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Date Posted: 07:31:07 01/23/05 Sun
Subject: PROPER SERVICE OF LEGAL NOTICES
PROPER SERVICE OF
By Javed - 28.02.2004
A debate has started in these pages about a German court’s decision in case of a Pakistani researcher. In this debate came a point re necessity for proper serve of legal notice. The theme is that not serving properly the legal notice to defending party is grave injustice in itself and a decision made accordingly does not reflect a true justice.
I wonder before debating or criticizing the conduct of foreign courts first we should see our own home. Proper service of legal notice is one of the main ingredient of any justice system. Basic concept behind proper service of notice is that the defending party should have sufficient time from its daily life to prepare its defence and could arrange resources to come prepared. It never is meant to call the party just to punish. In our beloved country one of the biggest tool used to deprive the defendant party from getting justice is too frequent adjournments in which collaborating hand always is of lawyers and court lower clerks. The second biggest tool is to ensure that the other party does not get proper or timely legal notice. For example notices are published in such newspapers which do not have enough circulations and text of advertisements are got printed in smallest possible size/fine prints.
Sometime early 90s I was working abroad. I needed service of an advocate in Lahore. From one newspaper advertisement I got name of an advocate and contacted him. He agreed to take my case and I paid him full fee in advance. I paid him some extra at my own for spending on correspondences/faxes to keep me apprised. After one or two initial hearings he disappeared. Case was decided ex-parte due to absence of my advocate. I came to know my advocate had by then shifted from Lahore to Faisalabad. I approached the Secretary Punjab Bar Council Lahore who vide his Notice of Appearance dated 8.9.1997 advised me to appear before the Disciplinary Committee of the Bar on 18.9.1997. He probably thought he was asking a man in Gujranwala to come by just taking a Rs. 5 bus ticket. This notice reached me afternoon of the morning on which I was supposed to be present in Pakistan before disciplinary committee.
I apprised the Secretary about his non proper service of notice when again through his notice dated 22 October 1997 he advised me to attend and plead my case on 30 October 1997 in the District Bar Association Faisalabad. The Secretary further advised me that I should also bring with me “Office and residence complete address” of concerned Advocate. MASHALLAH, a common man had to provide IN THE HEARING the address of a REGISTERED member of the Bar. In other words on 30 October 1997 when I appear before the Committee the accused advocate was not to be present as his address was not known and only I was to show the disciplinary committee my “pretty” face on expense of at least Rs. 25,000 on travel because after I have given the address then minimum in next 4 or 10 days time the advocate concerned could had been arranged to attend next hearing provided he would not have “gone” to Murree for two months. And in the meantime I was supposed to remain out of duty staying in Faisalabad – same old tactics knowing well being a service person I can not stay indefinitely in Faisalabad. However supposing for a while that the Secretary possessed the basic average knowledge of postal system then it meant he deliberately kept a margin of only 9 days from date of his writing to the date of hearing – allowing 9 days for a letter to reach abroad, citizen to prepare travel arrangements, make some arrangement for food for children during his absence and come from a long distance. The legal notice universally invariably is supposed to have proper service address. My address was P.O. Box number so and so. The learned Secretary translated it on the envelope “Dakkhana number so and so”. He wanted the foreign people to know meaning of “Dakhana”. Wonderful.
Secondly a level as high as that of a Secretary of a distinguished body had not even a lowest level knowledge about mail situation and the circumstances under which his country’s citizens were working abroad. He thought traveling from a foreign country was just like taking a ticket from Gujranwala railway station and travel to Lahore/Faisalabad. He did not appear to have a remotest knowledge that even within the country to be on safe side it takes at an average of a week reaching a letter and he had no care he was sending a letter to a foreign country. His letter of 22 October 1997 reached the foreign mail Division on 30 October the date on which I was actually supposed to be showing my “pretty” face in the hearing from where it was next day forwarded to my city and local post office took its own time. I got this letter when hearing date had long passed. For traveling from abroad foremost thing needs money. I had to think of approx, Rs. 25,000 travel expense and arrangements for immigration formalities..
Now another wonderful thing. At no stage I mentioned in my letters anywhere what was the nature of my case, what was court name where my case met the ex-parte fate, case number etc. Hence it naturally meant that on date of hearing I was just to show my “pretty handsome” face to disciplinary committee because neither the accused advocate was supposed to be there (as disciplinary committee did not know his address which then I was to provide them this). Secondly this hearing was just a show piece because the so-called disciplinary committee had no information of case hence naturally no court case file was to be present there from which the committee could know the truth how many absences of the advocate the court had registered. So without advocate address and court case file which was in Lahore, I was to attend hearing on 30 October and remain there for next 15/30 days so committee could find the advocate who would by then surely be somewhere in Peshawar or Murree on holidays waiting my return back and committee getting information from Lahore. So this was all a game knowing well under no circumstances I would risk my employment abroad sitting for long days waiting for next hearing as logically the first hearing was just to waste the time and a formality to fill up the stomach of files.
A friend of my mine few years back received a one single page hearing notice from Sindh High Court. What was the nature of the case he was not aware as there was no attachment to it. He repeatedly addressed Chief Justice Sindh High Court requesting a copy of complaint/case so that he may know what was the case but never got any response. A Gujranwala court mid 1990s sent one of my colleague here in middle east a notice of attendance and on the envelope wrote half address that of Gujranwala and half of middle east, half in urdu and half in English properly to ensure that he did not get it timely. The court lower staff if not the court itself succeeded in this as this omlated address could deliver the notice to my friend after about 20 days of the hearing. Punjab Ombudsman who takes notice of mal-administration of other s and which is headed by a judge most serves the notice of hearing or for counter-statements by writing address the foreign complainants in Urdu language. One can thus well judge the fate of mailed notice to a foreign land where language is different. Both Federal and Punjab ombudsmen send their Notice in many cases with under-paid postage which makes the delivery 3 to 4 months late which in other word is defective service of notice. But as a tradition in the beloved country no body can show this as rules and laws all are for others and not for self.
LAST BUT NOT THE LEAST: Only three days back a friend told me a Pakistani working in middle east was in a sort of problem. His wife has filed some family dispute against her husband who is working abroad. The concerned Civil and Family Court Karachi Central has issued a Summon dated 12.11.2003 to the husband to attend the court probably on 24.11.2003. These dates and contents cannot be properly read with surely he received this Summon as a very illegitimate photocopy. This summon was sent to him through Pakistan Embassy. Date of hearing appears to be 24.11.2003. When actually it was posted form Pakistan and when Embassy got is not known. But Pakistan Embassy forwarded this to concerned defendant on 3.12.2003 after date of hearing (which if correct was 24.11.2003). No copy of any plaint etc has been attached with summon enabling the defendant to know what was the case enabling him to prepare his defence. Is just 12 days right from the date of scribbling and writing a summon/legal notice to the date of hearing particularly when defendant is living abroad give any “indication” to people who believe natural justice and fairness.
Brothers do not critcise Germans or others first we ought to see our own home.
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