1. Through C.M.A. No.5019 of 2001, the defendants have prayed for setting aside ex parte decree passed on 3-5-2001 against them, on the ground that the summons of the above suit were never served upon them. The defendant gained knowledge of the ex parte decree on 27-6-2001, when Nazir of this Court visited the office of the defendant for the purpose of executing the decree. The application is supported by the affidavit of Dr. Hussain M. Mutlak, wherein the ground for setting aside the decree has been taken in para.15 thereof, by maintaining, therein that summons issued for 18-1-2000 were returned with the bailiff's report that same has been affixed on the outer door of the defendant without providing any reasons or obtaining signature of any witness whatsoever, which against the provisions of rule 17 of Order V, C.P.C. As well as rule 141 Sindh Chief Court (O.S.)
2. Rules.
3. ' The application has been contested by filing counter-affidavit, inter alia, maintaining that the defendant had the full knowledge of the present suit and were duly served despite that they deliberately avoided to appear in Court, no sufficient cause has been shown for the grant of the application. Rejoinder was also filed.
4. ' I have heard Miss Masooda Siraj, learned counsel for the defendant and Mr. Rasheed A. Razvi, learned counsel for the plaintiff.
5. ' The question raised turns on the construction of rule 17 of Order V, it is necessary to examine this rule, which reads as under:-- "(17) Procedure when defendant refuses to accept service, or cannot be found.---Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot 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 then 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."
6. ' The above quoted rule expressly states that the serving officer shall affix a copy of the summons on the outer door. The language of the rule is plain and free from all doubts and even if the rule be construed strictly it does not fetter the discretion of the serving officer to effect service by affixation provided the conditions prescribed in the said rule are satisfied.
7. ' With the assistance of the learned counsel, I have examined the bailiff's report on summons issued, more particularly, on 3-3-1999, 12-10-1999 and 11-1-2000.
8. The admitted position is that the summons were issued not only through bailiff but by registered post as well as courier service. All were returned with endorsement that Dr. Husain M. Mutlak, will receive the summons, who is not available in Karachi. On 15-11-1999, the summons were repeated through normal course, courier service as well as pasting and registered A/D. The summon was effected by pasting on 29-11-1999 as per bailiff's endorsement, dated 11-1-2000, which is on solemn affirmation.
9. ' Learned counsel for the defendant contended that the service by pasting cannot be treated to be "Due Service" as the pasting was not witnessed by any person.
10. ' Learned counsel for the plaintiff contended that it was not mandatory in terms of rule 17 as the term "if any" used in the rule, makes it only obligatory and once the report is on affidavit regarding affixation of summons by pasting it will be "Due Service" and he referred the case of Ayub Khan and another v. Fazal Haq and others (PLD 1976 SC 422), wherein two contentions were raised that the service of notice for affixation made by the process server without the permission of the Court/Rent Controller and rule 17 being penal provision, it should be construed strictly. Both these contentions were repelled.
11. ' Rule 141 of the Sindh Chief Court Rules (0.S) provides the mode of service by affixation of notice or summons in case of refusal or cannot be formed and whenever 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 at least on respectable person of the locality in support.
12. ' It may be noticed that the ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in rules 9 to 17. It is specifically laid down in rule 17 that where the serving officer, after using all due and reasonable diligence cannot find the defendant, and there is no person on whom service can be effected, the serving officer shall affix a copy of the summons on the outer door and return the original with report and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was pasted.
13. I am of the view that when the process server has given the endorsement about affixation of the summons on solemn affirmation and the same has been accepted by the Court as in the present case, mere non-association of person to witness the affixation of summons will not effect the "Due Service", when the service by affixation was held to be good service by order, dated 12-11-2000.
14. Thus service was effected on defendant in ordinary course.
15. ' The defendant's counsel also tried to argue that the service so effected could not be held to be a "due service" and referred the case of Syed Muhammad Anwar v. Sheikh Abdul Haq (1985 SCM R 1228), where no attempt was made for service of summons by ordinary way on the defendant, his agent (if any) or the male member of his family, the service was effected by substituted made under Order V, rule 20. In absence of attempt by ordinary way service by such mode under rule 20 of Order V was not treated as "due service". Therefore, the case referred to above does not support the defendant's case.
16. Mr. Rasheed. A. Razvi also referred the provision of proviso 2 of rule 13 of Order IX, that no decree ex parte shall be set aside merely on the ground of any irregularity in the service of summons.
17. ' In the light of the discussions mentioned above, I am of the view that the service of summons by affixation at the outer door of the office premises by the process server, the report of which is on oath accepted by the Court, cannot be canvassed to be invalid, for the reasons that it lacks attestation by a witness. Therefore, the application has no merits, the same is dismissed, however, with no order as to costs. Consequently, C.M.A. No. 2689 of 2001 in execution application is allowed.
18. These are the reasons of short order announced on 7-2-2002.