MUHAMMAD AFZAL SOOMRO, J.--- Through this revision application the applicant has challenged legality, validity and propriety of the order dated 23.12.1999 passed by the learned Additional District Judge, Karachi East whereby an application under Order IX, Rule 7, CPC, filed by the respondent, was allowed.
2. The precise facts, as stated in the Revision Application, inter alia, are that the applicant being a practicing advocate was engaged by the respondent as his counsel to deal with certain legal affairs and a fee of Rs.3,50,000/- was settled as professional fee out of which an amount of Rs.
1,00,000/- was paid to the applicant as a token fee. The applicant made his best efforts to gel the legal matters of the respondent finalized but the respondent adopted different tactics to avoid payment of remaining professional fee. However, on strong persuasion of the applicant, the respondent issued crossed cheque No. 18588349, dated 17.3.1998 for Rs.2,50,000/- drawn on Barket- e-Hyderi Branch of Muslim Commercial Bank, Karachi and delivered it to the applicant which she deposited in her account for clearance but the said cheque was declared ' bounced'. The applicant, thereafter approached the respondent repeatedly for making payment of the outstanding professional fee who kept the applicant on false hopes and promises and instead of making payment or clearing the bounced cheque started to harass the applicant and on 25.9.1999 lodged a complainant at Police Station Gulistan-e-Jauhar against the applicant.
3. The applicant thereafter on 29.9.1999 filed a Summary Suit No. 27/1999 against the respondent in the Court of learned District Judge Karachi East for recovery of the amount. The respondent was served with the summons/notices of the said suit for 21.10.1999 but he did not appear as a result of which the learned Trial Court held the service against the respondent as good and adjourned the matter to 4.11.1999. On 4.11.1999, the respondent appeared before the learned Trial Court and moved an application under Section 148, CPC for extension of time which the leaned Trial Court rejected and the suit was ordered to proceed ex parte against respondent and the applicant was directed to file affidavit-in-ex parte proof along with the relevant record and for that purpose the matter was adjourned to 12.11.1999. The respondent filed an application under Order IX, Rule 7, CPC on 12.11.1999 for setting aside/recalling the order dated 4.11.1999. The respondent further prayed for providing opportunity to be defended. The learned Trial Court allowed the said application vide order dated 23.12.1999 which has bee impugned in this revision application.
4. On 18.10.2001 when the matter was taken-up in the morning, the learned counsel appearing on behalf of respondent Mr. M. Ibrahim Azami was called absent. The matter was kept aside and was again taken-up at 11.00 a.m. But the learned counsel failed to appear. However, I had heard the arguments of Mr. M.M. Aqil Awan, learned counsel appearing on behalf the applicant and the orders were reserved. Following the principle that one should not be condemned unheard, on 22.10.2001 office was directed to fix the matter was for re-hearing on 30.10.2001 after issuing of notice to both the learned counsel. Today i.e. 30.10.2001, when the matter was called Mr. M.M. Aqil was present but none appeared on behalf of the respondent.
5. It has been contended by the learned counsel for the applicant that the learned Trial Court while passing the impugned order has wrongly exercised the jurisdiction vested in it as admittedly respondent was served with the summons of the suit on 20.101.999 and the matter was fixed on 21.10.1999 but the respondent deliberately and intentionally remained absent as a result of which the leaned Trial Court held the service good and adjourned the matter to 4.11.1999. It has, further, been contended by the learned counsel that the leaned Trial Court also rejected the application under Section 148, CPC filed by the respondent on 4.11.1999 and not only the suit was ordered to proceed ex parte but the applicant was also directed to file affidavit-in-ex parte proof and the matter was adjourned to 12.11.1999. It has been contended by the learned counsel that the applicant filed affidavit-in-ex parte proof on 12.11.1999 and on the same day the respondent filed application under Order IX, Rule 7, CPC for recalling the ex parte order and the learned Trial Court without adverting to the fact that service against the respondent was already held ' good', allowed the same and also observed that the respondent was simply served with the summons of the suit through bailiff and not by registered post or by way of publication. The learned counsel has also argued that when the respondent was served with the summons of the suit through bailiff, service of summons through registered A/D or by way of publication was not necessary particularly in view of respondent's on admission, made in the affidavit filed in support of application under Order IX, Rule 7, CPC, clearly stating that he was served with the summons on 20.10.1999 and he engaged counsel and signed the vakalatnama on the very said date It has further been argued that under the law it was the bounden duty of the respondent to file application for permission to defend the suit within 10 days from the date of service of summons in a summary suit, which admittedly the respondent failed to file within the stipulated period of 10 days. On all these scores, learned counsel has contended that the learned Trial Court has exercised the jurisdiction which was not vested in it and has committed an irregularity beyond its jurisdiction.
6. I have given my anxious consideration to the arguments advanced by the learned counsel and perused the impugned order. It appears that the applicant field suit against the respondent under summary chapter of CPC on 29.9.1999 and the notices were issued to the respondent/defendant on 20.10.1999 for procuring his attendance on 21.10.1999 on which date the respondent remained absent and the learned Trial Court held the service upon the respondent ' good' and adjourned the matter to 4.11.1999 on which date the respondent moved an application under Section 148, CPC for extension of time which the learned Trial Court, too, rejected by its order dated 4.11.1999 which reads as follows: "Time cannot be extended as application is not filed within 10 days."
Thereafter, respondent filed an application under Order IX, Rule 7, CPC for recalling the ex parte order which the learned Trial Court without adverting to the fact that service against the respondent was held good', allowed and observed that the respondent was simply served with the summons of the suit through bailiff and not by registered post or by way of publication. Under the law, when the opponent is proved to be served or acquainted with the knowledge that any proceedings against him have been initiated, there is no necessity of getting him served through all modes such registered post A/D or publication. The purpose of other modes of service upon the opponent is to procure his attendance if he is not served through bailiff or appears to avoid service.
The respondent in his on affidavit, filed in support of the application, made under Order IX, Rule 7, CPC, stated that he came to know about the proceedings, in question, on 20.10.1999 and also knew that the case was fixed on the next day i.e. 21.10.1999 and without wasting time he approached his advocate and signed vakalatnama but could not deliver copy of memo. Of plaint to his counsel he handed over to him on 27.10.1999 because of his ailment. From the above averments, it is crystal clear that the respondent was in the knowledge of the above proceedings on 20.10.1999 from which date, under the law, limitation starts and the respondent was required to file his leave to defend application upto 30.10.1999 which he failed to do and filed an application for recalling the ex parte order which too on 12.11.1999 i.e. After the delay of 12 days and no separate application for condonation of delay under Section 5 of the Limitation Act was made. Under the law, each and every day causing delay is to be explained which in this case has not been done.
7. Under the circumstances, I accept this revision application, set aside the impugned order and remand the case back to the learned Trial Court to be decided on merits.
Revision Application No. 25/2000 stands disposed of along with the listed application in the above terms.