‑1974, the petitioners could be expected to appear on 6‑2‑1974. But here the difficulty has arisen. The matter was not taken up, on 6‑2‑1974 and there is no diary sheet for that day available. Thereafter, on 6‑2‑1974 the petitioners could not be expected to appear in this Court on any day, thereafter, without receiving a notice of hearing. But no such notice was issued by the XIIIth Civil Judge.

14. What had further complicated the situation is that without any notice to any one, on administrative grounds, the District Judge transferred the said case to the IVth Civil Judge, on 15‑2‑1974 and consequently, the XIIIth C.J. on his own, without any notice to the parties and without any one appearing before him ordered on 25‑2‑1974, that the case stands transferred to IVth C.J. Thereafter, the IVth C.J. dealt with the case and issued Court motion notices to the petitioners and their counsel but they were never served.

15. The case was again transferred by District Judge on administrative grounds to the XVIIIth C.J. in 1976 and Court motion notices were ordered to be issued to the petitioners and their counsel but they were never served. On 3‑11‑1976 when the IVth C.J. had directed the Advocates to appear before the transferee XVIIIth C.J. on 24‑11‑1976. at that time only the plaintiffs' counsel had appeared before him and the petitioners' counsel was not there at all and hence the petitioners cannot in any way, be burdened with the knowledge of hearing of case before XVIIIth C.J. Therefore, the view of the District Judge that the petitioners' Advocate had been directed, on 3‑11‑1976 to appear before XVIIIth C.J. on 24‑11‑1976 is completely arbitrary, without foundation and against the record and, therefore, vitiated on this ground.

16. The petitioners had never been served with any Court motion notice nor their counsel was ever served with the same, still further there is no endorsement of any bailiff that any of the petitioners had ever refused to receive any Court motion notice of the suit after 24‑11‑1976. We also wish to emphasize that there was no report from any bailiff on record nor any affidavit by the respondent No. 1 that the petitioners were avoiding to receive the said Court motion notices, therefore, there was hardly any justification to resort to the substituted service of notices under Order V, rule 20, C.P.C. The mere fact that the petitioners were in great number did not justify the resort to Order V, rule 20, C.P.C. If some of the defendants /petitioners had been served personally with Court motion notices and, thereafter some other defendants were not being served, then the resort to the substituted service against other defendants would have been possible on the ground that the interests of all the defendants were common as all of them were sought to be dispossessed on ground of being trespasser and further on the ground that it was a representative suit against the defendants where the provisions of Order I, Rule 8 were sought to be applied by the defendants. But we are quite clear in our mind that the discretion in Order 1, Rule 8 about publication of notice in a representative suit can be made use of only after the Court has come to the conclusion that service of notice/summons is being avoided by the persons sought to be served or that it is not possible to serve them in ordinary manner. The main provision of Order I, Rule 8 emphasizes service of notices/summons personally and, therefore, it is obvious that even in respect of representative suit the service has to be effected on the person concerned and if substituted service has been rendered necessary, in the circumstances of that case, then order to that effect has to be passed and not otherwise. But in this case there is no conscious application of mind shown to have been made by the Civil Judge and hence, the order of service of notice by publication was without the necessary foundation.

17. Mr. Khalilur Rehman had submitted that it was a matter of discretion for the Civil Judge whether to serve notice by publication or not and hence no interference from High Court is justified in writ jurisdiction. We are, however, of the view that the petitioners have been condemned unheard.

18. The matter has been taken up on 25‑2‑1974 without the same having been fixed for this date on 6‑2‑1974 and, therefore, the petitioners or their counsel could not be expected to appear on 25‑2‑1974. And it is obvious that thereafter, since the matter had been transferred from XIIIth Civil Judge to the IVth Civil Judge, therefore, there was no question of appearance of the petitioners before the IVth Civil Judge and there was obviously necessity for serving a fresh notice upon the petitioners. But the petitioners were never served with such notice and there was no reasonable foundation laid for substituted service of notice and hence, the notice by publication cannot be regarded as sufficient notice to the petitioners particularly when it is an admitted position that the petitioners have been residing on the disputed plot. If the notice of execution could be served upon the petitioners in 1980 personally, there is no reason to come to the conclusion that the petitioners could not be served in the ordinary way of the notice of change of Court. It was held in P L D 1964 S C 97 as under:‑

19. "The contention on behalf of the appellant is that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. The argument on the other hand is that when a Court is seized of a case it has jurisdiction to determine whether summons has been duly served and this will include a case where the Court finds, though not quite correctly, that there is sufficient legal notice to the defendant.

20. It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a IIIrd Class Civil Judge could hold that the High Court or the Supreme Court is taking up a case on a particular judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction."

21. In P L D 1968 Lah. 792 where substituted service had been ordered by publication in newspaper without waiting for return of notice already issued it was held that the order of publication of notice was without jurisdiction. It was observed that there was no material before the Court by which it could be satisfied that defendant was avoiding service.

22. With respect we agree entirely with the observations made in this case and in the present case we are of the view that there was absolutely no justification for issue of substituted service of notice and the same could not be regarded as an order with jurisdiction Consequently, the order for substituted service was illegal and without jurisdiction and the decree passed on 22‑12‑1977 was, therefore, completely vitiated.

23. It was held in P L D 1958 Lah. 104 that where an order has been made without jurisdiction and a superstructure of several orders has been made on the basis of the original void order then the entire superstructure falls to the ground. It is, therefore, obvious that the orders passed by the original Court on 22‑12‑1977 and thereafter, the order passed, on 10‑1‑1981 refusing to set aside the decree and the order of the appellate Court, dated 1‑12‑1982 where the decree was not set aside are all based on the same order of publication of notice without jurisdiction and hence they fall to the ground.

24. Moreover, since the service upon the petitioners had not been duly effected, therefore, the decree, dated 22‑12‑1977 was coram non judice as held in P L D 1964 S C 97.

25. The order, dated 10‑1‑1981 by Civil Judge refusing to set aside the decree passed, on 22‑12‑1977 is illegal on another gound that it is based on the proposition that an application under Order IX, Rule 13 made by the petitioners after 30 days of the decree, dated 22‑12‑1977 was time‑barred as Article 164 of the limitation act applied. However, we have seen that the said decree was not passed on the first date of hearing but it was passed after the case had been transferred from one Court to the other and then from the second Court to the 3rd Court and that too without notice to the petitioners and hence Article H 181 of the Limitation Act which prescribes a period of three years is applicable in the case as held in P L D 1981 S C 21 and, therefore, the order of the C.J. was also vitiated by. the illegal view that Similarly the order of the appellate Court which took the same view in respect of limitation of 30 days for the application under Order IX, rule 13 made by the petitioners, was again vitiated by the untenability of the view and, therefore, obviously orders were without lawful authority with the result that the petitioners were never heard on merits restoration application.

26. Mr. Khalilur Rehman had urged that the High Court should not act as a Court of error in the exercise of its writ jurisdiction. He had relied upon cases where it was observed that the High Court in its writ jurisdiction does not act as a Court of appeal

27. We are quite clear that we are not acting as a Court of appeal in this case because the lower civil Courts have in the first instance acted without jurisdiction by ordering the notice by publication without there being any evidence that service was being avoided by the petitioners and, thereafter, they took completely untenable view in law that the application under Order IX, rule 13 was time‑barred whereas in fact it was within time of three years time as provided under Article 181 of the Limitation Act which applied. The orders were, therefore, without lawful authority and, therefore this Court can act in its extraordinary jurisdiction.

28. The respondents' counsel had also contended that it was merely a matter of discretion for the lower Court to order notice by publication particularly in view of Order 1, rule 8, C . P. C .

29. We do not agree with this view. Notice of a proceeding is the basic right of a party and, therefore, it has been held by civil Courts that notice by substituted service cannot be ordered unless the Court comes to the conclusion that the party was avoiding service of notice or for some other valid reason. In this case no such concious Qrder had been passed by the civil Court. Even under Order I, rule 8, C.P.C. the civil Judge had first to come to the conclusion that personal` service was not reasonably practicable upon alt the petitioners. In the first instance, there is no such concious order by the civil Judge that the personal service upon the petitioners was not reasonably practicable and in the second instance mere issue of notice several times upon the petitioners without any report of the bailiff that it was not reasonably practicable for him to serve such notices the foundation for publication of notice under Order I, rule 8 had not been made out.

30. Moreover, since the names of the petitioners had been clearly detailed, therefore, personal service upon them was necessarily required and the publication of notice under Order I, rule 8 could only serve the purpose of binding those persons whose names were not mentioned in the suit and they were required to be bound by the eventual decree on account of the numerous numbers.

31. The respondents' counsel had also submitted that the petitioners were guilty of negligence as they had waited till 1980 to enquire about the case. We do not find any justification for such submission as it is common knowledge that after the transfer of a case a party does wait for a notice from the transferee Court and till such notice is given ant adverse order cannot be passed against him.

32. We, therefore, set aside the impugned orders, dated 6‑10‑1977, 22‑12‑1977 and 10‑1‑1981 passed by the Civil Judge and the ultimate order in appeal passed on 1‑12‑1982. We, therefore, direct that the Civil Judge will start the case again from the stage as it was before him on 6‑10‑1977. The parties are directed to appear before the District Judge (South), Karachi, on 24th April, 1986, and take a date from him for their next appearance before the Civil Judge to whom the case will be assigned by the learned District Judge. The Civil Judge is directed to proceed with utmost haste in the disposal of the case as very long time has already gone by unfortunately, but it was not fault of petitioners.

33. We have refrained from saying anything in respect of the order of dismissal of the revision application of petitioners by the High Court application the petitioner has not asked for any declaration in respect of Moreover, the present petition is the outcome of conversion of the second revision application into this petition and it is, therefore, almost a continuation of the same. Moreover, the jurisdiction exercised in the writ petition is almost similar to that exercised in several revisions under section 115, C.P.C. However, the basic orders passed by the lower Courts have been set aside on the basis of their being without lawful authority and, therefore, the other orders have not necessarily to be commented upon.

34. M. Y. H. Case remanded.