FAUZIA PARVEEN ALIAS FAUZIA TIWANA Versus SAHIB KHATOON

1. SHAFIUR RAHMAN, J.- -Leave to appeal was granted to examine whether the Lahore High Court was justified in dismissing in limine a first appeal against an order passed on appeal whereby the ex parte decree passed against the defendant-respondents by the trial Court A was set aside on the ground that there was sufficient reason to do so.

2. The appellant Fauzia Parveen instituted a civil suit on 22-4-1972 seeking declaration that she was the legitimate child of Nawabzada Malik Muhammad Feroze Khan Tiwana deceased the father of respondents Nos.3 to 6. She also sought the declaration that she was entitled to her share under the Shariat in his movable and immovable estate. This suit was instituted in the Civil Court at Sargodha. The respondents entered appearance contested the suit and issues were framed. On 26-12-1973 she applied for the transfer of her suit to Lahore and after service of the notice on the respondents the suit was transferred to the Civil Court in Lahore. From the Civil Court at Lahore process issued served on the respondents and on their non-appearance proclamation issued on 25-12-1975 and ultimately on 6-1-1976 ex parte proceedings were ordered and on 7-4-1976 ex parte decree was passed. The respondents thereafter on 3-9-1976 instituted an application under Order IX, Rule 13 read with section 151, C.P. C. for setting aside the ex parte decree. It was contested by the plaintiffs/ appellants and the only issues framed were as follows:-

3. "(1) Whether there exist sufficient cause to set aside the decree dated 7-4-1976? O.P.P.

(2) Relief ."

4. The learned Senior Civil Judge came to the conclusion that service had been properly effected on the respondents on the addresses disclosed by them and if there was a change in their address they had defaulted in not providing their correct address and the substituted service effected was proper and suffered from no infirmity. A ground was taken that in any case respondents 3 and 4 were minors and had not been proceeded against through a guardian. This ground was met by the following finding recorded by the Senior Civil Judge-

5. "It has also been stated by the petitioners that petitioners Nos.3 and 4 were minors when suit was filed and no guardian ad litem was appointed by the Court. It is incorrect factually. Guardian ad litem was appointed by the Court which is a patent on the face of the record. Anyhow, when ex parte proceedings were ordered after transfer of the case, then, if the minors were to be proceeded ex parte or not is not function of this Court to examine it. This Court is of concurrent jurisdiction and cannot go behind the order dated 7-4-1976 on merits. "

6. An appeal was preferred to the District Judge who reversed the finding of fact by holding as follows-

7. "Taking a process server from Lahore was itself novel and then getting no witness of the locality in support of the alleged refusal on the part of the appellants made it still worse. Added to it was clear absence of any affixation in the report of the process server and his statement made in the. Court to that effect was nothing better than an embellishment introduced to supply the omission. Evidently it had no force. It goes without saying that the substituted service through newspapers though technically as effectual as personal yet cannot be taken' to be the last word on it. The law insists upon personal service, especially the more in case of lady and minor whose interests have to be safeguarded meticulously by the Courts and, nothing sketchy can be allowed to take place so as to deny due opportunity of defending themselves. Besides, being minors they were outside the country for sometimes, and therefore, service in their context had to be made with abundant caution. There was some force in the counsel's plea that the substituted service was a sort of superstructure based upon the foundation if foundation itself was faulty the superstructures could not be expected as unexceptionable."

8. Hence the ex parte decree was set aside by the District Judge. The plaintiff preferred an appeal against this order of the District Judge which was dismissed by the learned Judge in the High Court in limine upholding the findings of the District Judge in the following words-

9. "Learned District Judge has given detailed reasons for taking the view that there was no proper service. Admittedly, some of the respondents were minors at the time of the passing of the ex parte decree. According to learned counsel for the appellant they had been served through their mother but she had not entered appearance before the learned trial Court. Even if their mother had not appeared before the learned Senior Civil Judge after service it was the duty of the learned Senior Civil Judge to appoint somebody as their guardian ad litem before passing the decree against them."

10. Mr. Shahzad Jehangir, Advocate, the learned counsel for the appellant, has taken us through the entire proceedings with a view to demonstrate especially that all the prescribed requirements of the law were fully satisfied in effecting service on the respondents. The order proceeding ex parte against them was in their knowledge and had been competently passed. Their absence from the proceedings was deliberate, calculated and contumacious. They were, on the facts of the case and the law applicable, not entitled to any indulgence whatsoever. They had come to the Court after great delay and that on score too their application should not have been entertained.

11. A fact noted by the District Judge as well as by the High Court which was by itself considered sufficient to set aside the ex parte decree was the fact that respondents 3 and 4 were admittedly minors at the relevant time. They were proceeded against in the litigation through their guardian Mst. Musarrat Begum respondent No.2 who was their mother. It is also an admitted fact that Mst. Musarrat Begum had defaulted in putting in appearance on her own behalf and on behalf of these minor respondents whom she was required to represent under the orders of the Court. It was, therefore, a case where the guardian had been negligent and had defaulted in representing and protecting the interest of the minors. Rule 11, Order XXXII, C.P. C. requires that "where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit." The same rule goes beyond further to prescribe "where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place".

12. In this case, the guardian had failed to do her duty and was liable to be removed and substituted by the Court. As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not. We are therefore, in agreement with the view taken by the two Courts: at this omission to ensure proper representation of the minors was material factor to be taken note of while considering the application for setting aside the ex parte decree. The minors were, in any case, neither properly served nor properly represented.

13. So far as the factual aspect of the case is concerned we do not want to interfere with the concurrent findings of fact recorded by the District Judge, and upheld by the learned Judge in Chambers holding that keeping in view that there were Pardahnashin ladies and minors involved the service should have been got effected in a more inspiring manner than was according to the two Courts done in the case.

14. As regards the question of limitation in filing the application! for setting aside the ex parte decree there is, as observed by the learned Judge in the High Court no objection taken at the proper stage by the plaintiff and no issue in that behalf was framed.

15. In the circumstances and for the foregoing reasons, the appeal is dismissed with costs.

16. M.I. /F-36/S Appeal dismissed.