' The validity of the judgment dated 6-3-1978 pronounced by Ch. Abdus Saeed Sabir, the learned District Judge Rahim Yar Khan has been assailed in this regular second appeal who had dismissed the first appeal of the appellant and had confirmed the judgment dated 18-10-1977 of the learned Civil Judge Sadiqabad.
2. The facts leading to the instant appeal in substance are that Muhammad Yaqoob had business dealings with Jamal Din, the appellant. The appellant executed a deed of agreement in favour of Muhammad Yaqoob on 11-10-1973 reciting therein that he would supply 2,000 mounds of cotton to the respondent and received Rs, 10,000 as advance money by means of a cheque, Jamal Din appellant supplied 1,683 maunds of cotton and received Rs, 1,47,327 per receipt. On 15-12-1973, Muhammad Yaqoob, the respondent served a notice to Jamal Din that he intended to fix the rate of his cotton weighing 332 maunds at Rs, 95.50 per maund. The appellant refused to fix that rate before the Panchayat. There was a dispute about the rate of cotton and the balance amount and Muhammad Yaqoob the respondent sought the assistance of the learned trial court for the rendition of accounts.
3. Summons was issued to the respondent, who could not be served personally. He was served through substituted service for 29-11-1975 as envisaged under Order V, rule 20, C. P. C. He did not appear and the learned trial Court passed a preliminary decree on 5-1-1976 to the effect that the appellant was an accounting party. Pursuant to the preliminary decree a local commissioner was appointed who, after the examination of various documents, submitted his report on 22-1-1976.
4. The learned Civil Judge Sadiqabad found that the sum to be decreed exceeded his pecuniary jurisdiction and he sent the file to the learned District Judge Rahim Yar Khan, who transferred the suit to the Civil Judge at Rahim Yar Khan. The Civil Judge, Rahim Yar Khan effected substituted service of the appellant for 5-4-1977. The Civil Judge was on leave on that date and the case was adjourned to 28-4-1977 by his Reader. On 28-4-1977, the learned Civil Judge proceeded ex parte against the appellant without effecting fresh service as he relied on the service already effected for 5-4-1977.
5. The case was re-transferred to Sadiqabad. On 13-10-1977, the Civil Judge Sadiqabad issued notice to both the parties. On the same date, the respondent appeared and on the basis of the previous ex parte proceedings, the learned Civil Judge Sadiqabad passed the final decree on 18- 10-1977.
6. The appellant preferred the first appeal before the learned District Judge who adjudicated that proclamation in the newspaper against the appellant was published twice and on his failure to attend the Court, he did not deserve any indulgence or leniency in the matter, so his appeal was dismissed.
7. At the very outset Mr. M. M. Bhatti, Advocate, the learned counsel for the respondent with reference to S. 97, C. P. C. Has contended that the appellant could not assail the preliminary decree as he had not filed any appeal against the said decree. Section 97 of the C. P. C. Reads as under :- "Where any party aggrieved by a preliminary decree passed after the commencement of this Code not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
' It may be seen that the appellant is precluded from disputing the correctness of the preliminary decree in accordance with the provisions of section 97 ibid. In this manner, the appellant is an accounting party. Mr. Iejaz Ahmad Ansari Advocate, the learned counsel for the appellant has scrupulously conceded this proposition of law.
8. The suit was transferred to Civil Judge Rahim Yar Khan who effected substituted service of the appellant for 5-4-1977. On that date, the case was not heard and the case was procrastinated to 28-4-1977. The learned Civil Judge could not proceed ex parte against the appellant and was bound to issue a fresh notice to the appellant, although he had been proceeded; against ex parte in the original proceedings. In Muhammad Swalah and another v. M Is. United Grain and Fodder Agencies, it was held that the defendant was served for a date which was subsequently declared a Court holiday and the Court took up the proceedings on the following day without the service of a notice to the defendant and on his failure to appear, ex parte proceedings were ordered and it was held that such proceedings were not valid and the proceedings were set aside. Azizullah Khan and 4 others v. Arshad Hussain and 2 others lays down that a defendant, although proceeded against ex parte, is entitled to notice when the case is transferred by an administrative order from one Court to another.
9. It follows that when the suit is transferred by the Administrative order of the District Judge, then both the parties are necessarily to be served with a notice each, although the defendant may have been proceeded against ex parte before the said order. It may also be noted that the suit of the respondent was again transferred to Sadiqabad and the learned Civil Judge Sadiqabad received the file on 13-10-1977. The order dated 13-10-1977 shows that notices were issued to both the parties.
Subsequently on the same date, the respondent appeared and the learned Civil Judge, on the basis of the previous ex parte proceedings having been taken against the appellant, proceeded to continue the proceedings and pronounced the final decree five days later i. e. On 18-10-1977. As held supra, although the appellant had been proceeded against ex parte, he was entitled to be served with a fresh notice when the case was transferred to Civil Judge Sadiqabad by the administrative order of the District Judge Rahim Yar Khan.
10. Mr. M. M. Bhatti Advocate, the learned counsel for the respondent has diverted my attention towards section 24-A, C. P. C. Which found a place in the Code of Civil Procedure by Ordinance 441 2 of 1962 w. e. f. 17-6-1962. Section 24-A, C. P. C. May be reproduced infra for the facility of reference.
11.
(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 proceeding 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 proceedings is to be transferred, either on the same day, or on such earliest day as may be reasonable having regarding to the distance at which the other Court is located."
' It is a new and a convenient provision of law. Para. 2 of section 24-A. C. P. C. Envisages that when a suit is transferred from one Court to another, then the Court from which the suit is to be transferred should communicate the order of transfer to the parties and direct them to appear before the transferee Court on a reasonable date. In the instant appeal, I find that the parties were not communicated the order of transfer and no date was fixed before the learned Civil Judge Sadiqabad who was constrained to issue notices to both the parties on 13-10-1977. Had any definite date been given to the parties to appear before the transferee Court, the learned Civil Judge would have dismissed the suit of the respondent there and then. It appears that the date of hearing before the transferee Court was not at all communicated as required under sections 24-A, C. P. C.
And the appellant, who had been proceeded against ex parte, was entitled to be served with a notice after the transfer of the case.
11. It has been represented on behalf of the appellant that the full address of the appellant was not given in the plaint and the plaint was defective on that account. In the plaint, the appellant has been described as "Jamal Din son of unknown caste dashti Baloch resident of village Murid Shakh, Shopkeeper, Tehsil Obara District Sukker." The same address of the appellant finds a mention in the deed of agreement dated 11-10-1973. He could be identified properly by the said address and could be located in a small village of Murid Shakh. It has been pleaded that the appellant has changed his residence, so he could not know that summons had been issued to him. This argument does not find favour because in the case of change of address, it was incumbent on the appellant to have communicated the change of address to the respondent with whom he had made a solemn agreement to supply cotton.
12. In the light of what has been stated above, the appellant was entitled to receive a fresh notice for 28-4-1977 and also on 13-10-1977. I, therefore, accept this appeal and set aside the final decree passed by the learned Civil Judge. I also quash the findings of the learned District Judge sated 6- 3-1978. Since the preliminary decree cannot be disturbed, the case s remanded to the learned Civil Judge Sadiqabad with the directions to point a new local commissioner to go into the accounts and submit report. Thereafter, he should afford an opportunity to both the parties file their objections, if any, on the report of the local Commissioner and after setting their objections pass a final decree. Both the parties are directed appear before the learned Civil Judge, Sadiqabad on 26- 10-1982 for further proceedings in this suit. The file may be sent to the learned trial Court immediately. Due to the legal complexities involved in this appeal, I make no order as to costs. PLD 1964 SC 979 PLD 1975 Lah. 8791 2