P L D 1957 (W (PLP)

CONSTANTINE, J.

In Muhammad Hashim Paracha v. Mst. Iqbal c7ehan, First Appeal No. 14 of 1952, my learned brother Wahiduddin, J. and I held that it was an irregularity where a bailiff takes the aid of a plaintiff without an order from the Registrar (O. S.) in serving a summons upon the defendant. This decision ran contrary to the practice of the Registrar who is delegated the power of determining whether processes have been duly served or not. A reference was made in Revision Application No. 138 of 1956 by the Registrar to Muhammad Bakhsh, J., who considered that a Full Bench should be constituted. Rules 139, 140 and 141 of the Original Side Rules read as follows: "

139. Process to be served without identification by party. The serving officer shall serve all processes entrusted to him without the aid of the party at whose instance the process is issued and after due enquiry as to the identity of the person on whom, or the house or property where, the same is to be served: Provided that if it appears to the Registrar (O. S.) or in his absence to the Deputy Registrar that sufficient informa tion cannot be given as to the identity and place of residence of the person on whom process is to be served, or as to the house or property where process is to be served, or if the Registrar (O. S.) or in his absence the Deputy Registrar is satisfied from the affidavit of the serving officer or upon his examination on oath (if necessary) that the person or the house or property or the place of residence of the person aforesaid could not be identified after due diligence and enquiry, he may ask the party concerned to supply an identifier.

140. Endorsement of identifier on the original process.-If the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served.

141. Procedure where defendant refuses to accept service or cannot be found.-Where the person to be served refuses to sign the acknowledgment or cannot be found, the serving officer shall, wherever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb-impression of at least one respectable person of the locality in support of such fact." The expression " The serving officer shall serve all processes ..without the aid of the party" is ambiguous in itself, in so far as the sense may be that such aid is regarded either as a privilege not to be allowed to the party or as a burden not to be imposed upon the party. Does the proviso resolve the ambiguity ? The Registrar may ask such aid if (a) sufficient information cannot be given or if (b) after due diligence and inquiry the serving officer could not identify. Condition (a) would seem at first sight to lean towards the first sense : if aid is a burden, then one would have expected the words "sufficient information is not given" rather than the words "sufficient information cannot be given" for the imposition of a burden is appropriate to failure, negligent or wilful, rather than to inability. But the reason for using the words "cannot be given" may well be that by rule 133 the party is required to give a description with an address and such further particulars as will facilitate service, and, therefore, if, being able, he does not furnish information he will be required to furnish information in accordance with this rule, and therefore rule 139 speaks of inability to furnish sufficient information. Condition (b) leans to the second sense : for the unaided bailiff is required to use due diligence and to satisfy the Registrar that he has used due diligence. Lastly the word " ask " is more akin to a request to do something which the party may refuse as burdensome than a permission to do something which the party wishes to do. The danger that a false return of service may be made is guarded against by rules 140 and

141. The prohibition of aid by the party appears to be a weak safeguard against collusion between the serving officer and the party ; it merely makes it more difficult for the party desiring to have a false return made to contact the bailiff. The Civil Justice Committee had condemned the routine practice then prevailing in Bengal of requiring the aid of the party because it imposed an undue burden on the party. This report was studied by Court in framing rules, and I have no doubt that the Chief Court of Sind was influenced by that report. In accordance with the principle of law expressed in the maxim, quilibet potest renuntiare juri pro se introducto, a party is entitled to waive the right given to him ; it was stated in Vellayan v. The Government of the Province of Madras (A I R 1947 P C 197 : P L D 1947 P C 160): " There appears to their Lordships to be no reason why the notice required to be given under section 80 should not be waived, if the authority concerned thinks fit to waive it. It is for his protection that notice is required if in the particular case he does not require that protection and says so, he can lawfully waive his right." I, therefore, consider that a party is entitled to waive the right namely that the bailiff shall first attempt service unaided. We are indebted not only to the Advocate. General but to Mr. Sharifuddin who appeared as amicus curiae ; they as well as the applicant supported the reference while the opponent did not oppose. My reply to the reference is, therefore, that if a party is ready and willing to give aid to a serving officer without an order of the Registrar he may do so, and the voluntary giving of such aid without such an order does not constitute an irregularity. There will be no costs of this reference. MUHAMMAD BAKHSH, J.

I have given the matter my most anxious consideration and I have reached the conclusion that no irregularity occurs if the party voluntarily assists the serving officer to serve the process. It will be a non compliance with the letter of Rule 139 but not the spirit thereof which is evident from the proviso to Rule

139. In my opinion Rule 139 was not drafted in the present form for the purpose of conferring a privilege on a party. It was drafted for the purpose of putting down the nonchalance of the serving officers. It was drafted in order that the serving officers should put in an effort by themselves to serve the processes entrusted to them and not to insist on a party to assist them at the initial stage. The object of framing the rule is to secure an honest as well as speedy service of the processes If, therefore, a party voluntarily assists the serving officer in serving the process 1 don't think the spirit of Rule 139 is violated. It will be for the Court concerned to verify such service and find out whether it is a bona tide one or otherwise. I am of opinion, therefore, that no irregularity is caused and I agree with my learned brother Sir George Constantine, J. WAHIDUDDIN, J.

This matter came before the Full Bench to consider the correctness of the view expressed by a Division Bench of this Court, consisting of my learned brother Constantine, J., and myself in I. A. 14/1952. That appeal arose out of a judgment on the original side of the Chief Court of Sind, and is only applicable to those cases which are pending on the original side of this Court. The learned Additional Registrar (A. S.), however, took this decision to be applicable in Appellate and Revisional matters also. In Revision Application No. 138/1956, the process-server went to effect service of the notice of the application on the respondent. The respondent was identified to the process server by the applicant's agents. He refused to accept the service, and the bailiff thereupon affixed the notice on the premises of the respondent. The question before the Additional Registrar was whether the service was good or bad, as the process-server took the aid of the party without any previous order from the Registrar, and in view of the decision in the abovementioned appeal, he found it difficult to hold it as good service. The matter was placed before my learned brother. Muhammad Bakhsh, J., and on his suggestion the following question has been referred to the Full Bench for decision: " Whether the interpretation of rules 139 and 140 of the original side rules of the Chief Court of Sind given in Miscellaneous Appeal No. 14/1952 is correct or not." At the outset, I must observe that our decision in Miscel laneous Appeal No. 14/52 does not apply to Appellate and Revisional Civil matters. The rules on the original side are not applicable on the appellate side of this Court. On the appellate side, only the rules of the High Court of Lahore are applicable and in my opinion there should not have been any difficulty in deciding the question of service involved in the abovementioned revision application. As a judge on the Civil Appellate Bench, I have noticed that there is a lot of confusion in the office about the application of the rules. It has been several times brought to their notice that they should not be guided in Appellate matters by the rules of the Chief Court of Sind, and they should only be guided by the rules of the Lahore High Court in that connection. This confusion is still continuing and probably the reason seems to be that the Lahore High Court Rules applicable to the Appellate Side are not available in printed form. I would, therefore, invite the attention of my Lord, the Chief Justice to the immediate necessity of getting the rules printed and made available to this Bench for proper guidance. In my opinion, Order 5, Civil P. C., with the amendments of the Lahore High Court are to be observed for purposes of the service of the process on the Appellate Side of this Court. Under these provisions the process server or the bailiff is not precluded to serve process with the aid of the party or his agent. There should, therefore, have been no difficulty for the learned Additional Registrar to decide whether the service on the respondent was good or bad in the abovementioned revision petition. In fact, the respondent in pursuance of the alleged notice appeared through his counsel in Court before us and accepted it as good service. My answer, therefore, will be that the rules on the Original Side of the Chief Court of Sind are not applicable to Appellate Side work, and the decision in Miscellaneous Appeal No. 14/1952 does not come in the way of the learned Additional Registrar, to decide whether the service in the -circumstances alleged by him is good or bad. It was, therefore, unnecessary-for us to decide whether the view taken in Miscellaneous Appeal No. 14/1952 in respect of rules 139 and 140 was correct or not. My learned brother Sir George Constantine, J., has, however, discussed this contention and I also propose to deal with it. In my opinion, the view taken by us in the above mentioned appeal about the interpretation of rule 139 of the Original Side Rules of the Chief Court of Sind is perfectly correct and sound. Constantine, J., in that connection observed in that appeal as under :- "The appellant relies upon two irregularities committed before the ex-parte hearing. The first is that a baliff, as appears from his endorsement, proceeded to serve the summons upon the defendant/appellant with the aid of the plaintiff's brother as identifier. Rule 139 of the former Chief Court Rules states that the serving officer shall serve all processes entrusted to him without the aid of the party at whose instance the process is issued provided that the Registrar (O. S.) for reasons given in the provision may ask the party concerned to supply an identifier. It is wrong for a bailiff to proceed in the first instance with the assistance of an identifier supplied by the plaintiff ; such a procedure can only be adopted if authorised by the Registrar (O. S.)" It is contended before us that rule 139 is not a mandatory provision of law and that even a mandatory provision when it does not involve any principle of public policy and is demonstrably made for the production of, convenience of, or as a concession to any legal person, it is open to such legal person to waive it. Reliance is placed on Vellayan Chettiar and others v. The Government of the Province of Madras and another (A I R 1947 P C 197 P L D 1947 P C 160). in support of this contention. Syed Sharifuddin, who appeared as amicus curiae, vehemently argued that rule 139 was made for the convenience and protection of the litigants who are interested in the service of the process on the opposite side. It was framed to make it clear to the bailiff that the service of process was primarily his duty and he must perform it without any assistance from the litigants. The litigants were not bound to assist them, unless there was an order by the Registrar as provided in the proviso. He also drew our atten tion to the submission of the learned Additional Registrar that prior to the rules framed by the Chief Court of Sind, as also in the subordinate courts, a very common return of unserved process was that no one came to accompany the bailiff to serve process, and rule 139 was made to eradicate this unfortunate practice. It was also contended that rule 139 was enacted for the benefit of the plaintiff or the defendant, as the case may be, and if the party concerned waived it, and voluntarily took upon themselves this obligation, then there was nothing in law to prevent them from doing so, and it is open to them to waive the right conferred on them under rule 139 to get the service effected without the aid of the party or his agent. Much stress was laid on the recommendation of the Civil Justice Committee Report, and it was suggested that rule 139 was based and influenced by those recommendations. I have given my very best consideration to the contention raised before us. I went through Chapter X of the Civil Justice Committee Report and also examined the language of rule 139, and have come to the conclusion that the contention raised before us is not well founded. The object of service of summons is that the defendant may be informed of the institu tion of the suit in due time before the date fixed for the hearing. It is the duty of the Courts to see that reasonable time is allowed to the defendant to enable him to appear and answer in person or by his agent. It is the duty of the courts to see that the process issued by them are not made the instru ments of injustice and fraud. There should be vigilant superintendence of the service of such process. It has always been therefore a headache to devise a reliable and efficient agency for the service of the process. In fact, the Civil Justice Committee observed :-- "It would be no exaggeration to say that in the interest of efficient administration of civil justice; service of process is as essential as the honesty of the tribunals". Besides delay in the service of process, the process of the Court was also abused by the fraud or negligence of the process server. In this connection the Civil Justice Committee observed :- "We come now to the delays in the service of processes caused by the fraud or negligence of the process server. The process server may return the process unnerved without proceeding to the village at all either through indolence or in collusion with the defendant. He may proceed to the village and in collusion with the defendant fraudulently return the process unserved stating that the defendant is not to be found. Or proceeding to the village in collusion with the plaintiff he may fraudulently serve the process on the wrong person, or lastly having proceeded to the village return the process unserved without making proper enquiries and without attempting service." They therefore suggested efficient supervision by the Nazir and by the Presiding Officer to check this fraud. They further observed that several checks have been devised- in certain Provinces to counteract the more common form of fraud perpetrated by process servers. The most elaborate system was that in use in the Bombay Presidency. The first object to be secured is that the process-server really goes on the spot to serve his process instead of sending a return of non-service from the premises of the Court. It will also be observed that in Bombay the rule is distinctly laid down that no process server charged with the service of a process is entitled to call upon the party interested in the service to point to the person to be served. It is his duty to use his best efforts to effect the service and it is only when he fails in spite of such efforts that the Courts may order the party to render help to him. In Bengal, however, a different system was prevalent. There the invariable practice was that the plaintiff had to supply an identifier to accompany the process server and to find out the defendant. When this was not done, the summons would as a matter of course be unserved with the reason 'absence of identifier. The Civil Justice Committee found this practice lends itself to the most flagrant corruption and the misuse of Court processes. They observed at p. 59 :- "In cases of dishonest litigants this system lends itself to the most flagrant corruption and to the misuse of the Courts' processes. A plaintiff anxious to snatch a decree provides a creature of his own as identifier, and in collusion with the process-server, who for his own sake is not unwilling to avoid a tedious journey, suppresses the service and procures a false return supported by the affidavits of the process server and the identifier. This is more especially the case in suits for money or rent before munsifs where the plaintiff prefers false or exaggerated claims. It rarely occurs in title suits before subordinate judges. As a striking commentary on the value of the identifier system we may refer to the results of a test enquiry into fifty specific cases of reported service made by the District Judge of Dacca in the year 1916. It was found that in nine of these cases the peon had reported service on persons, as living persons, when in fact these persons had long been dead. In seven cases, personal service was shown on persons who were elsewhere at the time of the alleged service. In eight cases, personal service was reported when in fact the peon had not gone to the place at all. In six cases, processes were returned unserved on the ground that no identifier was supplied when in fact identifiers were supplied or were unnecessary". A committee on ministerial services appointed by the Government of Bengal in 1905-1906 described the abuses of this system in the following language :- "There is a strong feeling amongst the judiciary and we are convinced that it is well founded, that these affidavits (of identifiers) gives rise to more fraudulent suppression of service than (any) other system that could be devised. A professional class of identifiers has arisen to whom the bearing of a false affidavit presents no difficulty whatever and in conjunction with lazy and corrupt peons, the whole business of serving and reporting on a process is frequently done in the nearest bazar without ever going near the unfortunate person who is subsequently condemned for non- attendance with little or no hope of redress as he has the oaths of the identifier and the peon against him and has nothing but the vague evidence of himself and his neighbours to prove a negative. It appears to us that the constant use of the form of solemn affirmation by a peon deprives it practically of any force that it may be supposed to possess as a religious sanction." It was conceded before us that the Bengal system was not prevalent either in Karachi or in Sind. Even in the Civil Justice Committee Report, except Bengal, nothing has been said about the practice suggested to be prevalent in Karachi or Sind. There was a Judicial Commissioner's Court in Karachi upto 14th April 1940. I have gone through the rule governing this Court on the original side published in 1908, and revised up to 1931, and have not found any rules on the lines of the Bengal system. On the contrary, they indicate that the parties at whose instance the summons were to be served, shall have no hand in the selection of the bailiffs. Chapter V of the Rules of the Judicial Commissioner of Sind, deals with the procedure to be followed on its original side. Rule 20 of this Chapter reads as under :- "

20. The Nazir shall cause the substance of process sent to him for service within jurisdiction to be endorsed on them in the vernacular unless the parties to be served are reason ably believed to know English. The Nazir shall not permit the parties at whose instance the processes are to be served to exercise any selection whatever among the bailiffs but shall himself distribute the processes for service among the bailiffs. The bailiffs shall on their return endorse affidavits as to the manner of service upon the processes, which shall then be transferred for filing in the record." The rule in Schedule I of the Code of Civil Procedure, 1908 and the various amendments made in them by the Judicial Commissioners Court and the Chief Court of Sind also do not contain any rules on the lines of the Bengal system. On 15th April 1940, the Court of the Judicial Commissioner of Sind, became the Chief Court of Sind. Mr. Tikamdas D. Motwani, an officer of the Provincial Judicial Service, was appointed as Special Officer to make new rules for the Chief Court and the Courts subordinate to it. According to the preface of the Rules of the Chief Court of Sind published in 1945, it will be observed that the Chief Court of Sind like the Bombay, Calcutta and Madras High Courts, possessed both original civil and criminal, and appellate civil and criminal jurisdiction and the practice and procedure of those Courts was taken as a guide for the formulation of new rules for the Chief Court. In fact, as a matter of convenience, the Bombay High Court, Original Side Rules, were adopted for the Chief Court of Sind. Some of the rules of the Chief Court were bodily lifted from the Bombay High Court rules. Rules 139, 140 and 141 were also taken from the Bombay rules. I have already observed that in Bombay the rule is distinctly laid down that no process server charged with the service of a process is entitled to call upon the party interested in the service, to point out the persons to be served. It was the duty of the process server to use his best effort to effect service and it was only when he failed in spite of such efforts, that the Court was to order the party to render help to him. The underlying idea was to safeguard against dishonest litigants and to check the misuse of the Court process as also the resultant corruption. I have dealt with this question at length in order to show that the contention that rule 139 was framed to adopt the recom mendation of the Civil Justice Committee and was a rule for the benefit of the plaintiff, is without any foundation. With all respect, I do not find in rule 139 anything to suggest that it was framed for the benefit of the plaintiff. It is my considered opinion that it was framed with a view to see that the party at whose instance the process is issued, is not able to snatch a decree by providing a creature of his own as identifier and in collusion with the process server suppress the service and procure a false return supplied by the affidavits of the process server and the identifier. With this very object, a separate chapter known as Chapter VI was introduced in the Chief Court Rules and elaborate provisions were made to see that the process of the Court is not misused, and no fraud is committed with the help of the Court officers. There is neither any burden nor privilege to the party interested in the service of the process under rule 139.' This rule was framed on the Bombay system. According to this rule, it is the duty of the bailiff to effect service without the aid of the party after due inquiry as to the identity of the person on whom or the house or property wherein the same is to be served. If the process server is unable to serve the person, then he should approach the Registrar and if the Registrar is satisfied that the person or the house or property or the place of residence of the person could not be found after due diligence, he may ask the party to supply an identifier. The language of this rule clearly shows that the underlying idea was not to allow the party interested to have anything to do, in the first instance, with the service of the process. The Registrar, in asking the party to supply an identifier would be ordering the party to do so. There is no such term known in Courts as requesting a party. The Registrar has been dele gated with the powers of the Court, and, under rule 139, will be acting as a delegate. Even according to the dictionary meaning "ask" in pregnant senses and special uses, means "to need, require, demand and call upon." In the rule under consideration "ask" has been used in this very sense. There is no doubt in my mind that no right was given to the plaintiff or the defendant or any party interested in the service under rule 139 of the Chief Court of Sind, and there fore, the question of waiving any such right does not arise. The principle laid down in Vellayan Chettiar and others v. The Government of the Province of Madras and another is not applicable in this case. As long as the rules of the original side of the Chief Court are applicable to this Court on the original side of the Karachi Bench, they should be strictly observed. Any relaxation in the observation of these rules, is bound to result in further corruption. I, therefore, hold that the decision in Miscellaneous Appeal No. 14 of 1952 on this point is correct, and I see no reason to depart from the view taken in it. My answer, therefore, is that the interpretation of rule 139 in the abovementioned appeal is perfectly sound, and if the process server or the bailiff has failed to observe it, then it will amount to an irregularity. The question whether such irregularity will be of a material character, or of a immaterial nature will depend or the facts of each case. BY THE COURT. The judgment of the Court is therefore that the voluntary giving of aid to a serving Officer without the order of the Registrar does not constitute an irregularity. A. H. Reference answered.