P L D 1952 Baghdad﷓ul﷓Jadid 19 (PLP)

ABDUL AZIZ, C. J.‑Abdul Samad petitioner instituted a suit for pre‑emption against Jan Muhammad in the Court of Senior Sub‑Judge, Rahimyar Khan. Summons were issued to Jan Muhammad and were returned with the report that the defendant had refused to accept service and consequently a copy of the summons was thrown before him. This report of the process‑server was accepted as proper service by the trial Court and an ex‑parte decree was passed. An application that the ex‑parte decree be set aside was made on 15th of December, 1949. This application was rejected by the trial Court but in appeal it was accepted by the District Judge. Against the order of the District judge this is a petition for revision before this Court. It is admitted before me that the petition to set aside the ex‑parte decree was within the period of limitation. The only question for my consideration is whether the service was in accordance with law. Order 5, Rule 17 Civil P. C. reads :‑ Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment or where the serving officer after using all due and reasonable diligence can not find the defendant and there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made the serving officer shall affix a copy of the summons on 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 and shall return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It was held in Diwan Chand v. Parbati, 99 P. R. 1918 that where the defendant refuses to sign the acknowledgment the provisions of the present rule must be complied with. The serving officer shall affix a copy of the summons do the outer door of the defendant's house ; otherwise the summons cannot be said to have been duly served. Thus if the defendant refuses to sign the acknowledgement it is not sufficient to throw a copy of the summons to him. The copy must be affixed on the outer door of the house. In the present case what happened was that the process‑server had not complied with the provisions of Order 5, Rule 17 to have affixed a copy of the summons on the outer door of the house in the presence of reliable witnesses. As it was not so done consequently the service was manifestly defective, and the trial Judge should not have proceeded to pass an ex‑parte decree as there was no proper service in the eye of law. The view o f the lower appel late Court in accepting the appeal was correct. The petition for revision is rejected with costs. A. H. Petition rejected.