1. ' This revision application arises out of two orders, one dated 12-12-1987, passed by the XII Civil Judge Second Class, Karachi, who dismissed an application under Order 9, Rule 13 read with section 151, C.P.C. Moved by the applicant and the other dated 27-1-1988 passed by first appellate Court of V Additional District Judge (South), Karachi who dismissed Misc. Civil Appeal of the applicant filed against the order dated 12-12-1987 of the trial Court.
2. ' The facts in brief are that the respondent filed a suit against the applicant for damages on account of malicious prosecution. The case of the respondent in the suit was that the applicant had moved an application against him before the Assistant Commissioner and S.D.M., Karachi under section 107/117, Cr.P.C. And in pursuance of such application the respondent had to appear in the said Court and executed personal bond in the sum of Rs, 1,000 pursuant to an order passed by the SDM under section 112 of Criminal Procedure Code. The proceedings so initiated against the respondent were disposed of but according to the respondent the application so moved against him was not only malicious but had caused mental agony to him and also loss of reputation. These were the facts on the basis of which the respondent filed a suit for damages for Rs,10,000.
3. ' The applicant was served in the said suit and she filed written statement on 19-12-1972 denying the assertions of the respondent in the plaint The issues were settled by the trial Court on 21- 104976. Thereafter, the suit was transferred on 18-2-1978 to the Court of Civil Judge XIV and again on 21-10-1978 the suit was transferred to Court No, XXII. On 9-11-1978 which was a date for service of Court motion notice, of which the applicant had no notice nor she was served, one Mr. Abdul Majeed, Advocate, appeared for her and waived notice. The evidence of the respondent was recorded on 7-1-1979 and the suit was posted for evidence of applicant/defendant on 14-1-1979 but as the applicant was unaware of the Court in which the suit was pending and also the date of hearing, she remained absent and the case diaries show that the suit was adjourned to 16-1-1979.
4. On this date also since the applicant defendant was absent the suit was decreed for Rs,10,000 with costs.
5. ' On 16-12-1980 the notice of execution was served on the applicant whereafter she came to know about the decree having been passed against her ex parte and on 12-1-1981 she moved an application under Rule 13 of Order 9 read with section 151, C.P.C. Giving the grounds in her affidavit on the basis of which she sought setting aside of ex parte decree. This application was dismissed on 12-12-1987 whereafter she filed Miscellaneous Appeal which too had been dismissed by order dated 27-1-1988. These two orders are now under challenged in this revision application.
6. ' The learned counsel for the applicant, Mr. M. Salim Iqbal, has contended that on 9-11-1978 when the matter was fixed before the trial Court for service of Court motion notice, one Mr. Abdul Majeed, Advocate seems to have appeared and waived notice on behalf of the applicant. This Mr. Abdul Majeed, Advocate, was neither the applicant's Advocate nor his Vakalatnama was filed and in these cirumstances the trial Court, without verifying the record accepted the waiver of Court motion notice by Mr. Abdul Majeed, Advocate. He has also contended that this fact was specifically urged in the affidavit filed alongwith the application for setting aside the ex parte decree but the trial Court never adverted to this aspect of the case and proceeded to dismiss the application which was an illegal order. It is also contended that the first appellate Court dismissed the Misc.
7. Civil Appeal only on the ground and by a short order that a notice as required to be given by the applicant under Order 43, Rule 3, C.P.C. Before filing appeal was not given. The first appellate Court has also not discussed the merits of the case. It is contended that the first appellate Court, before admitting the appeal give pre-admission notice to the respondent on 7-1-1988 and on such notice the respondent has appeared and filed his counter-affidavit on 20-1-1988 and in these circumstances the defect of non-service of notice under Order 43, rule 3 was cured and the appeal could not have been dismissed on that short ground. In support of his contention the learned counsel has placed reliance on PLD 1983 SC 693 where the Hon'able Supreme Court held that the Division Bench who issued preadmission notice to Advocate of the respondent who was present on pre-admission notice, the object of Order 43, rule 3 was satisfied in substance. It was also held that the right of a party cannot be allowed to be defeated for failure to comply with form where substance have, in fact, been complied with.
8. ' Mr. Dilawar Hussain, Advocate, who is respondent himself, has contended that a service of prior notice under Order 43, rule 3, C.P.C. Is mandatory and in absence of such notice the first appellate Court rightly dismissed the appeal of the applicant. In support of his contention he has referred to 1987 CLC 1750, 1980 CLC 242 and 1987 CLC 1177.
9. ' I have heard the learned Advocates and gone through the R&P of the lower Courts. It is an admitted position that on 9-11-1978, a date which was fixed for service of Court motion notice on the applicant, no notice was served on her. Mr. Abdul Majeed, Advocate who appeared on her behalf was not her counsel nor could he endorse waiver of Court motion notice. The R&P of the trial Court seems to have been misplaced and new file was constituted which also does not show the name of Mr. Abdul Majeed, Advocate, as duly appointed Advocate of the applicant. The ex parte judgment against the applicant needed to have been set aside by the trial Court particularly when it was specifically pleaded so by the applicant in her affidavit in support of application under Order 9, rule 13, C.P.C. The trial Court never discussed in its order the assertions made by the applicant and simply dismissed the application. The first appellate Court dismissed the Misc. Civil Appeal on the ground of failure of the applicant to serve a notice under Order 43, Rule 3, C.P.C. Before filing the appeal. He has also not touched the merits of the case. In view of the judgment reported in PLD 1983 SC 693 referred to above, the defect in serving notice under Order 43, rule 3, C.P.C. Before filing of the appeal stood cured upon pre-admission notice having been given by the learned first appellate Court to respondent before admission and hearing of the appeal. The appeal, therefore, could not have been dismissed on that legal ground.
10. ' Remanding the case to first appellate Court to decide the appeal, in my view, shall not meet the ends of justice and it is, therefore, proper that both the orders of the trial Court dated 12-12-1987 and the first appellate Court dated 27-1-1988 are declared to have been passed illegally and with material irregularity. The same are hereby set aside. The case is remanded to the trial Court of Second Senior Civil Judge/ASJ, Karachi (South) who shall issue notice to the parties and proceed to hear and decide the application under Order 9, rule 13 read with section 151, C.P.C. Moved by the applicant on merits, taking into consideration the grounds in the application and the affidavit taken by the applicant. In these circumstances, the parties shall bear their own cost.