NATIONAL BANK OF PAKISTAN Versus BAWANY INDUSTRIES LTD.

AJMAL MIAN. J. The present appeal is directed against an order dated 21‑1‑1.986 passed by a learned Single Judge of this Court in Suit No.1083/1978 allowing the respondent No.7 s application under Order 9 Rule 13 read with section 151, C.P.C. (C.M.A. No.4474/1984) presented on 2-10‑1984.

2. The brief facts leading to the filing of the above appeal are that the appellant filed aforesaid suit on 20‑11‑1978 for the recovery of Rs.12,05 505.05 against M/s. Bawany Industries Ltd. and 6 others. Respondent No.7 was arrayed as defendant No.7 and was sued as a guarantor for the loan amount obtained by respondent No.l. It appears that in spite of several attempts, the above respondent No.7 could not be served by ordinary mode of service. The appellant filed an application under Order 5 Rule 20 read with section 151, C.P.C. on 19‑9‑1979 (C.M.A. No.3422/1979) for substituted service, which was allowed by the Additional Registrar (O.S.) of this Court. Consequently, the summons were affixed at the last known address and the Court Notice Board ~ on 21‑1‑1980 and the notice was also published in the Morning Newspaper dated 8‑1‑1980. In response to the above substituted‑ service no appearance was put in on behalf of respondent No.7. Consequently, an ex parte order dated 3‑5‑1980 was passed against the above respondent, which followed on 21‑10‑1981 by an ex parte judgment /decree. After that the appellant filed an execution application, of which notice was issued and was served on respondent No.7. Thereupon, he filed the above application for setting aside the ex parte order and judgment /decree, which was allowed by the learned Single Judge. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal Mr. Mansoorul Arfin, learned counsel for the appellant, has urged as follows:‑

(i) That since in spite of several attempts, respondent No.7 could not be served with the summons, the substituted service was proper.

(ii) That since respondent No.7 had not informed the appellant about his leaving Pakistan in July, 1978 for Canada and as no fresh address was furnished, the appellant could not have got the summons issued at the Canadian address of respondent No.7.

(iii) That no sufficient cause was shown by the respondent No.7 for setting aside the aforesaid ex parte order and ex parte judgment/decree and, therefore, the learned Single Judge was not justified in allowing the application.

On the other hand Mr. I.H. Zaidi, learned Counsel for the respondent No.7, has contended as follows:‑

(i) That it was within the knowledge of the appellant that respondent No.7 had left for Canada and, therefore, it was incumbent upon the appellant to have made efforts to ascertain the address of respondent No.7 and to have made attempt to serve at the Canadian‑address.

(ii) That the requirement of the provisions of Order 5, Rule .20 C.P.C. were not complied with before granting the above application by the learned Additional Registrar (O.S.) of this Court.

(iii) That the words sufficient cause are to be construed liberally in order to advance the cause of justice instead of construing strictly as to frustrate the above object. ,

(iv) That since the learned Single Judge has exercised discretion in favour of respondent No.7, this Court while acting with the above discretion unless it is to be found perverse and contrary to be well established rules.

4. Before dilating upon the above contentions, it may be pertinent to observe that it seems to be an .admitted position that Respondent No.7 left Pakistan in July, 1978 for Canada and came back in June, 1983. There is controversy between the parties on the question, whether this fact was within the knoweldge of the appellant or not. According to the appellant, since respondent No.7 had not informed them before leaving for Canada and not left Canadian address, they had no knowledge of the above factum, whereas according to the respondent No.7, this fact was within the knowledge of the appellant even as per averments contained in the appellant s counter‑affidavits to respondent No.7 s above application under Order 9, Rule 13, C.P. C. In support of the respective contentions on the above factual. aspect both the parties have referred to the contents of the affidavits in support of the application ,and the counter‑affidavit. It may be pertinent to refer to the paras. of the affidavit and the counter -affidavit relied upon by the parties. Mr. I.H. Zaidi in furtherance of his contention on the.above factual aspect has referred to para. 5 of the supporting affidavit of respondent No.7 and para 6 of the appellant s counter‑affidavit; whereas Mr.. Mansoorul Arfin has also referred to paras. 7 and 10 of the counter‑affidavit. It may be advantageous to reproduce the same, which reads as follows:‑

Affidavit Para. 5. I say that I left Pakistan for Canada in July, 1978 and commenced my own business in Canada after fulfilling all legal requirements and only returned to Pakistan in. January, 1983 after winding up the said business in Canada.

Counter para. 6. Affidavit

. That the contents of para. 5 of the affidavit in so far as these relate to the deponent leaving Pakistan in July, 1978 and returning back Pakistan only in June, 1983, are within the knowledge of the plaintiff. The rest of the contents of the said para are denied.

Counter para.7. Affidavit.

That the contents of para 6 of the affidavit, as stated, are denied. It is submitted that the deponent is a guarantor of defendant No.l. The deponent did not inform the plaintiff of his leaving Pakistan. It was incumbent upon him either to leave his address with the plaintiff or send his address from Canada. The Plaintiff had got the summons served upon the Defendant No.7 at the address given by him and as such the service is proper. .

Counter para 10. Affidavit.

That the contents of para. 9 of the affidavit. as stated, are denied. I am advised, which advice I verify believe to be true, that the Defendant No.7 did not inform the plaintiff about the change of his address and the service on the known address of the Defendant is a good, sufficient and proper service of summons.

5. On the basis of the above quoted para 5 of the affidavit and para. 6 of the counter‑affidavit, it has been vehemently urged by Mr. I.H. Zaidi that the appellant have admitted the factum that they had the knowledge of the fact that respondent No.7 had left for Canada in July, 1978 and returned to Pakistan in June, 1983, whereas Mr. Mansoorul Arfin, learned counsel for the appellant, has submitted that factually tiara. 6 of the counter‑affidavit contains clerical mistake inasmuch as due to omission the word not has not been written in the above para. He has further submitted that the above para. 6 is to be read. with paras. 7 and 10 of the counter‑affidavit, from which it is evident that the appellant has denied the knowledge of the fact that respondent No.7 had left for Canada.

A plain reading of the above quoted para. 5 of the affidavit and para. 6 of the counter‑affidavit indicates that the appellant in first part of the para. 6 have not denied the fact that respondent No.7 had left Pakistan in July, 1978 and returned to Pakistan in June, 1983 but in the second part of the above para., the remaining averments contained in para. 5 of the affidavit have been denied. It is true that in paras. 7 and 10, the appellant have made averments to the effect that respondent No 7 while leaving Pakistan did not inform the appellant as to the fact that he was leaving. In our view. there is a distinction of having knowledge of a fact and being informed about it by a party. It seems to be true that respondent No.7 had not informed the appellant that he was leaving for Canada but it A appears that this fact was within the knowledge of the appellant. From the Bailiff s report, it is also evident that it came to the knowledge of the appellant that respondent No.7 was out of Pakistan.

6. Keeping the above factual aspect in view, we will have to examine the above contentions of the learned counsel for the parties. In this behalf, it may be appropriate to refer to the provisions of Order 5 Rule 20, C.P.C., which read as follows:

20. Substituted service.‑‑‑ (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service,or that for any other reasons the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

Effect of substituted service. (2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Where service substituted time for appearance to be fixed.

(3) Where service is substituted by orders the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

7. A perusal of the above quoted rule indicates that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons by substituted service. In the instant case respondent No.7 was not in Pakistan and, there is nothing on record to conclude that above suit as it was not filed by the time respondent No.7 had left Pakistan and, therefore, the first precondition of the above provision namely, that the defendant is keeping out of the way for the purpose of avoiding service is not ,present. However, the Court for the second reason namely, that for any other reason the summons cannot be served in the ordinary way could grant application for substituted service. The question, therefore, in issue is as to whether the second reason was available when the above application for substituted service was granted. Mr. Mansoorul Arfin has vehemently urged that as respondent No.7 had not informed about his Canadian address, the appellant were not obliged to ascertain the above address and, therefore. They could get the summon issued at the address supplied by respondent No.7 available on the appellant s record. In support of his above contention, he has referred to the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another, reported in P L D 1981 S.C. 225, in which the Honourable Supreme Court while construing the provision of Standing Order 15 (4) has held that the employer was only obliged to inform the workmen in writing of the alleged misconduct at the address available with the employer and as the workmen concerned had not furnished the new address, it was sufficient to have sent the requisite notice at the address available with the employer. The facts of the above case are distinguishable from the present case as the question before us is, as to whether there have been compliance of the provision of Order 5, Rule 20, C.P.C which speaks of presence of one of the two pre‑conditions before granting of an application for substituted service referred to hereinabove. In this regard, it may be pertinent to refer to paras 1 to 5 of the appellant s application under Order 5, Rule 20 read with section 151, C.P.C. containing the reason which read as follows:‑

1. That the above suit was filed on 20‑11‑1978.

(2). That since then summons of the suit have been issued several times for service on defendants Nos.2, 4 to 7 but have been returned unserved each time.

(3). That no other addresses are known to the plaintiff except the addresses already given in the plaint.

(4) That the defendants Nos. 2, 4 to 7 are not being traced or are avoiding service of summons.

(5) That delay in the service of summons is causing great prejudice to the plaintiff and considerable time has passed since the filing of the above suit.

8. A perusal of the above quoted paras indicates that the grounds mentioned were that the summons were issued several times inter alia for service on defendant No.7 but returned unserved each time and that defendants Nos. 2, ,4 to 7 were not being traced or were avoiding the service of summons. It is true that summons were issued several times as pointed out by Mr. Mansoorul Arfin but it is not .proved that respondent No.7 was avoiding the service of the summons as already observed hereinabove. We. are unable to agree with the contention of Mr. I.H. Zaidi that in case a defendant .eaves Pakistan, the plaintiff cannot get the summons served by substituted service, through Press. In a fit case, the publication can be allowed. However, in the present case as we have held on the basis of the contents of para. 6 of the counter‑affidavit that the factum that the respondent No.7 had left Pakistan in July, 1978 for Canada was within the knowledge of the appellant, efforts should have been made to have ascertained the address and to send the summons at the foreign address... In the above application for substituted service and also in the supporting affidavit. it has not been averred that any such efforts were made. We are, therefore, of the view that the learned Single Judge on the basis of the facts of the present case could hold service had and could set aside the aforesaid ex parte order and ex. parte judgment /decree.

9. We, therefore, see no merits in the above appeal. It is, therefore, dismissed with no order as to costs.

M.Y.H/N‑132/x. Appeal dismissed.