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Civil Petition for Special Leave to Appeal No. 44‑R of 1978, decided on 11th February, 1979.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27‑3‑1978, passed in C. R. No. 1305/1975).

---O. 1X, r. 7 read with S. 115‑Ex Parte order‑Notice‑Revisional jurisdiction‑High Court's finding that upon facts of case Civil Judge initially erred 'in not having served notice on respondents especially when counsel for respondents clearly endorsed on face of notice of his being engaged only for Court at G and not for Court at R and requesting for service of notice on respondents Held, correct‑Fact of Civil Judge in spite of above said endorvement made by respondent's counsel on notice of date of hearing not caring to serve notice on respondent‑A material irregularity within meaning of such expression in S. 115, Civil Procedure Code (V of 1908 and consequently contention that High Court could not interfere with concurrent findings of two Courts below in exercise of its revisional jurisdiction devoid of force.‑[Revision (civil)‑Notice].

Bashir Ahmad Ansari, Advocate instructed by Ch. Akhtar Ali, Advocate- on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd February, 1979.

.‑Petitioner Sheikh Abdul Majid filed against late Habib Ahmad (now represented by Ali Akbar and others) a suit in the Court of Civil Judge at Gujar Khan for the specific performance of an agreement of sale in respect of the suit shop situate at Gujar Khan. In the written statement filed by him the respondent denied the case of the petitioner. Upon the pleadings of parties, the learned trial Judge framed issues in the suit and adjourned the case to 9‑10‑1974 for recording evidence. However, before 9‑10‑1974, the learned Civil Judge made a reference to the District Judge seeking therein for the transfer of the case from his Court to some other Court. On 26‑9‑1974, the learned District Judge, exercising powers under section 24 of the Code of Civil Procedure, transferred the case to the Court of Civil Judge at Rawalpindi, without having issued to the parties herein any notice. On 28‑9‑1974, on receipt of the case from the learned District Judge, the learned Civil Judge at Rawalpindi issued notices to the Advocates of the parties at Gujar Khan for 16‑11‑1974. On 28‑10‑1974, when notice was taken to the learned Advocate of the respondent, he recorded a note on it saying that his engagement was only for the Court at Gujar Khan and consequently a notice should be served on the respondent. On 16‑11‑1974, finding the respondent and his Advocate absent, the learned Civil Judge passed an ex parte order against him, and adjourned the case to 18‑12‑1974 for the evidence of the petitioner. On 18‑12‑1974, however, respondent appeared in Court and filed an application for the setting aside of the ex parte order. This application was taken up for disposal by the learned Civil Judge on 25‑1‑1975 who dismissed the same under Order IX, rule 6(a), C. P. C. and on the same day decreed the suit of the petitioner. In order to seek the setting aside of the decree in question, the respondent made an application before the learned Civil Judge under Order IX, rule 13, C. P. C. but the same also was dismissed on 10‑12‑1975. Finally he went to the High Court in revision and a learned Single Judge allowed the same with direction that the case would go back to the Court of the learned Civil Judge at Rawalpindi for disposal on merits, after affording to the parties herein an adequate opportunity to produce their respective evidence. It is in this background that the petitioner has come up to this Court seeking leave to appeal against the impugned judgment of the High Court.

Mr. Bashir Ahmad Ansari, the learned Advocate for the petitioner contended before us‑

(1) that the service of notice on the learned counsel of the respondent was good service on the respondent himself and consequently the High Court was in error to record the contrary conclusion ; and

(2) that the High Court had no jurisdiction to set aside the concurrent findings recorded against the respondent by the learned Civil Judge as well as the learned Additional District Judge to the effect that under Order IX, rule 7, C. P. C. he had failed to show that there existed any sufficient cause to enable him to seek the setting aside of the ex parse decree passed against him.

There is no force in either of these contentions. By a well reasoned and detailed order passed ay the learned Judge in the High Court he came to the conclusion that upon the facts of the case the learned Civil Judge had initially erred not to have served the respondent with notice of the proceedings, especially when his learned counsel clearly endorsed on the face of the notice that he had been engaged only for the Court at Gujar Khan and notice should, therefore, be served on the respondent.

The learned counsel, however, argued that in the exercise of its revisional jurisdiction, the High Court could not have interfered with the concurrently findings of the two Courts below. But he is mistaken. The fact that the learned Civil Judge, in spite of the said endorsement made on the face of the notice by the learned counsel of the respondent, did not care to serve the respondent with notice was a material irregularity' within the meaning of that expression as used in section 115, C. P. .C., and consequently, it would be idle to question the jurisdiction of the High Court. It is, therefore, clear to us that the learned Civil Judge seems to have shown rather unusual zeal in disposing of the case before him, without realizing that the case had come to his Court on transfer from the Court of the learned District Judge who also had not heard the parties before passing the transfer order.

In these circumstances, the impugned order of the High Court seems to be proper and calls for no interference by this Court. This petition is, therefore, dismissed.

Petition dismissed,

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