1. ' This Miscellaneous Appeal is directed against the order dated 11-4-1989 passed by the IIIrd Senior Civil Judge, Karachi South, whereby the application under Order 9, Rule 13 was dismissed.
2. ' The facts leading to the filing of the above appeal are that the respondent filed a suit for recovery of Rs,75,786.00 against the appellant in the Court of XVIIth Senior Civil Judge, Karachi. The respondent's case as set out in the plaint was that he was employed as Legal-cum-Labour Advisor with effect from 22-2-1973 and then with effect from 11-5-1974 for a period of three years on the terms and conditions contained in a letter dated 11-5-1974. It is his further case that he was advised to continue on existing terms and conditions till such time another person could be appointed. It is his further case that he was not allowed to avail any privilege by the appellants.
3. ' On 20-11-1983 Mr. Bajwa Choudhry, Advocate filed power on behalf of the appellants and the case was adjourned to 18-12-1983 for written statement. Ultimately written statement was filed on 7-2- 1984. The case was adjourned from time to time till 14-1-1984. The suit was transferred to the Court of XVth Senior Civil Judge vide order dated 104-1985 of District Judge. The suit was fixed on 4-2- 1985. The learned counsel for the respondent waived notice. As the counsel for the appellants was not present, the suit was adjourned to 6-3-1985. It was ordered that Court motion notice be issued to the learned counsel for the appellants for 1-3-1985. On 6-3-1985 the learned counsel for the appellants waived the notice and the case was adjourned to 8-4-1985 for issues. On 8-4-1985 issues were settled and the case was put off to 15-5-1985 for evidence. On 15-5-1985 the case did not proceed and the same was adjourned to 16-7-1985. Again it was adjourned to 21-7-1985. On 21- 7-1985 the parties' counsel were present. Case was transferred to the concerned District of the South, who transferred it to the Vth Senior Civil Judge, Karachi East. On 4-9-1985 none was present.
4. It was ordered tO issue Court motion notices to the parties' counsel for 7-10-1985. Ultimately the case was fixed on 8-1-1986 when the clerk of the respondent's counsel waived the notice. Court motion notice for 9-2-1986 was issued and the same were issued from time to time till 19-8-1986. It was ordered to issue Court motion notice to the appellants and their counsel for 24-9-1986, 6-11- 1986, 16-12-1986. On 16.12-1986 it was ordered to issue Court motion notice to the appellants for 25- 1-1987. Again on 25-1-1987 Court motion notice was ordered to be issued to the appellants and their counsel for 11-2-1987. On 11-2-1987 notice on the appellants was served as per bailiff's report.
5. No service was effected on the appellant's counsel. The service on appellants was held good and the case was put off to 2-3-1987 for the evidence of the respondent. On 2-3-1987 the case was adjourned to 1-4-1987. On 1-4-1987 evidence of P.W. No, 1 Shafiullah Siddiqui was recorded. The case was adjourned for appellant's evidence to 19-4-1987. Presiding Officer of the Court was on leave on 19-4-1987 and therefore the case was adjourned to 29-4-1987 for the evidence of the appellants.
6. As the appellants were not present, the side of the appellants was closed. The case was adjourned to 25-5-1987 for arguments. Ultimately the arguments of the respondent's counsel were heard and the case was adjourned to 30-7-1987 for judgment. The case was adjourned from time to time till 31-8-1987 when the suit was decreed ex parte.
7. ' On 7-3-1988 the appellants filed an application under section 12(2) of the Code of Civil Procedure.
8. This application was dismissed on 2-10-1988. The appellants being aggrieved by the order dated 2-10-1988 filed Civil Revision Application in this Court which was withdrawn on 19-2-1989. The appellants resisted the application under Order 9, Rule 13, C.P.C. The contention of the appellants was that neither the Court motion notice was ever sent to the appellants nor the same was served upon the appellants. The further contention was that on 2-1-1988 the appellants received a notice from the Court regarding the execution of the above case and thereafter from the record of case file, the appellants came to know about the judgment dated 31-8-1987. The contention of the appellants was that the appellants were wholly unaware of the suit. They, therefore, contended that the appellants had sufficient ground for remaining absent on the dates in question.
9. ' In reply to the application, it was contended by the respondent that the appellants were duly served and that the appellants had no sufficient reason for remaining absent on the dates when the evidence of the respondent was recorded, the side of the appellants was closed and the arguments of the learned counsel for the respondent were heard and the ex parte judgment was passed.
10. ' The record shows that the Court motion notice was issued to the appellants and their counsel. The Court motion notice issued for 11-2-1987 shows that it was issued to "Karachi Electricity Supply Corporation and Ch. Bajwa, Advocate". The perusal of the report of the bailiff would show that he had gone to the Dealing Clerk who had affixed the seal of the Law Department of the appellants.
11. The Court motion notice was not served upon the counsel of the appellants.
12. ' On these circumstances the learned trial Judge recorded a finding that the service on appellants was held good by order dated 11-2-1987. The chances were given to the appellants to lead the evidence as the appellants did not lead any evidence, the ex parte judgment was passed. The application was, therefore, dismissed by the trial Court. It is against this order that the present Miscellaneous Appeal is filed by the appellants.
13. ' Number of arguments were advanced by both the sides but the entire question can be resolved in a limited compass. On the respondent's own showing the appellants have a registered office at Aimai House, Abdullah Haroon Road, Karachi. There is also no dispute that on that date the appellants were duly represented of their learned Advocate Mr. Bajwa Choudhry. In spite of this position, however, the respondent chose to serve Court motion notice upon the appellants at the office of the Law Department, Civic Centre and he chose not to serve upon the learned Advocate for the appellants. Such device could only be regarded If the real intention was to keep the appellants in the dark regarding the pendency of the suit. There is really no other explanation possible for such a behaviour as the respondent himself was employed as Legal-cum-Labour Advisor.
14. ' Mr. Ikram Ansari invited my attention to the provisions of Order 3, Rule 5 of the Code of Civil Procedure under which any process served upon a party's pleader is as effectual for all purposes as if the same had been given to or served upon the party in person, unless the Court otherwise directs. Mr. Ali Akbar, invited my attention to the fact that the Court had passed an order that notice be issued to the learned counsel as well as the appellants. Mr. Ali Akbar wanted to contend that the orders to the contrary as contemplated by the said rule 5 of Order 3 of the Code. It is impossible to accept this contention, when the Court directed that notice be issued to the appellants and their counsel who was already on record. The respondent, however, chose to follow the more cumbersome procedure of servicing the appellants through the clerk of the Law Department as per own contention, the respondent was serving as Legalcum-Labour Advisor. This was bound to resulting in the appellants' being kept in the dark regarding the transfer of the suit and fixing of the case for evidence. It is really unintelligible why simple task of giving notice though the appellants'
15. Advocate who was already on record was made complicated and difficult by trying to serve the clerk in the office of Law Department when the respondent was serving as Legal-cum-Labour Adviser up to 30-10-1982. Moreover, it appears that the respondent was himself aware of the exact registered office of the appellants. In any event he cannot run away from the fact that service of notice upon the appellants' Advocate would as well have served his purpose. It is not his case that appellants' learned Advocate had no authority to receive the Court motion notice. The respondent has to explain as to why Rule 3 of ,Order 5 and/or Rule 2 of Order 29 of the Code were not resorted to if the real intention was to make the appellants aware of the said suit having him transferred to the VIth Senior Civil Judge, Karachi. The only conclusion that can be drawn therefore is that every method was sought to be followed by the respondent for serving the appellants except the simplest one the just and the only effective one. Conclusion, therefore, is irresistible that the real intendment was to keep the appellants in the dark regarding the transfer of the suit or pendency of the suit. If that is so, it can hardly be said: (a) that the appellants were aware of the proceedings in question and (b) that the appellants had no sufficient cause for remaining absent on the date when the evidence of the respondent was recorded, the side of the appellants was closed, the arguments of the learned counsel for the respondent were heard and finally when the ex parte decree was passed.
16. ' Mr. Ali Akbar next argued that the application for setting aside the ex parte decree was hopelessly barred by time. This contention is devoid of force.
17. ' In Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97) it was held that the orders passed on 22-4-1960 directing ex parte proceedings were not valid orders. Order and decree passed ex parte were set aside. The dictum laid down in the above case is applicable to the facts of the instant case.
18. ' The other aspect of the case is that the learned counsel for the appellants, namely, Ch. Aziz Bajwa never informed the appellants about progress of the suit. The appellants had no knowledge about the transfer of the suit. The dictum laid down in Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others (1989 SCM R 883) is applicable to the facts of the instant case.
19. ' The cases cited by the learned counsel for the respondent are not applicable to the instant case.
20. ' The disturbing feature of the case is that under our legal system where the parties generally appear through their advocates, the obligation of the parties is to select their Advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things.
21. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. What is the fault of the party who having done every thing in their power and expected of them would suffer because of the default of their counsel. If I reject this appeal, as Mr. Ali Akbar invited me to do, the only one would suffer would not be the lawyer who did not appear or who did not inform the appellants about the transfer of the suit from one Court to another but the appellants whose interest he represented. The problem that agitates me is whether it is proper that the party should suffer for the inaction deliberate omission or misdemeanour of their agent. The answer obviously is in the negative. May be that, the learned Advocate absented himself deliberately or intentionally. I have no material for ascertaining that on the aspect of the matter.
22. However, I cannot be a party to innocent party suffering injustice merely because their chosen Advocate defaulted. The circumstances of the case do not establish negligence or carelessness on the part of the appellants.
23. ' In the result this appeal is allowed and the ex parte decree is set aside subject to the appellants paying a sum of Rs,500 to the respondent within one month. The suit shall be proceeded and disposed of from the stage of framing of issues, in accordance with the law by the Senior Civil Judge, Karachi East expeditiously.