IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
C.P. No. S-849 of 2017
Nofil Nawaz Mulkana
Versus
Sana Maqbool & others
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Date of Hearing: |
23.01.2018, 26.04.2018 and 27.04.2018 |
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Petitioner: |
Through Mr. Zia-ul-Haq Makhdoom Advocate along with M/s Muhammad Azhar Mahmood and Faisal Aziz Advocates. |
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Respondent No.1: |
Through Mr.Muhammad Siddiq Mirza Advocate |
Muhammad Shafi Siddiqui, J.- Respondent No.1 filed suit for recovery of maintenance, dower amount and dowry articles on 08.10.2011 as Family Suit No.534 of 2011. After admission of suit, summons were issued to the petitioner on the same day which was initially claimed to have been returned unserved. After attempts at the address provided in the plaint, substituted service was effected through publication on 11.06.2012 as per diary of R & P dated 27.07.2012. The service was held good on 27.07.2012 by way of publication in Daily Express, in its issue of 11.06.2012 and the matter was adjourned for filing written statement on 10.08.2012.
2. In the meantime on 28.07.2012 (on the next day of service held good) one Mr. Shahid Iqbal Rana Advocate appeared and filed a statement (on behalf of petitioner/defendant) and the advocate was ordered to be heard. A separate order was passed on 10.08.2012 on the statement, which was already fixed by the Court, and it was ordered on the statement that the “attorney” had refused to receive the notice and publication has already been made and Mr. Shahid Iqbal Advocate has no capacity to file such statement as neither he has filed any power on behalf of the defendant (petitioner) nor on behalf of his attorney and separate order on the same date was passed in terms whereof the matter was ordered to proceed exparte. I will discuss the text of statement later.
3. An application was then filed for setting aside exparte order dated 10.8.2012 along with an affidavit. Notice was ordered on 06.09.2012. The counter-affidavit was filed by the respondent whereas a rejoinder affidavit was filed by the new attorney/actual attorney appointed, as claimed, for this case for the petitioner/defendant. The application for setting aside exparte order was then dismissed on 05.12.2012 though the petitioner was allowed to cross examine the plaintiff/respondent on affidavit in exparte proof. Subsequently the suit was decreed.
4. Petitioner at the very outset has challenged not only the judgment and decree passed in the suit but also the exparte orders passed by the trial Court in haste, as claimed, which could not have been, challenged at the relevant time as being interim and interlocutory order.
5. It is the case of the petitioner that knowingly the fact that he was residing at Copenhagen NV Denmark, respondent No.1 filed subject suit showing address of the respondent as M-42/I, Main Khayaban-e-Ittehad, Defence Housing Authority, Karachi. It is argued that the address, as disclosed in the plaint, no doubt is mentioned in the Nikahnama but at the same time the address of Copenhagen is also disclosed there. More importantly at the relevant time the respondent No.1, who filed the suit, knew and was also aware of the fact that notice could not be served at the Karachi address as respondent while coming to Pakistan herself claimed to have left him (petitioner) at Copenhagen, Denmark, the place she last communicated with him.
6. Learned counsel for the petitioner has also referred to the contents of paragraph 9 of the plaint, which disclosed that she (respondent No.1) reached Denmark on 23.01.2010 and in terms of paragraph 14 respondent arrived Pakistan on 07.05.2010. In paragraph 15 plaintiff/respondent claimed to have remained in touch with petitioner at Copenhagen till 15.05.2010 when he assured to visit Pakistan for facilitating visa application and instead she received the divorce documents. In the entire plaint, it is claimed by the learned counsel for petitioner that she nowhere stated that petitioner/defendant ever returned to Pakistan so that the service may be effected upon him at the address disclosed in the plaint.
7. Counsel submitted that from all the narration it appeared that it is nothing but an attempt to obtain an exparte decree in the absence of petitioner/defendant and to deprive him from an opportunity to contest the suit.
8. Respondent No.1’s counsel on the other hand argued that the address, as mentioned in the Nikahnama as well as in Pakistan Origin Card No.208420-100050-1 is of M-42/I, Main Khayaban-e-Ittehad, Defence Housing Authority, Karachi, which is disclosed in the plaint. He further argued that Umer Al-Hamidi, who is uncle of the petitioner, also disclosed as resident of the aforesaid address of DHA.
9. In Civil Suit No.1459 of 2010 filed on 25.09.2010 by the mother of the petitioner the attorney Umer Al-Hamidi was shown resident of above DHA address. In Family Appeal No.36 of 2013 the petitioner arrayed as respondent was also served at the same address of DHA. Learned counsel for respondent No.1 further argued that execution of new attorney in favour of Mrs. Tariq Jamil Khan wife of Maj. (Retd.) Tariq Jamil Khan is nothing but to present a situation that previous attorney had no right and authority to contest and defend the instant suit on behalf of the petitioner.
10. The reference was then made to Suit No.442 of 2010 wherein the address for service upon the defendant i.e. Nofil Nawaz Mulkana was stated to be that of Advocate Mr. Shahid Iqbal Rana. In Suit No.442 of 2010 as well the petitioner waited till the publication of summons in newspaper and in this case as well he did not appear until summons published in the newspaper and so also in Execution Application No.2 of 2016.
11. Counsel for respondent No.1 further argued that the provisions of CPC and Qanoon-e-Shahadat Order, 1984 are not applicable in the family proceedings to shorten agony of the litigating parties and has relied upon the case of Farzana Rasool v. Dr. Muhammad Bashir reported in 2011 SCMR 1361. He then argued that the prayer clause does not include a challenge to the interim order whereby exparte orders were passed and hence on this count alone such exparte orders cannot be challenged. Counsel further argued that plaintiff/respondent was subjected to cross-examination for about 1½ hour despite the fact that the discretion could have been exercised by the Family Judge to deprive him (petitioner) from cross examining the respondent/plaintiff. He finally argued that such questions cannot be raised in these proceedings under article 199 of the Constitution of Pakistan.
12. I have heard the learned counsel and perused the material available on record.
13. The suit out of which these proceedings have initiated was filed on 08.10.2011 and it was admitted on the same day and summons were ordered to be issued at the address, as disclosed in the plaint i.e. M-42/I, Main Khayaban-e-Ittehad, Defence Housing Authority, Karachi. I have called R & P of the Family Suit No.534 of 2011 (New No.33 of 2013) from the trial Court and made efforts to find out as to whether Bailiff has given any report as to availability of the petitioner/defendant at the given address. I have not been able to lay my hand on any report of the Bailiff attempting to effect service upon petitioner/respondent having remarks that the petitioner was ever present at the address or has refused to receive summons. I have also made an effort to locate the summons, which were served through publication on 11.06.2012 in Daily Newspaper Express. However, the original found in missing record retrieved later. A copy of which is also available in CP No.S-849 of 2017 along with statement filed by the petitioner at page 207. The other file of R & P reveals that another address of Khayaban-e-Shaheen was given wherein attempts were made to effect service upon another alleged attorney. The relevance and reference of this fresh address is however not disclosed.
14. The memo of petition, as filed, shows that an attempt of service upon Umer Al-Hamidi was considered as service upon his agent. Petitioner/defendant was not sued through his attorney/agent. It is only shown as C/o (care of) and the address of M-42/I, Khayaban-e-Ittihad was given. An argument was raised that perhaps in some previous litigation he (Umer Al-Hamidi) has been appearing as alleged attorney i.e. Family Suit No.442 of 2010. Be that as it may, the two Power of Attorneys are also available on record at page 251 and 255. The contents of the powers will be discussed later.
15. On the basis of alleged publication the service was held good on 27.07.2012. On 28.07.2012 i.e. next date a statement was filed by one Mr. Shahid Iqbal Rana Advocate that he had received copy of statement in Family Appeal No.11 of 2011 which disclosed the suit i.e. Suit No.534 of 2011 (instant suit) pending before Family Judge Malir. It is further stated in the statement that he attempted to approach the subject attorney appearing in Family Appeal No.11 of 2011 but he could not as he was out of country and hence he could not get any instructions either from the petitioner or his alleged attorneys but requested for a due process including the service on the address as appearing in Nikahnama i.e. the address of Copenhagen.
16. The Family Judge through the statement was informed that the defendant/petitioner was not available at the relevant address; he was residing at the relevant time at Copenhagen. The Family Court then fixed the date for hearing the advocate and on 10.08.2012 the Family Court ordered that since the attorney has refused to receive the notice and publication was already made and since Mr. Shahid Iqbal Rana has no authority to file such statement, passed a separate order for exparte order as the written statement was not filed.
17. It is worth noting that the service was held good on 27.07.2012 and petitioner was debarred from filing written statement and order for exparte proceedings were also passed on 10.08.2012 i.e. within 14 days. If the learned Judge was not recognizing the advocate who filed a statement, she could have at least extended the time for filing written statement by another week or so as there was nothing to prevent the Judge from extending such time in order to achieve the disposal of the suit on merits in view of the fact that judge was already appraised of the facts that petitioner was not residing at Karachi.
18. Now referring to alleged Power of Attorney there was nothing on record for the Family Court to reach to a conclusion that the notices were to be served upon alleged attorney Umer Al-Hamidi or any other attorney nor any reasoning in the memo of plaint was disclosed for filing the suit through attorney or C/o. The Nikahnama available also discloses the address of Copenhagen Denmark. Why then efforts were not made to effect service upon the petitioner/ defendant at the said address is not conceivable. The alleged attorney was considered for effecting service upon the defendant/petitioner on the basis of documents which were not available on record of subject file before Family Judge whereas the Nikahnama which was available disclosing the address of Copenhagen was not taken into consideration.
19. The proceeding in the nature of summary trial does not mean that process of effecting service will only be a formality. It is but the initial pillar in the procedure to achieve disposal on merit after effecting service. The trial Court Judge should have made efforts and that should be seen to have been done by trial Court in effecting service though nothing is available on record as far as Bailiff’s report of “refusal” is concerned. There is nothing as far as reasoning is concerned as to why service was not effected at the address of Copenhagen and why address of the attorney Umer Al-Hamidi was considered as lawful. What convinced the trial Court to conclude that summons of the instant suit were to be served upon alleged attorney is mystery.
20. One Mr. Tariq Jamil Khan son of Abdul Jamil Khan resident of 46-B, Khayaban-e-Qasim, Phase-VII, DHA was also shown as attorney in respect of issues of confirmation of divorce and arbitration proceedings in respect thereof including appearance before the Registrar or any reconciliation body. This was made possible only through special Power of Attorney. Such power does not include his appearance to contest any other suit. This Special Power of Attorney was executed on 13.09.2010 whereas the suit was filed in the year 2011 and it cannot be conceived that petitioner preempted a year before and executed power for a suit to be filed later. The next Power of Attorney was executed on 04.09.2012. This Power of Attorney was executed by the petitioner in favour of Mrs. Raheel Tariq Khan to appear before Family Court Malir in Family Suit No.534 of 2011 i.e. the instant suit.
21. The reason assigned by the Family Judge in dismissing application for setting aside exparte order was that last Power of Attorney was executed on 04.09.2012 and hence he (petitioner) knew about the pending proceedings. This could hardly be a reason for rejecting the application for setting aside exparte proceedings as eventually the steps were taken by the petitioner/attorney once he came to know about pendency of the suit through his advocate appearing in Family Appeal No.11 of 2011. He filed the statement on 28.07.2012 and on 10.08.2012 the statement of the counsel was discarded and exparte orders were passed on the same day and only then steps were taken to appoint an attorney whereafter an application for setting a side exparte order was filed which was dismissed on 05.12.2012 on the aforesaid grounds.
22. Order dated 10.08.2012 debarring petitioner/defendant from filing written statement at page 75 shows none was present for defendant. The diary sheet of same date shows Mr. Shahid Iqbal Rana to be present. Perhaps his presence was not marked as he was without having any power/ authority to represent defendant. Diary of 06.09.2012 shows filing of application for setting aside exparte which is also available at page 139 of the petition.
23. The order of 05.12.2012 itself in the opening paragraph reveal that Mr. Tariq Jamil “was” his attorney in another case pending in another Court between same parties and he has further disclosed that he is neither attorney in this case nor willing to indulge himself in any manner whatsoever. It further disclosed that said attorney was appearing in Family Suit No.442 of 2010 and Family Appeal No.11 of 2011. This is not due process of law adopted by the Family Court. It may have been a Family Suit by Sana Maqbool requiring summary trial, but the due process of effecting service was neglected.
24. I have perused the R & P. The first report of the Bailiff is available on record shows that some lady came out and disclosed herself as her (petitioner’s) maternal aunt/Khala. This report available at page 333 is dated 25.10.2011. It is neither served upon petitioner nor upon his alleged attorney. The second report is available at page 337. The bailiff in this report disclosed that one person came out and he was inquired about the petitioner and he disclosed himself to be servant of the petitioner. The next report of the Bailiff is available at page 351 dated 21.12.2011, which disclosed that he is servant of petitioner and that he is not available at home. In an OCS report at page 345 the consigner name was disclosed as Nawaz and it is not disclosed to whom the service was effected. The next OCS report at page 349 shows that it was served upon one Yousuf.
25. There are some contradictory reports of the postal authorities as compared to bailiff’s report. The first report of postal authority at page 373 discloses that it was refused but by whom it is not ascertained. The next report of postal authorities at page 375 dated 15.12.2011 disclosed that there was nobody with this name of Nofil Nawaz living at the premises. The next report of postal authority at page 377 is that the premises was closed. At page 381 report of the postal authority is that there was no one with this name of Nofil living at the premises. The report at page 357 of the postal authority show that the petitioner/ defendant was shifted.
26. The pasting report of the bailiff dated 09.02.2012, once it was disclosed by the postal authorities that they have allegedly shifted, could be of no use. These are all contradictory reports on the basis of which publication was effected.
27. The process of substituted service is not to be taken lightly by the trial Court. It is to be exercised only in case when it is required i.e. where the Court is satisfied with the reasons to believe that the defendant is keeping out of way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way the Court shall order for service of summons by:
(a) affixing a copy of the summons at 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
(b) any electronic device of communication which may include telegram, telephone, photogram, telex, fax, radio and television or
(c) urgent mail service or public courier services’ or
(d) beat of drum in the locality where the defendant reside; or
(e) publication in press; or
(f) any other manner or mode as it may think fit;
28. The trial Court record does not disclose such stage to have reached for effecting service through publication and that too at the address which was not appropriate and proper. There is no report of Bailiff suggesting that the petitioner as defendant in the suit refused to receive summons of the trial Court. In fact it was never a case of plaintiff/respondent as the attempts from beginning were made to effect service upon his alleged attorney, who in fact is not his attorney in this case. I am of the view that for effecting service of summons, plaintiff is not required to give address where defendant could have lived but where he actually reside at the time of service.
29. Subsequently an application for setting aside order whereby the side was closed declining the adjournment request was dismissed on the ground that the counsel has already cross examined the witness for about 1½ hour. This is also no reasoning that the counsel has cross examined for about 1½ hour. Had it been found to be justified, the application for adjournment could have been dismissed on merit but not on the count that he had cross examined enough and as such not allowed to further cross-examine.
30. Such being the interim orders were deemed to be merged with the final order and hence were available for a challenge under the concept of merger, for aggrieved party i.e. petitioner against whom the decree was passed.
31. In view of above, I deem it appropriate to allow the petition and set aside the judgment dated 18.03.2017 passed by II-Additional District Judge Karachi Malir in Family Appeal No.36 of 2013 and so also the judgment dated 31.08.2013 and decree dated 16.09.2013 passed by III-Civil & Family Court Malir Karachi in Family Suit No.33 of 2013 and exparte order dated 10.08.2012 and remand the case to the Family Court to allow the petitioner to file written statement within two weeks however subject to securing interest of the respondent by at least depositing 50% of the decretal amount by the petitioner to the satisfaction of the Nazir of the Family Court. The petitioner is allowed to file the written statement within two weeks from the date of this order and the parties would be at liberty to lead further evidence and /or further cross examine the witnesses. The Family Court is expected to proceed with the matter expeditiously and conclude the trial and announce the judgment in accordance with law within eight weeks from the date of receipt of this order excluding summer vacation. The R & Ps be sent to the concerned Courts.
Dated: 13.06.2018 Judge