' MUHAMMAD NAWAZ ABBASI, J.--- This is a petition for leave to appeal against the judgment passed by a learned Single Judge of Peshawar High Court, Abbottabad, Bench in a civil revision filed by respondent assailing the order dated 7-3-2000 passed by Senior Civil Judge/Alla Ilaqa Qazi, Kohistan at Dasoo.
2. The petitioner filed a suit in the Court of Senior Civil Judge/Alla Ilaqa Qazi, Kohistan at Dasoo, and pending disposal of the suit, a civil revision was filed in the High Court against the interlocutory order in which the file of the case from trial Court was summoned for the purpose of disposal of the revision petition. The trial Court on receipt of the file back from High Court proceeded with the suit and he dismissed the same vide order, dated 14-3-1995 for non-prosecution. However, the application for restoration of the suit filed by the respondent, was allowed and the suit was restored but subsequently, it was decreed, ex parte against the respondent and an application for setting aside of the ex parte decree filed by him was also dismissed by the trial Court vide order, dated 7-3-2000. The above order was further maintained by the District Judge/Zila Qazi, in appeal vide judgment, dated 20-1-2001 but the High Court reversed the judgment of Appellate Court in its revisional jurisdiction.
3. Learned counsel for the petitioner contended that the conclusion of the learned Single Judge of the High Court that the ex parte decree was passed without service of the respondent, was the result of misreading of the statement of process-server, who on oath stated that respondent was served in person. The learned counsel with reference to second proviso to rule 13(1) of Order IX, C.P.C., contended that notwithstanding an irregularity in the service of summons, as observed by the learned Judge in the High Court, an ex parte decree could not be set aside on such a ground.
4. The learned Single Judge in the High Court having examined the matter relating to the service of summons, concluded that service upon the respondent was not effected in accordance with law.
We have considered the contentions raised by the learned counsel for the petitioner, in the light of second proviso to rule 13(1) of Order IX, C.P.C. And Order V, rules 18 and 19, C.P.C. And find that same were without any substance.
5. The second proviso to rule 13(1), Order IX, C.P.C. Provides as under:-- "Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."
' This proviso would only be attracted in a case in which the Court finds that the defendant had knowledge of the date of hearing but if the defendant had no such knowledge, the proviso would not be attracted. We having gone through the report of the process-server and statement made by him before the Court, find that in the matter of service of summons, the requirement of law was not fulfilled and therefore, taking no exception to the conclusion of learned Judge in the High Court, hold that service of summons, in departure to the provisions of Order V, rules 18 and 19, C.P.C., would not be considered proper service. Be that as it may, the question relating to the service of summons is a question of fact and this Court is not supposed to reappraise and reverse the findings of High Court on such a question of fact.
6. For the reasons given above, this petition is dismissed. Leave is refused.