P L D 1963 (W (PLP)

Muhammad Hussain defendant then moved an application under Order IX, rule 13 and section 151, C. P. C., for setting aside the ex parte decree. This case came up for hearing before Qazi Muhammad Dastgir, Civil Judge who accepted the petition and set aside the ex parte order by his order dated 14‑6‑61 against which the present Revision Petition was preferred. The following paragraph of his judgment may well be reproduced:- "The crucial process in this case appears as Exh. R‑

1. Turning to this document I find that the presiding officer who signed this summons did not authorise its service by affixation. Our High Court has prescribed the affidavit which is to accom pany the return of a process under Order V, rule 18, C. P. C. It appears as Form No. 11 in Appendix B to the C. P. C. According to this, affixation can be made only after this has been ordered and the process‑server is required to give reference to, the terms of the order for substituted service. In the present case substituted service had not been ordered. Again in case of substituted service the presiding officer has to record a finding under Order V, rule 19, C. P. C., whether the summons had been duly served. In the present case no such finding had been recorded. In the light of these facts I find that the defendant had not been served in the present case. This itself is a sufficient ground for setting aside the ex parte proceeding." The part of Order V of the Code of Civil Procedure which deals with service of summons begins with rule

9. Rule 10 provides that:- "Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court." Rule 11 deals with service on several defendants, rule 11 provides for service on agent, rule 12 deals with service of summons in a suit relating to any business work against a person who does not reside within the local limits of the jurisdiction of the Court. Rule 14 deals with service on agent in charge in suits for immov able property and rule 15 with service on male member of defendant's family. Rule 16 requires the person served to sign acknowledgment. Rule 17 deals with the procedure when defendant refuses to accept service or cannot be found and is directly applicable to this case. It runs as under: "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment . . . . . the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides . . . and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy. The circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." This resume of the relevant provisions of the Code which regulate the service of summons clearly shows that the law does not require the presiding officer who signs the summons to specifically authorise its service by affixation as seems to be the incorrect impression of the learned Civil Judge. On the other hand affixation of summons on the outer‑door of a dwelling house is one of the modes of service which can be resorted to by the process server on his own authority if the circumstances enumerated in rule 17 exist. I have already reproduced the report of the process‑, server in extenso which shows beyond doubt that such circum stances did exist in the case in point: I would, therefore, hold that the mode of service of summons adopted in this case was in accord with the law on the subject and that the process- server acted within the limits of his authority in affixing the summons as he did. The learned Civil Judge has referred to the affidavit prescribed as Form No. 11 in Appendix B to the C. P. C. It seems to be under the wrong impression that the reference to substituted service in the affidavit relates to service by affixation. A perusal of the Code will show that service by affixation of summons on the outer door of the house is one of the "ordinary" ways of service and is so provided in rule

17. Substituted service is separately provided in rule 20 and is to be resorted to: "Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way." In the present case the defendant refused "to sign the acknowledgment" and the process‑server followed the procedure laid down in rule 17 which is the rule applicable in such circumstances. This was, therefore, not a case of substituted service which has according to rule 20 to be effected in the following manner: "The Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court‑house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit." Not being a case of substituted service no specific order of the, presiding officer was required in the case nor is that part off Form 11 applicable to it which deals with substituted service. The learned Civil Judge has also held that "the presiding officer has to record a finding under Order V, rule 19, C. P. C., whether the summons had been duly served. In the present case no such finding had been recorded. In the light of these facts I find that the defendant had not been served in the present case." I have reproduced the order of the learned Civil Judge passed by him on receipt of the report of the process‑server elsewhere in this judgment and I am of the opinion that a finding that the summons have been duly served is implicit in that order. Moreover in the light of the last line of rule 19 which runs as follows: "and shall either declare that the summons have been duly served or order such service as it thinks fit" the learned Civil Judge bad to pass an order requiring such service as he thought fit if be was of the opinion that the summons bad not been duly served. The learned Civil Judge did admittedly not order any such service and on the other hand ordered ex parte proceedings against the defendant. Even if it were to be assumed for the sake of argument that such an order cannot be spelt out from the order of the Court dated 6‑9‑1960, the omission was not such as could make the order bad in law and if any authority be needed for this pro position it would not be far to find for this Court held in Tehal Singh and others v. Chainchal Singh (A I R 1934 Lah. 985). "The report of the process serving officer is supported by an affidavit. It appears that no formal order under Order V, rule 19 was passed but the proceedings show that Tehal Singh was considered to have been duly served. The failure to pass a formal order under Order V, rule 19 is not a material irregularity in this case and does not vitiate the sale." The order dated 6‑9‑1960 and the ex parte decree that was passed on 19‑6‑60 were, therefore, in order and the learned Civil Judge who set it aside by his impugned order erred in law in doing so. In view of this finding I need not go into the issue of limitation. I, therefore, accept the petition and set aside the order dated 14‑6‑

61. The petitioner shall get the costs in both the Courts. K. B. A./A. H. Petition accepted.