Lt.Col. (Retd.) MAHMOOD AKHTER vs BANK OF PUNJAB through Manager
This matter concerns two consolidated Regular First Appeals involving a suit for rendition of accounts and a subsequent suit for recovery filed by the Bank of Punjab against the appellant. In the first appeal, the trial court rejected the appellant's plaint for lack of cause of action based on a 'better statement' recorded under Order 10, Code of Civil Procedure 1908, without framing issues or conducting a trial. In the second appeal, the appellant challenged an ex parte decree, arguing that service of summons was effected at an incorrect, outdated address despite the Bank possessing his current address. The core legal questions were whether a court can reject a plaint based solely on a 'better statement' without trial, and whether service of summons at an incorrect address constitutes valid service. The Court held that a 'better statement' cannot substitute for a trial and that service at an incorrect address is invalid. Consequently, the Court set aside both the rejection of the plaint and the ex parte decree, remanding the matters for proper adjudication in accordance with the law.
- Can a court reject a plaint based solely on a 'better statement' recorded under Order 10, Code of Civil Procedure 1908, without framing issues or conducting a trial?
- Does service of summons at an outdated address, when the plaintiff possesses the defendant's current address, constitute valid service in law?
- Is an ex parte decree liable to be set aside if the defendant was not served at their correct address?
- Order 10, Code of Civil Procedure 1908
' MIAN SAQIB NISAR, J.---The instant appeal as also Regular First Appeal No,433 of 2002, are being disposed of together, as both have nexus to the questions involved and are between the same parties.
2. The appellant in Regular First Appeal No,399 of 2001, filed a suit for rendition of accounts against the respondent-Bank, in which leave was granted to the Bank, but before the issues were framed, the Court recorded the better statement of the plaintiff and dismissed the suit on 9-4-2001, holding that the plaint does not disclose a cause of action.
3. After the dismissal of the appellant's suit, the Bank brought a suit for the recovery against him, which is subject-matter of Regular First Appeal No,433 of 2002. In this suit, notices were issued to the appellant and having failed to file leave application within the time provided and also on account of his failure to appear before the Court, the suit was decreed on 26-11-2001, the appellant filed an application for setting aside. The ex parte decree, which has been dismissed on 17-5-2002, hence this appeal.
3. In Regular First Appeal No,399 of 2001, learned counsel for the appellant states that the Court below has not followed the proper procedure by framing the issues and conducting the trial, therefore, the plaint of the appellant has been illegally rejected.
4. Confronted with the above, learned counsel for the respondent has not been able to show as to under what law, the suit had been decreed, when after the grant of leave to the respondent- defendant, it was obligatory upon the Court to have framed the issues and permitted the parties to produce evidence. Because according to the law, the examination of the parties to the lis under Order 10, C.P.C. Is for the purposes of ascertaining the real matter in controversy and such better statements cannot be used as a means of trial. Thus in the light of above, the impugned decree cannot be sustained and is hereby set aside. The matter is remanded to the learned Banking Court for disposal in accordance with law.
5. As far as Regular First Appeal No,433 of 2002, is concerned, suffice it to say that according to the appellant, his latest address available with the respondent-Bank was House No,E-77, Phase-I, Lahore Cantt., on which the statement of accounts and other correspondences was also made by the respondent-Bank, before filing of the suit, whereas in the plaint and the notices issued to the appellant, his previous address i.e. House No,233, Block S Phase-II, Defence, was mentioned, which premises were on rent with the appellant and he has vacated the same. This factual position has also not been controverted by the counsel for the Bank, resultantly, as the appellant had not been served on his proper address, therefore, the service on previous address was no service in law, Laid the ex parte decree was liable to be set aside on the application of the appellant in this behalf.
Therefore, by allowing this appeal the impugned order dated 17-5-2002, is set aside with the result that the application of the appellant for the setting aside of the judgment and decree dated 26-11- 2002, is accepted; the appellant is permitted to file his leave application within 30 days from today.
6. As regards the argument of learned counsel for the respondent that after passing of the decree, the appellant had given certain cheques and had deposited some cash amount thus this tantamounts to the admission of the liability, suffice it to say that this aspect is relevant to the merit of the case, but for the present, we are only confined to the order of the Banking Court refusing to set aside the decree. The respondent may raise this plea in the leave proceedings before the Banking Court.
' In the light of above, both these appeals are allowed.
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