Dalip K. Kapur, J.
(1) This is an application to set aside the ex parte decision arrived at by me in R. S. A. 155-D/65. The respondent was unrepresented at the time of the hearing of the appeal on 11th October, 1971. I noted even in the judgment at that time, that defendant has not been served in spite of many efforts by the postal authorities.
(2) The respondent applied for setting aside the ex parte decision of the appeal and for a rehearing of the same by an application, C.M.I 102/ 72. Although the application has been moved very late, it slates that the respondent only heard about the ex parte proceedings on 29th July, 1972 when the successful appellants sought to execute the decree. It is contended by the successful appellants in their reply, that the respondents were aware of the proceedings in October, 1971. No date or time has been mentioned in the reply nor is the manner or method of conveying the decision of this court to the respondent mentioned in the affidavit. I consider the reply to be too vague and accept the respondent's pleading and affidavit that he came to hear of the decision of the appeal on 29th July, 1972. Consequently, the application is within time.
(3) The only ground urged in support of the application under Order 41 Rule 21, is that the respondent was not represented in these proceedings by an Advocate and thereforee an actual date notice had to be served on him. In fact, an actual date notice was sent to the respondent but was returned to the court on the ground that the respondent could not be found, or to use the exact language on the registered cover: 'Going again and again but not met'. After this report the registered letter was returned to the court with the remark 'addressee was not available'. In fact the addressee was not available because the postman did not meet him.
(4) It is urged in reply to the contention of the respondent-applicant by the successful appellants, that the sending of the registered letter is sufficient compliance with Rule 8, Chapter 3-A, Volume 5 of the High Court Rules and Orders. That rule requires that if a party is appearing in a case without being represented by a counsel a registered postcard (A.D.) will be sent to him intimating the actual date of hearing. At the end of this rule the following words appear:-
'THE posting of such postcard shall be dee med to be sufficient intuition to the party of the date fixed in the case.'
(5) It is urged by learned counsel for the appellants that even though the registered letter addressed to the respondent came back on the ground that he was not available this must be deemed to be sufficient intimation of the date fixed in the case. This argument might have some force if the registered letter had been refused by the respondent. But in fact it has not been served on him at all because the postman could not meet him. So, the presumption of service cannot be raised at all in this case.
(6) One submission made by the respondent applicant's counsel is worthy of note in this respect. It is pointed out that the rule requires that a registered 'post-card' should be sent in case a party is not represented by a counsel. He submits that the mention of 'post-card' is not accidental in the rule. If a postcard is sent, and it is registered, then even if it is not delivered to the party concerned, and is refused, or is otherwise not served because he was not available as in this case, a person related to the person concerned or living in his house-hold may be in a position to note the contents of the registered postcard and it will equally be possible for the postman to tell the relatives or other persons in the household of the party concerned, that his case has been fixed for a particular date. The very object of the postcard is stated to have been lost in the present case, because an enclosed registered envelope was sent to the respondent the contents of which could possibly be examined by either the postman or any other person he might have met, there is a great deal of substance in this contention. It is used to be the practice of the court to send a registered 'post-card' and it is a bit surprising that an enclosed letter was sent in this particular case with the unfortunate result that the respondent had not idea of the date of hearing.
(7) It is, however, contended by the learned counsel for the appellants that the conditions of Order 41 Rule 21 are not satisfied in this case. It is submitted that the notice referred to in this rule is the notice specified in Order 41 Rule 12 of the Code, and the 'sufficient cause' which is mentioned in this rule does not include the non-service of the registered postcard. I do not think this submission is correct. I shall hotly state my reasons.
(8) In Order 41 Rule 17(2) it is provided that if the appellant appears and the respondent does not appear the appeal shall be heard exporter Now a respondent can only appear on a given date if he has some intimation that that particular date is the date of hearing. The practice and procedure of this Court, as adopted from the Lahore High Court, is that there is a running list. As far as cases in which counsel are engaged are concerned, the learned counsel are themselves able to represent the party concerned on the date fixed because they have the running cause lists and weekly and daily cause lists of the court available which intimate the date of hearing to them. As far as parties who are not represented by the counsel are concerned, the date has to be intimated to such party by some means, and if it is not intimated the party concerned cannot possibly appear in court.
(9) There are two ways in which the date of hearing can be fixed. The date can be fixed at the initial or preliminary hearing of the appeal, when an order under Order 41 Rule 11 is passed admitting the appeal. In such a case the appellate court can fix a date of hearing under Order 41 Rule 12, and if this is done this date has to be intimated to the respondent who is thus required to appear on that date and if he does not appear then the proceedings may be taken ex parte against him. This is also the procedure followed in civil suits. However the practice in this Court in appeals has been that the initial date is fixed by the Deputy Registrar or by the court office, as a 'Farzi' or tentative, date. If the party has engaged a lawyer there is no further need to intimate the actual date of hearing to the party concerned. If, however, no counsel is engaged, then the actual date of hearing has to be conveyed to the party concerned, otherwise there will be non-compliance with Rules 12, 14, 15, and 17 of Order 41 of the Code. This means that the non-service of the actual date notice really amounts to non-service of a notice intimating the date of hearing of the appeal to the respondent. It is not sufficient, in my view, for the respondent to be informed that an appeal has been filed against him. He has. also to be informed of the date on which the appeal has to be heard and also informed that if he is not present on that day he may be penalised by an ex parte decision being passed against him. If the precise date is net intimated to him he cannot be pensalised. If the actual date notice had been sent in the prescribed form by a postcard duly addressed to the respondent it would have been an intimation of the date of actual hearing even if the post had not been received by the respondent and had only been received or seen by the members. of his household or some other person connected with him. In the present case, there is no material at all to show that the respondent ever knew of the date of hearing. It cannot thereforee be denied that the respondent had at least sufficient cause for not appearing on the date fixed for the hearing. It is contended by the counsel for the appellant that the words used in Order 41 Rule 20 read as follows:-
'IF he satisfies the Court that notice was not served or that he was prevented by sufficient cause to appear when the appeal was fixed for hearing.'
(10) According to the counsel for the appellant these words referred only to the initial notice served under Order 41 Rules 12 and 14 and not any later notice. Of course, if the actual date had been fixed in the initial notice and the case had been fixed on that date and the matter adjourned, this argument would be irrefutable. Unfortunately, the initial notice in this case fixed 30th August, 1965, as the date of hearing; it was served on the respondent who did not engage a counsel. The case was not at all fixed before court on that date but was placed before the Court on 23rd September, 1971. There is an office order on the record which runs as follows:-
'TO be heard on 30th August, 1965 by a single bench and issue notice....'
(11) For some reasons the case was never set down for hearing on 30th August, 1965 but was fixed on 23rd Septemper,1971. Obviously a person who has been served with a notice to appear on 30th August, 1965 cannot possibly appear on 11th October, 1971, when the appeal was actually heard unless he is informed of this fact. He cannot be expected to enquire from the court periodically for over a period of six years as to when his case has to be heard. It, thereforee, seems to me that this rule which deals with 'sufficient cause' for non-appearance, certainly applies to this case and thereforee the ex parte decision in the the appeal has to be set aside and the appeal has to be set down for re-hearing.
(12) It is submitted by the learned counsel for the appellants that the setting aside of the ex parte judgment should be on terms, I do not think that terms can be imposed in the circumstances of this case. As the answering respondent had been successful in the lower appellate court I cannot order that the respondent should deposit some amount towards the decretal amount as a condition for setting aside the ex parte judgment. As far as costs in these proceedings are concerned; as I cannot attribute any blame on the respondent I order the re-hearing of the appeal without imposing any condition. As the appeal is an old one, I order it to be heard on 1st December, 1972.