1. ' Counsel for the parties agree that they are prepared to argue this appeal which may be disposed of today finally on merits.
2. ' This is a civil miscellaneous appeal under section 104 read with Order 43, Rule 1, C.P.C., directed against an order dated 22-7-1998 passed by learned III-Senior Civil Judge, Karachi-West, in Suit No,76 of 1990 (M/s. Sassi Associates (Pvt.) Limited v. Trustees of The Port of Karachi KPT) whereby an application under Order 9, Rule 9 read with section 151, C.P.C., filed by the appellants was dismissed hence this appeal.
3. ' Brief facts of the case are that the appellants filed Suit No,76 of 1990 before the High Court against the respondents for specific performance of contract and permanent injunction which was transferred to the District Court, Karachi-West, in the year 1996 for want of pecuniary jurisdiction who transferred the same to the Court of III-Senior Civil Judge, Karachi-West, where after, Court motion notices were ordered to be issued to the parties and their counsel and Court motion, notice was served upon the respondents/defendants but it could not be served upon the plaintiffs and their counsel, ultimately on 20-10-1997 Court motion notice was ordered to be served by pasting and the matter was adjourned to 8-12-1997 for effecting service upon the plaintiffs through Court motion notice, on which date bailiff returned the Court motion notice with the endorsement that "I Jehangir Ahmad Bailiff on oath state that on 1-12-1997 he went with a notice on the given address of Advocate's office, but the office of the counsel was found closed hence he made enquiries from the neighbouring counsel who informed that the office of said advocate was lying closed since long hence in view of the orders of the Court one copy of the notice was pasted and no witness was available hence could not get attestation and the process is returned for further directions."
4. After the receipt of above report the matter came up on 8-12-1997 before the learned III-Senior Civil Judge who observed that "notice returned along with bailiff report order passed thereon" and service on the appellants/plaintiffs was held good and the case was adjourned to 20-1-1998 for further proceedings on which date none was present from the appellants'/plaintiffs' side and at 10- 45 a.m. Counsel for the respondents/ defendants was present and the suit of the appellants/plaintiffs was dismissed for non-prosecution. After the dismissal of suit an application under Order 9, Rule 9, C.P.C., read with section 151, C.P.C., was filed on behalf of the plaintiffs by one Mr. S. Musarat Ali, Advocate which was dismissed as per impugned order.
5. ' I have heard learned counsel for the parties and perused the record , and proceedings of the case.
6. ' Counsel for, the appellants has argued that the service held good on 8-12-1997 was not in accordance with law and rules, therefore, subsequent proceedings taken on the basis of said service cannot be said to be legal and proper consequently dismissal of suit in absence of due service was not legal and liable to, be set aside in this appeal. He further contended that in application under Order 9, Rule 9, C.P.C., the counsel has shown a cause that he could not appear which was sufficient, therefore, the Court of III-Senior Civil Judge, Karachi-West, should have set aside the dismissal order.
7. ' Learned counsel for the respondents has argued that the service was properly held to be satisfactory and good and further that the counsel who filed an application under Order 9, Rule 9, C.P.C., had no power at the time when the suit was dismissed, therefore, his cause shown of his being absent on the date would be of no consequences, therefore, the impugned order is legal and proper and called for no interference. He has placed reliance upon (i) Sakhi Muhammad v. Mst. Taj Begum and four others (1985 CLC 734), (ii) Punjab Livestock Diary and Poultry Development Board v. Sheikh Muhammad Younus (1980 CLC 1932) and (iii) Azad Jammu and Kashmir Government v.
8. Habibullah Lone PLD 1984 SC (AJ&K) 13 in support of his contention. He has also referred to Order 3, Rule 4, C.P.C., and Rule 50 of Sindh Chief Court Rules. Learned counsel for the respondents has also contended that the learned counsel for the appellants has only taken up the plea for the setting aside the order that the counsel Mr. S. Musarat Ali was busy before the High Court and no other plea was taken before the learned. III-Senior Civil Judge, Karachi-West.
9. The only relevant point in this appeal is whether the service held good on 8-12-1997 could be said to be legal and in accordance with law and rules. I have gone through the provisions of Order 5, Rule 20, C.P.C., as well as Rule 109 of Sindh Civil Court Rules but find that there has been no compliance for the issuance of the notice to be served by pasting and there has been nothing on the record to show that the appellants/plaintiffs to be served was avoiding the service or was keeping out of the way for the purpose of effecting service upon him in order to resort to the provisions of Rule 20 of Order 5, C.P.C. Besides above there has been no endorsement of the bailiff in terms of Rule 109 of Sindh Civil Court Rules so as entitle the trial Court to hold the Service on the appellants/plaintiffs satisfactory. It is true that the ground shown by the counsel Mr. S. Musarat Ali of his absence on 20-1-1998 is of no consequences because he was then not representing the appellants/plaintiffs in the suit on the relevant date. However, as the order for effecting service upon the appellants through pasting was passed without compliance of provisions of Order 5, Rule 20, C.P.C., and further 'the endorsement of bailiff also did not mention that the service on the appellants was made in accordance with Rule 109 of Sindh Civil Court Rules, therefore, very foundation of passing of dismissal order based on the said service on 8-12-1997 being not proper and legal consequently dismissal of suit could not have been ordered in absence of due service upon the appellants.
10. ' Accordingly the impugned order is set aside and appeal is allowed and the case is remanded to the trial Court for its disposal in accordance with law.