1. ' ZAFFAR HUSSAIN MIRZA, J.---This is a petition for leave to appeal against the judgment dated 12th November, 1989, whereby learned Single Judge of the Sindh High Court, accepted the miscellaneous appeal of the respondents and set aside the ex parte decree passed in favour of the petitioner, remanding the suit to the trial Court for disposal according to law.
2. ' The facts leading to the present petition are that the petitioner filed a suit for recovery of Rs,75,786 against Karachi Electric Supply Corporation, respondent herein, as dues and emoluments of service rendered by him with the respondents. The respondents were served with the summons and put in appearance through their counsel before the trial Court. They filed a written statement contesting the claim of the petitioner.
3. ' It appears that due to administrative reasons the suit was transferred and received by the III Senior Civil Judge, Karachi, from the Court of Vth Senior Civil Judge, Karachi. Court motion notices were ordered to both advocates for the parties. On 8th January, 1986, the petitioner's advocate waived notice and therefore Court motion notice was ordered to the respondents and their Advocate. On 11th February, 1987, service was held good by the Court on the respondents, which according to the report of the bailiff was delivered to the dealing clerk in the office of the respondents who had affixed the seal of the respondents on the office copy of the notice in token of receipt thereof. However, admittedly notice could not be served on the Advocate of the respondents in spite of attempts as he was not available. After this the suit was proceeded with and evidence of the petitioner was recorded ex parte. On 29th April, 1987, when the case was called for recording the evidence of the respondents no one was present with the result that their side was closed. Ultimately the suit was decreed ex parte on 31st August, 1987.
4. ' Respondents then applied for setting aside the ex parte decree under Order IX, rule 13, C.P.C. On the ground that the Court motion notice was never served on the respondents and consequently the service was wrongly held to be duly effected. By order dated 11th April, 1989, the learned Civil Judge dismissed the application. He took the view that the service was ordered to issue to the respondents. And their Advocate, and as it appeared from the report of the bailiff already referred to the notice was delivered to the dealing clerk of the respondents' Law Department, which was the manner in which the original summons was served and held as good service. In this view of the matter the learned Judge held that the respondents were duly served with notice.
5. ' It was in these circumstances that the miscellaneous appeal was filed by the respondents against the order of the trial Court dated 11th April, 1989, dismissing their application for setting aside the ex parte decree. The learned Single Judge who decided the appeal did not agree with the view taken by the learned Senior Civil Judge. On the question of service of notice he was of the opinion that it was improper to serve the party with notice when the party was represented by counsel before the Court. The learned Judge pointed out that under Order III, rule 5, C.P.C. Service of notice on the Advocate would have been as effectual as on the party. From this learned Single Judge concluded that the only intention was to keep the respondents in the dark with regard to the transfer of the suit from one Court to the other.
6. ' In support of the petition learned counsel contended that the learned Single Judge having found no infirmity in the service of notice on the respondents erred in holding that merely because the notice was not served on the Advocate of the party, the Court could not proceed ex parte against the respondents or that a sufficient ground was made out for the absence of the party on the date' of hearing. It was further urged that the learned Judge erred in taking the view that a deliberate attempt was made to keep the respondents in the dark as to the proceedings of the suit, when there was no such material on the record and the notice was served on the party on the direction of the Court itself. It cannot also be ignored that in spite of attempts made by the Court the respondents could not be served due to his non availability.
7. ' Finally as to the argument of the petitioner that the counsel for respondents was aware of the transfer of suit as the order for appearance before the transferee Court was passed in his presence, it was pointed out by the learned counsel, the learned Single Judge observed that the party should not suffer for the deliberate omission or misdemeanour of its agent, contrary to the law laid down by this Court in Muhammad Shafi v. Mst. Razia Ghafoor and others (1989 SCM R 479).
8. The points raised by the learned counsel are substantial questions which require consideration. We therefore allow this petition and grant leave to appeal.
9. ' Security for costs is the sum of Rs,2,000.
10. ' The appeal shall be made ready on the present record but it will be open to the parties to file additional documents, if any. The appeal shall be set down for early hearing. The proceedings of the suit in the trial Court shall remain stayed until the disposal of the appeal.