1991 PLP 1326 (CLC)

‑‑‑‑ O.V, R.10‑A & S.115 ‑‑‑ Modes of service ‑‑‑ Non‑issuance of notice through registered post ‑‑‑ Effect ‑‑‑ Three modes of service prescribed by provisions of O.V, Civil Procedure Code, 1908, are; personal service; service by affixation and substituted service‑‑‑Question whether notice through registered post was not issued was neither raised before Trial Court nor before Appellate Court ‑‑‑ Such question thus, could not be allowed to be raised for the first time in revisional jurisdiction ‑‑‑ Even if notice by registered post had not been issued no prejudice had been caused, as the finding returned was that petitioner had refused to receive notice' due to which process‑server affixed the same at his residence. Shahzad Shaukat for Petitioner. Nemo for Respondent. Date of hearing: 22nd April, 1991. This civil revision petition under section 115 of the Code of Civil Procedure was directed against the judgment dated 26‑4‑1980, of the learned Additional District Judge, Gujrat, whereby the appeal of the petitioner against the order dated 22‑7‑1978 of the learned Civil Judge, dismissing the application under Order IX, rule 13, C.P.C. was dismissed.

2. The facts briefly stated are that the respondent filed a suit for recovery of d6wery or in the alternative Rs.7,

990. This suit was decreed ex parte on 1‑7‑1976. The petitioner during the execution proceedings filed an application under Order IX, rule 13, C.P.C.~ for setting aside the ex parte decree on the ground that his service was never effected in the original suit and that for the last 2‑1/2 years he had left village Rukan and was residing in village Nasowal, Tehsil Hafizabad. It was averred that the application from the date of knowledge was within time. The application was resisted by the respondent decree‑holder and the learned trial Judge after framing the necessary issues and recording evidence dismissed the application. The appeal filed was also dismissed vide the impugned judgment dated 26‑4‑1980.

3. I have heard the learned counsel in support of the revision petition and have also gone through the record. The process was repeatedly issued to the petitioner and each time it was returned with the report that he had gone out from the village in connection with some work. Eventually when he was found in the village he refused to receive the notice and the process‑server affixed the notice on his residential house. It was also in the evidence that his father lived in the same village. The oral evidence produced by the petitioner to substantiate his assertion that he was residing in village Nasowal, Tehsil Hafizabad, was not believed by both the Courts below. The appreciation of the evidence by both the Courts below and the concurrent finding of fact recorded by them is sound and reasonable. Neither any misreading nor any non‑reading of any material piece of evidence could be pointed out.

4. The learned counsel finally submitted that simultaneously with the issuance of summons, notice should also have been sent through registered post in compliance with rule 10‑A of Order V, C.P.C. Three modes of service have been prescribed by Order V, personal service, service by affixation and substituted service. This question that the notice through registered post was not issued was neither raised before the' trial Court nor before the appellate Court. This question as' such cannot be allowed to be raised for the first time while arguing the revision petition. Even if the notice by registered post had not been issued no prejudice had been caused as the finding returned is that the petitioner had refused to receive the notice due to which the process‑server affixed the notice at the residence of the petitioner.

5. For all these reasons I am satisfied that the impugned judgment does not suffer from any jurisdictional error. The revision petition fails and is dismissed. The cost is not being awarded as the respondent has not chosen to appear to contest the revision petition. Mst. Jalan respondent will, however, be informed of this order dismissing the revision petition. A.A./1‑264/L Revision dismissed.