MESSRS LANDHI INDUSTRIAL TRADING ESTATES LTD., KARACHI vs GOVERNMENT

1. SAMAD AHMAD, J.-This petition for special leave to appeal is directed against the decision of a Division Bench of the High. Court of West Pakistan (Karachi Seat) made in revisional jurisdiction under section 115 of the Civil Procedure Code, refusing to interfere with the order of the Second Civil Judge, First Class, Karachi, whereby an ex parte decree earlier granted by him to the petitioner (Messrs Landhi Industrial Trading Estates Ltd. Karachi) against the respondent (Government of West Pakistan) was set aside. The ex parte decree aforesaid was obtained by the petitioner in a suit which it had filed against the Karachi Development Authority and the Government of West Pakistan, defendants 1 and 2, respectively, on the 20th of May 1964, for a declaration that it was immune from imposition of tax under the West Pakistan Urban Immovable Property Tax Act and for a permanent injunction to restrain the defendants from recovering the same.

2. According to the Court diary (copy-on-record, Exh. G) the order recorded on the 30th of may 1964, shows that defendant No. 1 was unserved by that day but defendant No. 2 was absent in spite of service. It further appears that defendant No. 2 remained absent throughout until the ex parte decree was awarded against it on 24-11-1964, when simultaneously the suit against defendant No. 1 was withdrawn by the plaintiff. Earlier on 19-9-1964, owing to the absence of defendant No. 2 in spite of service, it had been ordered that the suit shall proceed ex parte against it.

3. On the 22nd of December 1964, Defendant No. 2 filed an application purporting to be under Order IX, rule 13, of the Civil Procedure Code, for setting aside the ex parte decree. It was represented in the application that on 24-11-1964 when the ex parte decree was awarded after hearing the arguments of the plaintiff's counsel regarding maintainability of the suit, the Government Advocate' who was present on behalf of defendant No. 2 asked for an opportunity to argue in rebuttal which was refused for the reason that the order of the Court dated the 19th of September l964, by which defendant No. 2 had been placed ex parte stood in the way.

4. The application for setting aside the ex parte decree was allowed by the Court on the 15th of January 1966, and the case was ordered to be revived for decision on merits.

5. We entirely agree with the view adopted by the High Court. We find that initially service was not effected on the respondent according to law through any of its proper officers authorized to accept service or through the Government Pleader, as required by rule 4 of Order XXVII, of the Civil Procedure Code. The summons had instead been sent to the Excise Department for service which was not the agent of defendant No. 2 for that purpose.

6. There is no substance in this petition which is dismissed.