' SADIQ HUSSAIN BHATTI, J.--- The appellant is aggrieved by the order dated 21-4-2011 passed by the VII Additional District Judge, Karachi South whereby his application under Order IX, Rule 13, C.P.C.
Read with section 12(2), C.P.C., was dismissed.
2. Brief facts of the case are that the respondent No,1 filed a suit under Order XXXVII, Rule 2, C.P.C.
Against the appellant and his brother Muhammad Naeem (respondent No,2 herein). Service was held good against the respondents vide order dated 16-7-2010 and the matter was kept for filing of leave to defend application by the respondents up to 10-8-2010. As no such application was filed, therefore, vide order dated 10-(sic)-2010, the suit was ordered to proceed ex parte against the defendants. The plaintiff/respondent No,1 filed ex parte proof and was examined as Exh.P/1. Since none appeared for the defendants, therefore, he was not cross-examined and the suit was decreed vide judgment dated 23-8-2010. Thereafter, the respondent No,1 filed execution application. Notices were issued to appellant but the same returned un-served. Thereafter, under the Court's orders, the appellant was arrested by police of Police Station Khawaja Ajmer Nagri on 6- 2-2011. He filed an application under Order IX, Rule 13, C.P.C. Read with section 12(2), C.P.C., which was dismissed vide the impugned judgment. Hence this appeal.
3. Leained counsel for the appellant submitted that no notice of the suit was served on the appellant and it was on the basis of wrong/false report of the bailiff/process server that the suit was ordered to proceed ex parte against the appellant. The learned counsel also submitted that the cheque- was not issued by the appellant, therefore, there was no privity of contract between the parties. The learned counsel also submitted that the period of limitation for filing the application under Order IX, rule 13, C.P.C. Read with section 12(2) thereof, is three years.
4. On the other hand, learned counsel for respondent No,1 raised objection with regard to maintainability of the appeal as, according to him, the mandatory requirement of notice to the respondent prior to filing of the appeal against an interlocutory order was not fulfilled by the appellant. He also stated that the application before the trial Court was filed beyond the period of limitation. He further submitted that the appellant was deliberately avoiding to appear before the trial Court and, therefore, he was rightly declared ex parte. The learned counsel relied on Mrs. Dino Manekji Chinoy and others v. Muhammad Matin (PLD 1984 SC 1).
5. I have heard the learned counsel for the parties and have perused the record and the case law cited before me.
6. First I will take the question of maintainability of the appeal.
' Learned counsel for the respondent questioned the maintainability of the appeal in view of Order- XLIII, Rule 3 of the Code of Civil Procedure contending that prior to preferring an appeal before this Court, the appellant was obliged to issue notice within the meaning of said provision of law being mandatory in nature which has not been complied with. The argument canvassed at the instance of the respondent though appears to be attractive in form but nevertheless cannot advance his plea in substance keeping in view the attending circumstances. The intention, wisdom and object of enacting the said provision was discussed by Hon'ble Supreme Court of Pakistan in Mrs. Dino Manekji Chinoy and others (supra) as follows:- "16. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the maintainability of the appeal."'
' It was further explained in para (18) of the Report that issuance of notice before presentation of appeal will intimate the respondent not only about assailing the vires of favourable order in his favour but also provision of right to contest the appeal at limine stage. Similar proposition was again reiterated by the honourable apex Court in SALAHUD DIN v. Syed MANSOOR ALI SHAH and others (1997 SCM R 414). Perusal of the order dated 25-1-2010 suggest that notice was required to be issued in the name of the respondent who put his appearance through an Advocate and as such objection regarding non-service of notice under Order-XLIII, Rule 3 of The Code of Civil Procedure becomes immaterial.
7. The provisions of Order XLIII, rule 3, C.P.C. Were also discussed in the case of Kohinoor Textile Mills v. Rawalpindi Cantonment Board (2011 CLC 1949) wherein it was held as under:--- "As far the prior notice under section 273 of the Act is concerned, the same is synonymous to the provisions of Order XLIII, Rule 3, C.P.C. The latter mentioned provision of law requires the sending of a notice before presenting an appeal against an order. If the respondent or the defendant in case of any such omission opts to appear in the Court of law, such appearance would amount to waiver of the notice."
8. Thus, it would transpire that (i) this provision would only be applicable where the suit is still pending but not in a case where the suit has already been decreed and (ii) if the respondent/defendant appears to defend the claim of the plaintiff/petitioner then such appearance would amount to waiver of the notice. In this case the suit was not pending at the time when the appeal was filed and the respondent also appeared which amounts to waiver of the notice even if the same was required to be issued. Thus, this objection fails'.
9. Learned counsel for the appellant raised three-fold contention--(i) that no notice was served on the appellant; (ii) that the address of the appellant was wrongly mentioned in the suit thus the plaintiff played fraud with the Court; and (iii) the limitation for the application before the trial Court was three years as provided under Article 181 of the Limitation Act and not 30 days as per Article 164 thereof.
10. So far as the question of service of notice upon the appellant is concerned, the impugned judgment dated 23-8-2010 clearly states that "the defendants In spite of service, remained absent.
However, in the interest of justice publication of notice of this suit was made In daily newspaper NAWA-E-WAQT in its Karachi issue dated 13-7-2010." Thereafter, service was held good and the suit was decreed ex parte as the defendants themselves chose to remain absent.
11. The next contention of Mr. Maroof Ali was regarding wrong address of the appellant. It was contended that the respondent No,1 has played fraud with the Court by giving wrong address of the appellant in the memo of the plaint. In the memo of the plaint the address of the appellant has been shown as: House No, A-332, Block D, North Nazimabad, Karachi. It is nowhere denied by the appellant that he never lived on the said address. The other defendant in the suit was real brother of the appellant and he has also not denied that his address is wrong. This amply proves that the parties were having business relations and the appellant, after investment made by the respondent No,1 in his business, .Was trying to avoid repayment of the same. Although with the alleged rent agreement filed by the appellant, the CNIC of the landlord is available but the copy of CNIC of the appellant is missing. It is clear from the impugned judgment that every effort, including publication, was made to enable the appellant to appear before the. Court but he avoided to appear and defend suit. Therefore, after publication of the notice, the service was held good and the suit was decreed ex parte.
12. As regard the question of limitation, admittedly the application before the trial Court was filed for recall of ex parte decree. Article 164 of the Limitation Act provides a period of 30 (thirty) days for filing an application by the defendant for an order to set aside a decree passed ex parte. Article 181 of the said Act deals with application for which no period of limitation is provided in the schedule to the Limitation Act or by section 48 of the C.P.C., which is not applicable in the present case.
13. The upshot of the above discussion is that this appeal has no merit and is, therefore, dismissed in limine together with all pending applications.