P L D 1952 Lahore 552 (PLP)

KAYANI, J.‑An ex parte decree for dissolution of marriage was passed by the Senior Sub‑Judge of Rawalpindi on the 24th June 1949 in favour of Mst, Mahboob Jan against her husband her Afzal. On the 13th January 1950, Sher Afzal made an application under Order IX; rule 13, Civil Procedure Code, for the setting aside of the decree or, the ground that he had not been served with any summons and that only a few days before the date of his application he had come to know of the exist ence of a decree from what Wali Dad, father of Mst. Mahboob Jan, had been giving out to people. On the pleadings of the respondent the following issues were framed :‑ (1) Was the applicant not properly served? (2) Is the application within time? The learned Senior Sub‑Judge found both issues in favour of the applicant and set aside the ex parte decree. Mst. Mahboob Jan has brought this petition in revision on the ground that by deciding the question of limitation wrongly, the lower Court has assumed a jurisdiction which is not vested in it by law. I agree that if the question of limitation has been decided wrongly, the effect of that decision would be that the Court assumes jurisdiction in a case which, according to law, should not be heard by him and that consequently the matter falls within section 115, Civil Procedure Code. Now, since the question of limitation cannot be decided without going into facts, it will be necessary to examine the evidence. Under Article 164 of the Limitation Act, an application for setting aside the ex‑parte decree should be made within thirty days of the date of the decree or, where the summons was not duly served, of the date when the applicant has know ledge of the decree. The applicant says that he was not served at all and if that allegation is substantiated, there is no reason why his statement that his knowledge was derived from what the plaintiff's father gave out to people should not be accepted. The summons was issued in this case on the 11th May 1949, and marked by the Naib Sheriff Muhammad Razzaq (R. W. 4) to a process‑server, Suba Khan. This process‑server was not produced in evidence but an endorsement purporting to be in his handwriting and dated the 20th May 1949, shows that Sher Afzal, the applicant, had concealed himself and could not, therefore, be‑served. The Naib Sheriff then made a note on the 24th May that another effort should be made at service, and marked the summons to Khudadad Khan, process‑server (R. W. 1). This man reported on the 28th May that Sher Afzal had refused to accept service and that one copy of the summons had been affixed on his residential house. This is signed by two witnesses, Wali Dad, father of the plaintiff, and Said Zaman Khan, sarbrah lambardar. Below the report is a statement of the process‑server purporting to be on solemn affirmation. Below still is an "attestation" by the Sub -Divisional Magistrate of Murree. It is not clear what that officer was attesting, and it seems doubtful that he attested any thing at all. It would appear that the statement of the process server was recorded for him by the Nail‑Sheriff who stated in the examination‑in‑chief that he himself had got the statement attested by the Sub‑Divisional Magistrate. In cross‑examina tion, however, he admitted that it was the process‑server him self who had taken the statement to the Sub‑Divisional Magis trate for attestation. Now, as regards the witnesses of the report, Wali Dad being the father of the plaintiff is interested on her behalf while Said Zaman, although a sarbrah lambardar, cannot have very pleasant relations with the defendant by reason of the fact that he has become sarbrah by ousting a relative of the defendant. Further, he appears from the evidence of the process‑server to have met the latter casually in a bazar and accompanied him to the house of the defendant. There is also an important discrepancy in his statement in regard to the manner of affixation. According to the process‑server himself, both the summons and the copy of the plaint were affixed on the door while, according to this witness, the summons was hung from some peg on the door and the copy of the plaint was either thrown there or glued to the door. The Urdu word Phaink or thapak‑in the evidence cannot make any other sense, but it is clear that the word in question is intended to show that the copy of the plain was treated differently from the summons. Further, in view of the discrepancy in the Naib Sheriff's own statement in respect of the statement of the process server having been attested by the Sub‑Divisional' Magistrate, it seems doubtful whether the process‑server actually made a statement on solemn affirmation. It cannot, therefore, be said that the return of the summons was verified by the affidavit of the serving officer, as required by rule 19 of Order V, Civil Procedure Code. What is more remarkable in the summons, however, is the fact that it bears neither the signature of the presiding officer nor the seal of the Court. For this the Naib Sheriff has given no explanation, and the argument, therefore, that a blank form of summons was filled by the Naib Sheriff in conspiracy with the plaintiff's father is not without force. Apart from the fact that this will strengthen the presumption against the genuineness of the summons, it is clear that any service effect ed by such a summons cannot be regarded as service within the contemplation of Order V, rules 1 and 10 of the Code of Civil Procedure. Under sub‑rule (3) of rule 1 "every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court", while under rule 10 "service of the summons shall be made by delivering or tender ing a copy thereof signed by the judge or such officer as he appoints in this behalf, and sealed with the seal of the Court". It follows that service shall not be made if the copy which is tendered does not bear either the signature of the Judge or the seal of the Court. This conclusion should be obvious because it is possible for a blank form of summons to be filled by any person if he can obtain it from a process‑server or any other official of the Court (and this should not be difficult) and present it to a person against whom no suit may have been instituted at all, with the object of putting him to harassment expense and inconvenience. Mr. Yaqub Ali for the petitioner, however, argued that the only effect that the absence of a seal and signature can have is that if the defendant on receipt of such a summons presents himself within thirty days of the ex parte decree and objects that he was not duly served, his objec tion, would, in that case, be accepted. I do not see how this effect can follow and the presiding officer might well dismiss the application by arguing that since the defendant was informed of the date of hearing by a summons even though it was unsigned and unsealed, he ought to have presented himself in Court on the date of hearing and raised an objection that since he was not properly served, he should be served afresh. In my opinion, there was not only no service on the defendant in actual fact but also no due service by reason of the defect in the summons. The petition is dismissed with costs. K. M. A. Petition dismissed.