P L D 1958 (W (PLP)

AKHLAQUE HUSSAIN, J.‑This is an appeal against an order of the Senior Civil Judge, Multan, dated the 3rd of December 1956, rejecting an application of the appellants for setting aside an ex parte decree against them. In the suit filed by respondents, Ilahi Bakhsh and Khuda Bakhsh, summonses were issued to the appellants for the 11th of August 1954. The process‑server reported that the appellants refused the summonses, and the Court on that date ordered substi tuted service under Order V, rule 20, Civil P. C. for the 3rd of November 1954. The appellants again did not turn up on the 3rd of November with the result that an ex-parte decree was passed against them on the 27th of November 1954, An applica tion under Order IX, rule 13 Civil P. C. was made by the appellants on the 15th of December 1954, but, curiously enough, it took the Court full two years to dispose it of. It was contended by the appellants' learned counsel that, as required by rule 2 of Order 5 of the Code of Civil Procedure, a copy of the plaint was not affixed along with the summons at the time of effecting substituted service. He relied upon the ruling in Pesu Mal Harbhagwan Das v. Bishan Das Mewa Ram (A I R 1927 Lah. 376), decided by a learned Single Judge of the former Lahore High Court, in which it was held that where the summons was affixed to defendant's door, but it was not accompanied by a copy of the plaint, the affixation of such summons is not a sufficient compliance with the law. With the greatest respect to the learned Judge who decided the case, I am unable to agree with the propo sition laid down by him. Order V, rule 1 says: "When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified". It is true that the second rule of the Order requires that "Every summons shall be accompanied by a copy of the plaint", but neither that rule nor any other provision in the Code of Civil Procedure exonerates a defendant, to whom a summons has been issued under rule 1, from appearance, or justifies him in disobeying the summons if the summons is not accompanied by a copy of the plaint. By Order IX, rule 6, a Court is given the power to proceed ex parte if the defendant does not appear and it is proved that the summons was duly served. Similarly, under rule 13 of that Order, the Court is required to set aside an ex parte decree if, inter alia the defendant "satisfies the Court that the summons was not duly served". It will be thus seen that neither the provision relating to the passing of an ex parte decree nor that to setting it aside refers to the service on the defendant of al copy of the plaint. The expression "due service" used in the two rules has reference only to the summons and not to the copy of the plaint. (It can only mean service of the summons in accordance with those rules in Order V, namely, rules 9 to 30.I which appear under the heading "service of summons". None of these rules refer to the copy, of the plaint.) The word "summons", either in these two rules or in any other relevant provision of the Code, cannot be read as "summons accompanied by a copy of the plaint." A perusal of Orders V to IX of the Code of Civil Procedure leaves little room for doubt that a defendant is required to appear in Court in obedience to a "summons issued by it and that rule 2 of Order V is a distinct provision which requires the service upon a defendant of the copy of the plaint as well. Non‑compliance with the provision of rule 2 of Order 5 has nothing to do with the consequences which flow from non‑appearance in spite of service of the summons. Its only consequence can be that if objection is taken by the defendant that he was not served with a copy of the plaint a Court cannot proceed with the case until the defendant has been supplied a copy of the plaint and had had sufficient time to prepare his written statement. Even if it be assumed that the expression "due service of summons" includes the service of a copy of the plaint, the contention of the appellant's learned counsel that there was not due service cannot be accepted. Learned counsel was unable to show from the record that a copy of the plaint was not affixed along with the summons. He only said that it has not been proved that the copy of the plaint was also affixed. The short answer to that is that Order IX rule 13 lays the onus upon the defendant asking for the setting aside of an ex parte decree to satisfy the Court that the summons was not duly served. The second contention urged on behalf of the appellants, however, must be accepted. It was argued that admittedly the process‑server, while effecting substituted service, did not affix a copy of the summons "upon some conspicuous part of the house" of the defendant as required by rule 20 of Order V of the Code of Civil Procedure. This has admittedly not been done. The process‑server's report only recites that the summons was affixed on a conspicuous place (nazargah‑i‑am). There is nothing on the record to show whether that conspicuous place was a conspicuous part of the house of the defendant. Due service of summons is a matter of such vital importance that the Courts, before declaring the service to be sufficient, must be satisfied that all the requirements of the law have been strictly complied with. This is all the more necessary in a case where the service is not personal but substituted. In the absence of proof that the provisions of Order 5 rule 20 have been complied with in this case, the substituted service upon the appellants must be held to be insufficient. The ruling in Teja Singh v. Jaswant Singh (A I R 1935 Lahore 171) relied on by the respondents' learned counsel is inapplicable to the facts of this case. There it was held that where a person refuses to accept the summons when tendered by the process‑server the fact that the summons has not been affixed on the outer door of his house would be at the most an irregularity. These observations were made with reference to Order V, rule 17; and would be inapplicable to a case under Order V, rule

20. Moreover, there is no independent and reliable evidence to prove that the appellants refused to accept service. The appeal is allowed with costs throughout. The decree is set aside and the case remanded to the learned trial Court for disposal according to law. The parties are directed to appear in the Court below on the 28th of March 1958. A. H. Appeal allowed.