' AQEEL AHMED ABBASI, J.---Through instant petition the petitioner has assailed the impugned order dated 23-5-2008 passed by the learned IIIrd Additional District Judge Karachi East, in Civil Revision No,74 of 2006.
2. Brief fact leading to filing the instant petition appears to be that the respondent No,1/plaintiff filed a suit bearing No,1636/2002 (O1dSuit No,1810/99) for specific performance of contract, damages and permanent injunction before this Court with the following prayer:--
(a) To direct the defendant to complete the said transaction by executing sub-lease of suit property bearing Shop No,SC-7, Sea Breeze Doctors Plaza (The Plaza) situated on Plot No,16-A, Block-6, P.E.C.H.S. Shahra-e-Faisal Karachi, before Sub-Registrar Karachi in favour of the plaintiff and in case of failure of the defendant the Nazir of this Hon'ble Court may be directed to perform the above said act on behalf of the defendant.
(b) To direct the defendant to hand over vacant and peaceful possession of the shop bearing No,SC-7, Sea Breeze Doctors Plaza (The Plaza) situated on Plot No,16-A, Block-6, P.E.C.H.S., Shahra-e- Faisal Karachi.
(c) To direct the defendant to pay Rs,20,00,000 (Rupees Twenty Lacs only) to the plaintiff as damages.-
(d) To grant permanent injunction by restraining the defendants, their agents, their employees, or any other on behalf of the defendant for gifting, transferring, selling, allotting the suit property bearing Shop No,SC-7, Sea Breeze Doctors Plaza (The Plaza) situated on Plot No,16-A, Block-6 P.E.C.H.S. Shahra-eFaisal Karachi."
3. The suit was contested by the petitioner/defendant-by filing their written statement. Issues were settled by this Court and thereafter on administrative grounds i.e,, change in pecuniary jurisdiction, the matter was transferred to the court of District Judge, Karachi East, where it was allotted new suit number as 1636/2002 and subsequently the same was transferred to the trial Court on 10-12- 2002.
4. Summons/notices were sent against the respondent No,1/plaintiff, which could not be served upon her, however, statement of bailiff was recorded on 9-4-2003 and service was held good and the matter was fixed for evidence of the respondent/plaintiff, thereafter vide order dated 7-8-2003 the suit was dismissed for non-prosecution. On 9-5-2005, advocate for the respondent/plaintiff appeared before the trial Court and moved an application under Order IX Rule 4, C.P.C. For recalling the order dated 7-8-2003, which was dismissed by the learned IInd Senior Civil Judge, Karachi East vide order dated 12-8-2006.
5. The said order of the learned trial court was challenged by the respondent/plaintiff through civil revision application, which was allowed, the impugned order passed by the learned IInd Senior Civil Judge Karachi East was set aside vide order dated 23-5-2008, and the suit dismissed for non- prosecution was restored to its original position. Being aggrieved by such order, the petitioner/defendant has filed instant petition with a prayer to set aside the order passed by respondent No,2 and further with a prayer that the order dated 12-8-2006, passed by learned trial Court in Suit No,1636 of 2002 may be upheld.
6. Learned counsel for the petitioner argued that the learned IIIrd Additional District Judge Karachi East had no authority or jurisdiction to entertain a civil revision, as per learned counsel, against an order passed under Order IX, Rule 4, C.P.C. Only an appeal under Order XLIII Rule 1(c), C.P.C. Is maintainable. Per learned counsel, application for restoration of the suit filed by the respondent plaintiff was hopelessly barred by time as under Article 163 of the Limitation Act, whereas specific period of 30 days has been prescribed for presenting any such application and there was no logic for applying the provision of Article 181 of the Limitation Act. Per learned counsel, in para 3 of the impugned order, it was observed that after recording the statement of the bailiff the service was held good and the matter was fixed for evidence but while recording reasons for his order in paragraph 9 of the order, the learned Appellate Court wrongly observed and commented that the case was not fixed for hearing on the date it was dismissed. It has been further argued by the learned counsel for petitioner that no plausible explanation was given by the respondent in its application under, Order IX, Rule 4, C.P.C. For non-appearance in the Court nor any application seeking condonation of delay of about 2 years was filed in spite of such fact that learned IIIrd Additional District Judge Karachi East allowed the revision application by restoring the suit with the direction to the trial Court, for proceeding in accordance with law. Learned counsel while concluding the arguments submitted that the impugned order passed in Civil Revision No,74 of 2006 is therefore, contrary to law and facts, hence liable to be set aside.
7. Conversely, learned counsel for the respondent No,1 argued that the impugned order passed by the learned Appellate Court is based on proper appreciation of law and facts, hence does not require any interference by this Court in its extraordinary constitutional jurisdiction. Per learned counsel, there is no illegality or error in the impugned order, as the learned trial Court failed to consider that no court motion notice was issued after transfer of the case on administrative ground whereas the same was required to be served in terms of section 24-A, C.P.C. Per learned counsel, learned trial court did not issue a single summon or intimation notice even to the counsel for the respondent/plaintiff in terms of Order III Rule 4, C.P.C., hence did not give any opportunity to adduce evidence in respect of the claim of respondent/plaintiff. It has been further argued by the learned counsel for respondent/plaintiff that from record it is evident that the respondent/plaintiff or her counsel was never served with the court motion notice whereas report of bailiff regarding purported service through pasting does not reflect that as to under what circumstances, and upon whom the said service was effected. It is further contended that from statement of the bailiff it appears that the service of summons/notice was made upon the petitioner/defendant. In the statement of bailiff, he has clearly stated that he went at the given address where one Chowkidar namely Abu Zar informed him that G.M. (General Manager) comes to office once in a week hence pasted a copy of the notice. Per learned counsel, the learned trial Court failed to appreciate this aspect of the matter hence erroneously held service good upon respondent/plaintiff instead of petitioner/defendant. In support of his contention, learned counsel has placed reliance on the case of Port Qasim Authority and another v. Mistle-2 Corporation 2001 YLR 1116 and Mst. Roshan. Jehan and 6 others v. Mst, Noor Jehan 1994 M LD 664.
8. We have heard both the learned counsel and perused the record It appears that the chronology of the events relating to filing of suit by the respondent/plaintiff initially before this Court, filing of written statement by the petitioner/defendant, and settlement of issues by this Court, has not been disputed by the parties, however, service of Court motion notice after transfer of the case from the High Court to the Court of District Judge Karachi East on administrative grounds, on account of change in pecuniary jurisdiction, and subsequent transfer to the learned End Senior Civil Judge Karachi East on 10-12-2002 has seriously been disputed by the respondent/plaintiff. In view of the contentions raised by the parties, it is evidently clear that the matter requires consideration with regard to the applicability of the provisions contained under section 24-A, C.P.C. And the provisions of substituted service as postulated under Order V, Rule 20, C.P.C.
9. From perusal of the impugned order and the case diary of the learned trial Court placed on record, it appears that the respondent plaintiff was not served with the court motion notices by the learned trial Court through normal process, whereafter service by way of pasting by bailiff upon the respondent/plaintiff has been shown. Such purported service is seriously doubtful, as in the statement filed by the bailiff, neither the time and name of the party upon whom service was effected, nor the address on which the purported pasting was made has been mentioned. On the contrary, it has been stated by the bailiff that on inquiry from Chokidar Abu Zar it was learnt that "G.M. Sahab comes in the office once in a week," hence notice was pasted. No independent witness has been associated while effecting such service through pasting. From perusal of the statement of biliff, it appears that such process was served upon the petitioner/defendant and not on the respondent/plaintiff.
10. Where the cases are transferred on account of administrative order from one Court to another, provisions of section 24-A, C.P.C. Are attracted which regulate the mode and manner of issuance of Court motion notice, and its service by Court upon parties. It will be advantageous to reproduce section 24-A, C.P.C. Hereunder for the sake of brevity.
"24-4. Appearance of parties on transfer of suit, etc... (1) Where any suit is transferred under section 22, or any suit, appeal Or other proceeding is transferred or withdrawn under subsection
(1) of section 24 on the application of a party, the court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.
(2) Where any suit, appeal or other proceedings is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such court shall then communicate the order of transfer to such parties and direct them to appear before the court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such, earliest day as may be reasonable having regard to the distance at which the other Court is located. "
11. Section 24-A subsection (2), C.P.C. Provides that where any suit, appeal or other proceeding is transferred from one Court to another otherwise than on the application of a party, the parties are entitled to court motion notice by transferee Court. In the case of S. Irshad Hussain and another v.
Azizullah Khan and another 1987 SCM R 150, the Hon'ble Supreme Court has held that on account of transfer by administrative order the original Court is required to keep a note of the particulars of the case and of the transferee Court, so that when parties appeared they should be intimated of the order of transfer. It has also been made obligatory on the original Court to direct the parties to appear before transferee Court. In the instant case first diary dated 10-12-2002 of IInd Senior Civil Judge Karachi East reads as under:-- "10-12-2002 ' Case received by way of Transfer from honourable High Court through honourable District and Sessions Judge, Karachi-East. Vide order No,A/E 3732/2002, Karachi, dated 30-11-2002, vide honourable High Court Gazetted No, XVI-A/127 dated 24-4-2002. Office is directed to send list of all cases to administration Karachi East. Case put off to 17-12-2002 for further proceedings."
12. In the case of Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCM R 926, the Hon'ble Supreme Court while examining provisions of Order IX Rule 13 and section 24-A(2) and maintaining the order of the High Court whereby the matter was remanded to the learned trial Court who passed an ex parte order, was pleased to observe as follows:- "Before concluding the above judgment, we observe it appears that the subordinate Courts are not following the provision of section 24-A(2), C.P.C. Inasmuch as the transferor Court though specifies the next date of hearing but does not give direction in terms of the above provision to the parties to appear before the transferee Court, with the result that some of the parties do not appear and the cases are lingered on for the service of Court motion notice. In the present case, the Court motion notice could not be served on the respondent in terms of the C.P.C. In spite of expiry of nearly 1-1/2 years from the date of the transfer of the suit from the Court of learned Vth Senior Civil Judge to the Court of learned Vlth Senior Civil Judge. It will be appropriate that the office may send a copy of this judgment to the learned Chief Justices of the High Courts for drawing their attention to the above aspect and if they feel it is proper to issue instructions to the subordinate Courts, they may do so."
' Reference in this regard can also be made to the case of S. Irshad Hussain and another v. Azizullah Khan and 3 others 1987 SCM R 150. Similar view has been followed in the case of Port Qasim Authority and another v. Mistle-2 Corporation 2001 YLR 1116, relied upon by the learned counsel for the respondent/plaintiff.
13. In view of hereinabove facts, and from perusal of case diary of the learned trial Court, it is evident that after transfer of the case on administrative ground i.e, on account of change in pecuniary jurisdiction provisions of section 24-A(2), C.P.C. As well as provisions of Order V, Rule 20, C.P.C. Were not observed by the learned trial Court hence, the respondent/plaintiff could not be served, which resulted in an ex parte order of dismissal of the suit. Nothing has been brought on record by the learned counsel for the petitioner to show that the respondent/plaintiff or her counsel was duly served with the Court motion notice or she has avoided to receive summons or Court motion notice.
14. As per case diary of the learned trial Court, it appears that on 11-1-2000 for the first time, Court motion notice was directed to be issued to the plaintiff or his counsel, however, from record it is seen that such notices were never served upon the respondent/plaintiff or her counsel. It will not be out of place to observe that alleged service upon the respondent/plaintiff by way of pasting, besides being seriously doubtful, is otherwise violative of the provisions of Order V Rule 20, C.P.C.
Which deals with substitute service. Resort to substitute service is to be made only when all efforts to effect the service in the ordinary manner are verified to have been failed or it is reported that party is deliberately avoiding to receive summons, whereas no such verification of facts is available on record in the instant case.
15. In cases where a party is not served through normal process, resort to substitute service through different modes including, by affixing a copy of summons at some conspicuous part of the house where the party is known to have last resided or carried on business or personally worked for gain; through any electronic device of communication E including telegram, telephone, phonogram, telex, fax, radio and television, urgent mail service or public courier services; publication in newspaper; or any other manner; or mode as the court may think fit. However, the Court is competent to issue process through all modes or any of the aforesaid modes of service simultaneously.
16. In the case of Haji Akbar and others v. Gul Baran and 7 others 1996 SCM R 1703, the Hon'ble Supreme Court while examining validity of substitute service through publication has held as under:-- "The pre-conditions for a substituted service as required by Code of Civil Procedure may not be strictly made applicable but publication should be made only after satisfaction that the defendant' cannot be served personally or by post or that he is avoiding service. In the present case as personal service could not be effected, the notice could be sent through post as postal' service which was operating between Pakistan and Afghanistan. No such step was taken. When any Authority or Tribunal is empowered to decide a case involving rights of the parties, it exercises quasi-judicial power and the principles of justice which are inherent in deciding the disputes between the parties should be followed. If the procedure and mode of service-is left to the discretion of such authority, then it should be exercised in a proper and judicious manner keeping in view that opportunity has to be given to the parties to enable them to defend the case.
Straightaway publication of a notice in a local newspaper as in this case could hardly be termed as a proper service and-notice to the parties."
' Similarly view has been taken by the Hon'ble Supreme Court in the case of Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCM R 99
17. As regards objection regarding maintainability of revision application against an order passed on application under Order IX Rule 4, C.P.C., the same appears to be misconceived, as no appeal is provided in terms of Order XLIII Rule (1)(c), C.P.C. Against an order passed under Order IX Rules 2 and 3 or rule 4, C.P.C. As the order passed is merely an order and not a judgment and decree. In the case of Mst. Noor Jehan v. Mst. Roshan Jehan and 6 others 1994 SCM R 2265, the Hon'ble Supreme Court while dealing with the subject has held as under:-- "(5) We are convinced that although the order dated 3-4-1991 of the trial Court was not an appealable order, yet under section 115(2), C.P.C. The District Judge had revisional power to deal with it so it will be deemed that the appeal was actually heard and decided as a Revision. In this view of the matter order dated 26-10-1991 of the District Judge could be treated as a revisional order precluding further interference by the High Court under section .115(4), C.P.C. And as such impugned order/judgment is without jurisdiction authority.
(6) As far the alternate argument of the learned counsel, the learned District Judge had the legal authority to interfere with the order dated 3-4-1991 as a revisional Court, therefore; it was/is not possible to declare/hold that the order dated 26-10-1991 passed by him was without lawful authority and of no legal effect. The case-law cited by the learned counsel for the respondent is quite distinguishable."
' Reference in this regard can also be made to the case of Mst. Roshan Jehan and 6 others v. Mst.
Noor Jehan 1994 M LD 664 appears to be correct.
18. Similarly, objection regarding limitation is also misconceived as in the instant case, since plaintiff was never served with the Court motion notices and the suit was dismissed for non- prosecution on 7-8-2003 in terms of Order IX Rule 3 C.P.C. When the respondent/plaintiff did not appear. An application under Order IX Rule 4, C.P.C. Was filed by the respondent/plaintiff which provides that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit or he may apply for an order to set the dismissal aside. No appeal is provided against an order passed on an under Order IX Rule 4, C.P.C. Such fact can be verified from perusal of provisions of Order XLIII Rule, C.P.C.
19. As regards objection relating to maintainability of the revision on the point of limitation, which according to learned counsel for the petitioner is thirty days in terms of Article 164 of Limitation Act, and not three years as provided under Article 181 of the Limitation Act appears to be misconceived as in the instant case no notice was served upon the respondent/plaintiff and the learned trial Court dismissed the suit of the respondent/plaintiff without proper service hence the said order was coram non judice, whereas limitation does not run against void order.
20. In the case of Karachi Shipyard and Engineering Works Ltd., v. M. Nizamuddin 1988 CLC 1208, learned Single Judge of this Court while dealing with the restoration of suit dismissed for non- prosecution in terms of Order IX Rule 4, C.P.C. Has held as under:- "It is an admitted position that after transfer of the case no notice of transfer was issued either to the plaintiff or his counsel. The facts mentioned above support the contention of applicant that he had no notice of transfer of the case from Court No,XlVth to Court XVIth. In these circumstances the order dismissing the suit for non prosecution passed on 21-11-1978 was an order wholly without jurisdiction and as such the question of limitation in such circumstances does not arise as no one should suffer for the act of the Court. 1 accordingly accept this revision application, set aside the order of the Courts below and remand the case back with the direction that the case will proceed from the stage for filing of written statement by the respondent and will be disposed of in accordance with the law."
21. In the case M. Saadullah and 28 others v. Tahir All and 2 others reported as 1986 CLC 2643, a Division Bench of this Court while dealing with an ex parte decree passed against the defendant who was not served with the court notices has held as under:- "The order, dated 10-1-1981 by Civil Judge refusing to set aside the decree passed; on 22-12-1977 is illegal on another ground that a case based on the proposition that an application under Order IV, Rule 13 made by petitioners after 30 days of the decree, dated 22-12-1977 was time-barred as Article 164 of the Limitation Act applied. However, we have seen that the said decree was not passed on the first date of hearing but it was passed after the case had been transferred from one Court to the other and then from the second Court to.The 3rd Court and that too without notice to the petitioners and hence Article 181 of the Limitation Act which prescribes a period of three years is applicable in the case as held in PLD 1981 SC 21 and, therefore, the order of the C.J.
Was also vitiated by the illegal view that it had taken."
22. We are further fortified in our view by placing reliance on the case of Messrs Rehman Weaving Factory (Regd) Bahawal Nagar v. Punjab Smal Industries Corporation Lahore reported as PLD 1981 SC 21, wherein Hon'ble Supreme Court has held as under:- "When any cause is shown for non-appearance at the first hearing whether non-service of 'summons' or any other sufficient cause e.g. An accident on the way on act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of knowledge of the decree, when the 'summons' was not duly served; otherwise from the date of decree. And the remaining cases other than those of first hearing, would not be governed by Article 164.
' The next question arises as to what would be the period of limitation for an application for setting aside an ex parte decree, not concerned by Article 164. That application may or may not be under section 151. It could still be under the second part of rule 13 of Order IX though in some cases section 151 might also apply. When defendant makes an application under Order IX, Rule 13 in connection with an ex parte decree which is not passed under Rule 6 of Order IX (on the first hearing), it would not be governed by Article .164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of "null and void order" on the question of limitation; LI simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the exercise of rationalization, in the light of experience, gained during three quarters of a country."
23. In view of the facts and the case-law referred to hereinabove, we are of the view that the impugned order passed by learned IlIrd Additional District Judge Karachi East in Civil Revision No,74 of 2006 does not suffer from any legal or factual error hence, does not require any interference by this Court, under its constitutional jurisdiction. Accordingly, instant petition being devoid of any merits is hereby dismissed along with listed application with no order as to cost.
24. However, learned trial court is directed to decide the case preferably within a period of six months from the date of receipt of this order, keeping in view the National Judicial Policy.