1979 PLP 147 (CLC)

This civil revision is directed against an order, dated the 24th May, 1978, passed by the District Judge, Attock, whereby he dismissed an appeal of the petitioner, Qazi Abdur Rehman. In that appeal, the petitioner had challenged an order, dated the 4th October, 1976, made by a Civil Judge rejecting an application by the petitioner for setting aside an ex parte decree passed against him in a suit for per‑emption brought by the respon dents, Mst. Sahib Jan anal four others.

2. In the aforesaid suit, a summon was issued to the petitioner (defendant) for 3rd November, 1975. The report received thereon was that he had refused to accept its service. The learned Civil Judge, therefore, ordered ex parte proceedings against him and, after recording the evidence of the respondents (plaintiffs), passed an ex parte decree against the petitioner on 4th November, 1975.

3. On 14th February, 1976, the petitioner made an application for setting aside exparte decree contending that he was not duly served in the suit. The application was resisted by the respondents by refuting the aforesaid contention of the petitioner. They also urged that the application was time barred. Thereupon, the learned Civil Judge framed the following issues :‑ (1) Whether application is within time ? O. P. A. (2) Whether there is sufficient cause to set aside ex parte decree ? O. P. A.

4. The learned Civil Judge decided both the issues against the petitioner and dismissed the aforesaid application.

5. Feeling aggrieved by the order of the learned trial Court, the petitioner went in appeal before the learned District Judge but as it did not succeed, he has come up in revision to this Court.

6. Before examining the decision of the two Courts below on the first issue, I will consider their finding on the second issue. That finding is to the effect that the petitioner refused service of the summons issued to him and, therefore, the ex parte proceedings were ordered against him and the ex parte decree passed against him in consequence of these proceedings is unexceptionable. Exh. R. 2 is the copy of the summons issued to the petitioner for 3rd November, 1975. The report made thereon by the process server, Abdul Khaliq, was that he asked the petitioner to receive the summons but the petitioner refused to do so. It was further stated by the process server that as a duplicate copy of the summons was not with him, he did not affix the same as required by the rules. The report of the process‑server was endorsed by Muhammad Aslam, a clerk of the counsel who assisted the respondents (plaintiffs) at the stage of trial.

7. Learned counsel for the petitioner contended that as the summons was not affixed at the place of residence of the petitioner as required b5 rule 17 of Order V of the Code of Civil Procedure, the service effected upon the petitioner was not in order and as such he could rot be proceeded ex parte. He relied on Abdul Samad v. Jan Muhammad (P L D 1952 B J 19) and Siroj Dill v. Mst. Iqbal Begum (P L D 1968 Lah. 639) to support his argument.

8. Learned counsel for the respondents conceded that the provisions of rule 17 are mandatory in nature but maintained that the failure of the process‑server to affix the summons at the residence of the petitioner was just an irregularity in the service of the summons for which, in view of provisions of the Order IX, rule 13 of the Code of Civil Procedure, the ex parte decree could not be set aside. In this connection, he relied on the case of Teja Singh v. Jaswant Singh and others (A I R 1935 Lah. 171).

9. In the case of Abdul Samad, the defendant had refused to accept service of the summons whereupon a copy of the summon was thrown before him. This service, according to former High Court of Bahawalpur, was "manifestly defective" because the copy of the notice was not axed at the outer door of the house of the defendant. The case of Siraj Din relates to an application for ejectment of a tenant. In that application, the summons (notice) was issued to the respondent. The process‑server to whom the summons was entrusted could not contact the respondent. He, therefore, affixed a copy of the application (and not of the summons) at the shop (and not the house) of the respondent. It was held by a Division Bench of this Court that the service effected in the above manner was not valid because the summons was not affixed as required by Order V, rule 17, of the Code of Civil Procedure. The above view of the Division Bench was not overruled by the Supreme Court in Ayub Khan and another v. Fazal Haq and others (P L D 1976 S C 422) although in the said case their Lordships of the Supreme Court had not approved of an observation of the Division Bench that provisions relating to service by affixation were penal in nature and were not applicable to proceedings under the West Pakistan Urban Rent Restriction Ordi nance, 1959. In the case of Teja Singh, relied upon by the learned counsel for the petitioner, it was held that where a person refuses to accept the summons when tendered by the process‑server and the proceedings are taken ex parte against him, the fact that the summons has not been affixed on the outer door of his house as required by rule 17 of Order would be at the most an irregularity and would not affect the validity of the service.

10. The case of Tel Singh is distinguishable from the one in hand inasmuch as in the former, besides refusal of the defendant to receive a copy of the summons, there was a report by the postal peon that he had refused to accept the summons issued to him under registered cover; but, in the present case there is no such report of the postal peon. Even if the aforesaid difference in the facts of the two cases had not been there, I would not have been able to adopt the view taken in the case of Teja Singh.

11. As conceded by the learned counsel for the respondent, the provisions of Order V, rule 17 of the Code of Civil Procedure are mandatory. Therefore, unless all the requirements of these provisions are satisfied, the party to whom 'he summons is addressed cannot be deemed to have been duly served under the said rule. For the purpose of effecting a valid service on the defendant in the above manner, his refusal to accept service is as much necessary as the affixing of a copy of the summons at the "outer door, or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain". The fulfilment of only one of the said two requirements is not enough to complete the process of service. The requirement of affixing copy of the summons as aforesaid is by way of safeguard against the passing of an ex parte decree against the defendant on the basis of a false report by the process‑server that he had refused to accept service. If the process‑server makes an incorrect report regarding refusal of service but affixes a copy of summons as required by rule 17, the defendant can take notice of the direction of the Court as embodied in the summons by having a look at the summons affixed at his place of residence or the place of business and can; by appear ing before the Court on the appointed day, avoid ex parse proceedings as also the ex parte decree. But, if the requirement relating to the affixing of the copy of summons is not insisted upon the process‑server will play hell with the party sought to be served, as done in the present case. What the process server actually did in this case was that he did not even care to go to the petitioner's ordinary place of residence or the place of business and "secured" his refusal on the Court premises, and got his report in his behalf attested by the clerk of the opposite counsel. Obviously such a service offends against the letter and spirit of Order V, rule 17 of the Code Civil Procedure. 1, therefore, with respect, express my inability to share the view taken in the case of Teja Singh and following the ratio decidendi of the cases of Abdus Samad and Siraj Din hold that since in the instant case, process‑server did not affix a copy of the summons as required by Order V, rule 17 of the Code of Civil Procedure, the petitioner was not duly served for the date on which he was proceeded ex pate. Thus, there was sufficient cause for setting aside the ex parte decree which is the outcome of the ex parte proceedings ordered against him. In this view of the matter, I reverse the finding of the lower Courts on the second issue.

12. The first issue is of limitation. Learned counsel for the respondent, pointed out that although the ex parte decree was passed against the petitioner on 4th of November, 1975 yet the application for setting aside that decree was made by him on 14th February, 1976, that is after more than three months. According to Article 164 of the First Schedule to the Limitation Act, 1908 such an application can be made within 30 days of the date of the decree or where the summons has not been duly served within 30 days of the knowledge of the decree. In this case, the applica tion for setting aside the ex parte decree was made after 3 months of the date of the decree. Thus, if the period of limitation is computed from that date, the application would be hopelessly time barred. However, since it has been held above that the petitioner was not duly served, his application would have been within time if he had been able to show that he made it within 30 days of his knowledge of the decree. In his application, dated the 14th February, 1976, for setting aside the ex parte decree, it was stated by the petitioner that he came to know of the decree two days earlier when he learnt that the respondent had obtained (necessary) copies with a view to taking out execution proceedings. This however, he did not say when he entered the witness‑box as A. W.

1. At that stage of the proceedings he simply stated that :‑ This statement shows that it was on the filing of the execution application that he came to know about the suit (and not the decree). He made no mention of the date when he learnt about the decree. It is assumed that while talking about the suit he had in mind the decree, there will be found a contradiction ‑in his statement as recorded in his application and the one made before the Court as a witness. In the application, he said, that he learnt about the decree when the respondents obtained requisite copies for filing execution which, obviously, means that he came to know about the decree before the making of the execution application; but in his statement as a witness he deposed that he came to know of the suit (decree) on the filing of the execution application. Further, neither in the application nor in his statement before the Court he mentioned the precise date of the making of the execution application by the respondent and also did not place or, record any document to enable the Court to look up for the said date. The onus prove that his application was within time was on the petitioner but, in view of what has gone above, I feel that he has failed to discharge that onus. I, therefore, affirm the concurrent finding of the lower Courts on the first issue.

14. As the petitioner did not make application for setting aside the ex parte decree within the period prescribed by law, his application was liable to be dismissed on the ground of limitation. I am, therefore, unable to interfere in the impugned order. The civil revision is dismissed with costs. Petition dismissed.