1987 PLP 1536 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑The petitioner filed a civil suit for declaration that he was the owner of the property in dispute and for an injunction restraining the defendant from interfering with his possession. Some evidence was recorded but later on, the suit was dismissed by the learned Civil Judge as not being competent.

2. The petitioner filed a Revision in the High Court which was accepted and the Civil Judge was directed to proceed with the trial. On remand, the learned trial Court (Civil Judge II, Karachi) issued notices to the counsel of the parties for 16‑5‑1978.

3. The bailiff deputed to effect the service reported that Mr. Zaheerurdin, Advocate, the counsel for the petitioner had died and the notice was returned un-served. The bailiff also went to the office of the Advocate for the respondent /defendant but his office was closed. He then went to defendant's house where the ladies informed him that he was not present. As such that notice too was returned un-served on 15‑5‑1978. But strangely enough an entry was made in the order sheet showing that the notices had been returned after having been served. The order, in question, reads as follows:‑‑ 15‑3‑1978‑0/ M return served as per bailiff's report".

4. On the next date for which the case was fixed, the following order was recorded on the order sheet. "16‑5‑1978‑‑Advocate for the defendant is present. Plaintiff is also present. Notice returned and report thereof. Adjourned to 4‑7‑1978."

5. The Advocate for the parties were also shown to be present on 16‑7‑1978. Thereafter, neither the appellant/ plaintiff nor his counsel were shown as having appeared. The Civil Judge, therefore, proceeded to record the judgment ex parte on merits on the basis of evidence recorded prior to the remand.

6. The petitioner then filed an application under Order IX, Rule 9, C.P.C. but that was dismissed. Thereafter, the petitioner filed an appeal before the learned Additional District Judge against the dismissal of his application, which was also dismissed. He then filed a Revision in the High Court which too was dismissed vide the impugned judgment. Hence, the present petition.

7. The learned counsel for the petitioner adverted our attention to the following portion of paragraph 6 of the impugned judgment: "It is no doubt true that summons had not been served either on the applicant or his advocate but the diary of the Court shows that on two dates of hearing the applicant or his advocate was present before the Civil Judge. The report of the bailiff clearly shows that he had gone to the house of the appellant and served the summons on the members of his family who, however, refused, to accept the service. This report further shows that the applicant himself had gone to the advocate. It is not difficult to imagine that the bailiff must have told the inmates of the house that the summons were from the Court of Civil Judge for appearance on the date of hearing."

8. The learned counsel for the petitioner submitted that the above noted observation on the basis of which the petitioner's Revision was dismissed, is based on misreading of the evidence with regard to the bailiff's report. He pointed out that it is on the notice sent to the defendant /respondent that the bailiff has reported that he had gone to his house and that the ladies of the house had told him that he was not present. But the learned Judge misread it. On going through the bailiff's report at page 56 of the paper‑book we find that the contention has substance.

9. There appears to be weight in these contentions. Leave is, therefore, granted. Security Rs.1,

000. Status quo to be maintained during the pendency of this petition. S.Q./M‑135/S Leave granted.