1986 PLP 1738 (MLD)

S.S. Hamid for Respondents. Date of hearing: 25th May, 1986. The suit filed by the plaintiff was decreed exparte after the summons upon the applicants could not be served in ordinary manner. The first report of the bailiff, dated 2‑4‑1978 showed that one Niamat Ghaffar and one Mst. Naushaba had refused to take the summons. However, the bailiff did.not state as to who had pointed out the house of the applicants to him nor did he affix any copy of the summons upon the door of the applicant as required under Order V., Rule 15, C . P.C. nor did he obtain any endorsement from a witness of the locality to that effect. Another summons was similarly returned by the bailiff on 22‑4‑1978 stating that Mat. Naushaba had refused to take the summons. The bailiff had clearly stated in his report that he did not know any one of the defendants. Even in this report he did not state that he had affixed the notice on the, outer door of the house of the defendant. in the presence of any witness. The Court had also issued notice upon the applicant /defendants through registered .A.D. post and both the times the endorsement of the postman was that the defendants had refused to accept the notice. On 22‑4‑1978 the Civil Judge XIV after taking into consideration the two registered A.D. letters, endorsement of the postman and the two reports of the, bailiff ordered that in order to ensure justice, he would have the notice published in local newspaper. The notice was published in Aghaz Newspaper but still the applicant did not go to the Court and on 15‑5‑1978 the suit was decreed ex parte. 2. The application moved on 9‑2‑1982 for setting aside of the ex parte decree stated that none of the members of the Family ever refused to accept any summons or. notice and that no bailiff ever went to serve the summons and that the plaintiff had manoeuvred to obtain beneficial reports in his favour, and that the applicants have for the first time come to khow on 7‑2‑1982 that suit has been decreed ex parte for which they had been kept in the dark. It was further asserted that the defendants had no knowledge at all otherwise they would have come to contest the suit on merits. The same was dismissed as time‑barred and it was held that the Civil Judge had no reason to disbelieve the two endorsements of the postman and two endpraements by the bailiff. 3. That appeal filed by the applicants met with the same fate hence this revision application. 4. Mr. Khalid Habibullah had submitted that the substituted service could not have been ordered because it had not been established that applicants had in any way avoided to accept the service nor it was established that the summons could not be served in the ordinary manner, He further contended that the two endorsements by postman were of no effect because the postman had not been examined and further pointed out that the bailiff had failed to follow the mandatory procedure prescribed under Order V, Rule 17, C.P.C. and, therefore, the basis for an order under Order V, Rule, 20, C.P.C. had not been established. 5. Mr. S.S. Hhmid, on the other hand, submitted that there was no reason to disbelieve the reports of the postman and the report of the bailiff. This submission is correct only in respect of service by registered post and is incorrect otherwise. In order to burden a defendant with the responsibility that h is avoiding service, it is necessary that the bailiff should have fixed the summons upon the outer door on the house of the applicants and obtain an endorsement to that effect from a witness but that has not been done nor the bailiff was examined in this case to prove that h knew any one of the defendants who had refused to accept the summons. In fact, the bailiff had stated that he did not know any of the defendants and, therefore, his submission in the report that the defendants have refused to accept the summons was of no consequence. In respect of service by post Mr. S.S. Hamid brought to m notice sub Rule 2 of Rule 10‑A of Order V where it has been provided that an endorsement by a postal employee that the, defendants refused to take delivery, of the registered communication shall be deemed be the Court issuing the summons to be prima facie proof of service o summons. 6. This being the position, I have no option but to accept they service of summons by post as a valid service in view of the provisions of Rule.10‑A. 7. in fact, I find that the applicants in their affidavit of Naimat Ghaffar filed in support of the application under Order IX, Rule 13, C.P.C. did not even state that no postman had ever come to deliver any letter to them. This is an important omission on the part of the applicant/defendants and since the law makes the endorsement of the postal employee as a prima facie proof of service of summons which had D remained un rebutted before the lower Court, therefore,, I have no option but to come to the conclusion that the applicants had been served with the summons by post under Order V, Rule 10‑A(2), C.P.C. and their failure to come to the Court thereafter, was an attempt sn their part to avoid the process of the Court. And therefore, the two Courts below have done nothing wrong by treating the applicants as having been served with the summons of the suit. 8. Moreover, section 27 of the General Clauses Act describes manner and provide that service shall be deemed to 'be effected by properly ad4pessing, pre‑paying and posting by registered post a letter containing the document etc. and unless contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Therefore according to this provision also it could be presumed that the two registered acknowledgment dues summons were delivered to the defendants. Revision is, therefore, dismissed. M.Y.H. Petition dismissed.