' SYED MAHMOOD ALAM, J.-This Revision is directed against the order dated 22-1-2007 passed by VIIth Additional District Judge, South Karachi, whereby the application under section 12(2) read with Order XXXVII, rule 4 and section 151, Civil Procedure Code was dismissed.
2. Briefly, the facts of the case are that the respondent on 14-3-1996 filed a Civil Suit No,217 of 1996 under Summary Chapter before this Court for recovery of an amount of Rs,8,83,000 which was contested by the applicant and unconditional leave to defend the suit was granted to him. Where after, written statement was also filed and issues were framed by this Court. Subsequently, on change of pecuniary jurisdiction of High Court, the suit was transferred to the court of District and Sessions Judge, South Karachi who wrongly assigned it to the court of Xth Senior Civil Judge, South Karachi where it was renumbered as Suit No,471 of 2003. The respondent waived court motion notice and the notices were issued to the applicant which remained un served and the court of Xth Senior Civil Judge, South Karachi by order dated 9-8-2003 held the service good and proceeded to record evidence of the respondent. The evidence was recorded by Senior Civil Judge in absence of the applicant on 14-7-2004 and side of the applicant was closed and case was put up for evidence of the applicant.
3. However, when the matter was fixed for evidence of the applicant/defendant, the learned Xth Senior Civil Judge, South Karachi realized that the suit being under Order XXXVII, rule 2, C.P.C. Hence was not triable by the Senior Civil Judge and therefore, on 7-8-2004 he made a reference to the District Judge, South Karachi, as a result, the learned District Judge, South Karachi through an administrative order dated 31-8-2004 recalled the case from the court of Xth Senior Civil Judge, South Karachi and assigned it to the learned VIIth Additional District Judge, South Karachi for trial and disposal as per law.
4. That the case was received in the court of VIIth Additional District Judge, South Karachi on 2-9- 2004 who without issuing court motion notices to the applicant/defendant on 28-9-2004 proceeded with the case by holding that it was duty of defendant/applicant to proceed their case vigilantly because a valuable right was involved and closed the side of the applicant/defendant for evidence merely because the applicant neither perused their case before Senior Civil Judge nor her court. Ultimately an ex parte decree was passed and execution No,3 of 2005 was filed by the respondent. The applicant on receiving the notice of the execution came to know about the judgment and decree in Suit No,471 of 2003 against him and immediately filed an application under section 12(2), C.P.C. For setting aside the judgment and decree which was contested by the respondent by filing their counter-affidavit to the application under section 12(2), C.P.C. Which is available at page 109. The said application was dismissed by learned VIIth Additional District Judge, South Karachi and against the said order this revision has been preferred by the applicant.
5. That the notices of this revision were sent. Through TCS which seems to have been received at the address given in the plaint as the report has been placed on record by the advocate for the applicant. It has also been pointed out by the counsel for the applicant that the R&Ps of Suit No,471 of 2003 and execution No,3/2005 were called from the Court of VIIth Additional District Judge, South Karachi where the respondent was presenting the execution proceedings. The record of execution application No,3 of 2005 at page 5 of Part II of execution proceedings shows that an application under Order XXI, Rule 26, C.P.C. Was filed by the applicant before the executing court wherein it has been elaborately stated by the applicant that above Revision No,30 of 2007 has been filed before this Court and by order dated 12-3-2007 the R&Ps of execution has been called by this Court. The copy of said application of applicant was received by the counsel for the respondent thereafter, the R&Ps was sent to this court. The record shows that respondent is fully aware of the revision application and has chosen not to contest this revision application as no body is present on their behalf.
6. I have heard Mr. Nazar Akbar, Advocate for the applicant and have gone through the record and proceeding of Suit No,471 of 2003 as well as Execution Application No,3 of 2005. On examination of diary sheets of the Court of Xth Senior Civil Judge, South at Karachi. I am unable to appreciate that why it took more than one year for the Senior Civil Judge to realize that the suit being under summary chapter was not triable by him when in August 2004 a reference was made purely on the question of jurisdiction in view of the fact that the suit was based on negotiable instrument. The order of transfer of Civil Suit No,471 of 2003 available at page 69 of the Revision also makes it abundantly clear that the administrative ground for transfer of the suit was solely the fact that the suit No,471 of 2003 was under Order XXXVII, C.P.C. And that is why it was re-called from the court of Senior Civil Judge and transferred to the VIIth Additional District Judge.
7. That admittedly the applicant was unaware of the proceedings before Xth Senior Civil Judge and on transfer of the case, the VIIth Additional District Judge, South Karachi also did not issue any court motion notice to the applicant in spite of the fact that initially the VIIth Additional District Judge, South Karachi has issued directions for court motion notices.
8. The diary of VIIth Additional District Judge, South Karachi where the case was received on 2-9- 2004 and it was decreed on 29-10-2004 shows that on 16-9-2004 the court did order that court motion notices be issued to the applicant but no such notice was issued. However, a detailed diary dated 28-9-2004 shows that the Additional District Judge, South Karachi referred to the record of Xth Senior Civil Judge, South, Karachi who on 9-8-2003 had held the service good on the applicant and had recorded the evidence of the respondent in absence of the application and therefore, the VIIth Additional District Judge decided not to issue fresh notice on the ground that it was the duty of the party to pursue the case vigilantly and closed the side of the applicant for record of evidence even without recording of the evidence of the plaintiff by itself and relying on the evidence recorded by the Xth Senior Civil Judge, which was patently illegal and without jurisdiction.
It is an admitted position that applicant was never informed or aware of the administrative order whereby the suit was transferred from the court of Xth Senior Civil Judge to the court of Additional District Judge. It was wrongly assigned to the court of Senior Civil Judge and on the Reference of Senior Civil Judge, the District Judge by order dated 30-8-2004 has recalled it and transferred to the VIIth Additional District Judge, South Karachi for trial and disposal as per law. In these circumstances the applicant was entitled to a court motion notice which should have been issued by the learned VIIth Additional District Judge South, Karachi. It has been pointed out by the learned counsel for the applicant that in the impugned judgment the learned VIIth Additional District Judge has referred to 1987 SCM R 150 and also 1997 SCM R 926 and yet failed to appreciate that in the given facts and circumstances of the case the relevant judgment of the Supreme Court was 1997 SCM R 926 Saifullah Siddiqui versus KESC wherein at page 930 the case law reported in 1987 SCM R 150 has been elaborately discussed and it has been held that to press provision of section 24-A(2), C.P.C., it is, the duty of the court to inform the parties about the transfer of the case. In the instant case neither the applicant was available before the District Judge who ordered for transfer of Suit No,471 of 2003 from the court of Xth Senior Civil Judge to the court of Additional District Judge nor there was any occasion for the Xth Senior Civil Judge to inform the applicant about the transfer of the case since the applicant was not properly served by the Senior Civil Judge. In these circumstances, the proceedings before the Additional District Judge without issuing of court motion notice to the applicant was improper as the applicants was entitled to a proper notice after transfer of the case and ex parte decree cannot be held effective since the service of the court motion notices was not effected as held by the Hon'ble Supreme Court reported in 1997 SCM R 926.
9. The other important aspect of this case is that the proceedings before the Senior Civil Judge who has recorded the evidence of the respondent/plaintiff were incompetent and without jurisdiction. It is an admitted position that the suit was filed under summary Chapter before this court under Order XXXVII, C.P.C. There is no cavil to the legal position that Order XXXVII, C.P.C. Applies only to the High Court and to the District Court and to any other court specially notified in his behalf by the High Court. The provision of rule 1 of Order XXXVII, C.P.C. Reads as follows:-- "1. Application of Order.--The Order shall apply only to the High Court, to the District Court and to any other Civil Court notified in this behalf by the High Court."
10. In this legal position since the court of Xth Senior Civil Judge, South Karachi was not notified to proceed under summary chapter, the proceedings of civil suit No,471/2003 before the Xth Senior Civil Judge, South Karachi from 17-2-2003 to 7-8-2004 including recording of evidence by the Xth Senior Civil Judge, South Karachi was patently illegal being coram non judice. The counsel for applicant has rightly relied on PLD 2007 Lah. 101 (Sh. Muhammad Arshad v. Sh. Muhammad Asghar) wherein Lahore High Court while relying on the judgments of the Hon'ble Supreme Court PLD 1988 SC 124 and 1969 SCM R 784 has held that in a suit for recovery of money based on pro note, the proceedings as also consequential judgment on a mistaken assumption of jurisdiction of Civil Judge loses legal efficiency. The Additional district Judge in the instant case did not realize that the case was received in her court from the court of Senior Civil Judge on the ground that Suit No,471/2003 was under Order XXXVII, C.P.C. With directions to proceed in accordance with the law.
The learned Additional District Judge instead of examining the court file in terms of Order XXXVII, C.P.C. Being exclusively triable by the High Court or the District Judge heavily relied on the proceeding before the Senior Civil Judge as of the same were not defective through the proceedings were without jurisdiction and patently illegal.
11. The Additional District Judge, South Karachi was required to proceed from the point of recording of the evidence of the plaintiff/respondent since the issueQ had already been framed by this court prior to inadvertently sending the case to and assumption of jurisdiction by Senior Civil Judge. The step taken and proceeding held by Senior Civil Judge being contrary to the law envisaged in Order XXXVII, Rule 1, C.P.C. Hence the judgment of the Additional District Judge, South Karachi on the basis of the evidence recorded by the Civil Court to whom the suit was inadvertently entrusted suffered from the proper exercise of jurisdiction.
12. In view of the above the order dated 22-1-2007 is set aside. Consequently, the judgment and decree in Suit No,471/2003 are also set aside and the case is remanded to the District Judge, South Karachi for further proceedings from the stage onward when it was initially transferred from High Court on change of pecuniary jurisdiction.
13. That by short order dated 28-8-2008 I allowed this Revision Application which is reproduced as under:- "For the reasons to be recorded later on, this Revision Application is allowed. The learned District Judge is directed to call the R&P from the Court of A.D.J. VIIth South and transfer to some other A.D.J., and the transferee Court shall conclude the case expeditiously preferably within 4 months from the date of receipt of his order. The transferee court would initiate the proceedings from where this Court had left.
14. These are the reasons for the above short order.