USMAN MAHMOOD SHAIKH Versus MUHAMMAD FAROOQ

1. This is an application for revision under section 115, C.P.C. to impugn judgment and decree passed by the IIIrd Additional District Judge, Karachi East whereby he dismissed the appeal and affirmed the judgment dated 11‑8‑1981 of the IInd Senior Civil Judge, Karachi. The facts leading to the filing of the above revision are that the respondent filed a Suit No.1680 of 1981 against the applicant for recovery of Rs.20,000. The case of the respondent as set out in the plaint is that the respondent by way of agreement dated 22‑4‑1975 paid Rs.20,000 to the applicant on the terms and conditions that the applicant will pay Rs.10,000 yearly as profit and that he will not be liable for losses. The respondent approached the applicant for payment of principal amount as well as profit; as such the applicant issued cheque dated 12‑11‑1980 which was dishonoured. The respondent sent legal notice dated 21‑2‑1981 and 28‑2‑1981 but of no avail. Therefore, the respondent filed the above suit for recovery of the above amount together with costs of the suit. The applicant remained absent despite substituted service. The trial Court decreed the suit. The applicant went in appeal which was also dismissed by the IlIrd Additional District Judge as stated hereinabove. The applicant being aggrieved filed the above revision application.

2. I have heard the learned counsel for the parties and perused the record of the case. It was through a substituted service effected on the applicant that ex parte proceedings were taken against him by the trial Court and consequently an ex parte decree was passed against him. The Senior Civil Judge was of the view that it was proper service effected on the applicant /defendant by a proclamation published in the newspaper and ex parte proceedings were taken against him by the trial Court. The trial Court rejected the application for setting aside ex parte decree, filed by the applicant. The applicant preferred revision before the Additional District Judge, Karachi. The revision application was also dismissed on 4‑12‑1985 and the order dated 25‑4‑1985 was affirmed. The applicant filed appeal against the ex parte decree alongwith an application under section 5 read with section 14 of the Act. The learned Additional District Judge condoned the delay‑ The learned Additional District Judge perused the record. He found that the summonses were issued to the applicant which were refused by him. The summonses were also sent through registered letter with the acknowledgement due which were returned with the postal endorsement that the "addressee has refused to accept the letters". Ultimately substituted service was effected upon the applicant through pasting of summons on the outer door of the applicant. Summons was published in Daily 'Hurriat' dated 17‑7‑1981. The service was held good. The suit was decreed ex parte. The applicant moved application for setting aside ex parte decree which was rejected by order dated 25‑4‑1985. The applicant preferred revision against the above order which was also dismissed. Now this finding is assailed by the learned counsel for the applicant. It has to be remembered that, as far as the Court is concerned, the power to interfere under section 115 of the Code of Civil Procedure is very much circumscribed. It cannot be doubted nor disputed that the appellate Court was the Court of full jurisdiction to deal with the matter which has been dealt with and the question as to the material irregularity and the inference to be drawn from the particular facts and circumstances were all the question of fact which the appellate Court was competent to reach upon the record of the case. As to the power of this Court. while exercising the supervisory jurisdiction under section 115 of the Code, it will be enough to refer to the high authority of the Supreme Court in P L D 1970 SC 139 where their Lordships have observed as under:‑

3. "It may also be pointed out, with all respect to the learned Single Judge that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily. This exposition of law is indication that unless this Court cant come to the conclusion that the appellate Court had no jurisdiction to, make the order or to pass the judgment or it had exercised its jurisdiction illegally or with material irregularity it is impermissible] to interfere in the present judgment. I have already referred to the circumstances which induced the Court below to come to the conclusion that it was not necessary to take ex parte proof from the respondent. I do not find any irregularity in coming to that conclusion by Court below justifying interference in the revisional jurisdiction. The application, therefore, having no substance, must fail and it is hereby dismissed. In the circumstances of the case, the parties shall bear their own costs.

4. M.Z.S./U‑45/K Application dismissed.