' The facts giving rise to this civil revision are that the respondent, Mst. Elveena, filed a suit against the petitioner, Sana Ullah Gill, for a declaration to the effect that she and the petitioner were joint owners of certain property having equal share therein. It was also prayed by her that the petitioner be restrained from forcibly dispossessing her from the said property. Along-with the suit, the respondent made an application for grant of temporary injunction to the above effect. The Civil Judge, to whom the suit and the application were entrusted directed, ride his order dated the 29th January, 1976, that summons for settlement of issues shall be issued to the petitioner (defendant) for 17th February, 1976. In the said order, it was also stated that the application for grant of temporary injunction too shall be heard on the said date. On 17th February, 1976, it transpired that the summons issued in the petitioner had not been returned after service. Therefore, fresh summons and notice were ordered to be issued for 3rd March, 1976. The respondent did not, however, deposit process fee and, therefore, no process was issued to the petitioner for 3rd March, 1976, and on the above date it was directed that fresh summons and notice shall be issued for 27th March, 1976. On the last-mentioned date, it was noted by the learned Civil Judge that the petitioner (defendant) had not entered appearance despite service. He was, therefore, proceeded against ex parte and the case was again adjourned to 14th April, 1976 for evidence of the respondent (plaintiff): On 14th April, 1976, the Presiding Officer was on leave and so the case was adjourned to 4th May, 1976. On that date, the respondent produced evidence and on the basis thereof an ex parte decree was passed in her favour. Thereafter, on 21st February, 1977, the petitioner made an application for setting aside the ex parte decree but the said application was dismissed. He then filed an appeal against the order of the learned trial Court but it had met the same fate. Hence this revision petition.
2. Learned counsel for the petitioner contended that according to Order V, rules 1 and 5 of the Code of the Civil Procedure, hereinafter referred to as the Code, the learned trial Court ought to have issued to the petitioner (defendant) a summons for settlement of issues in form No, 2 given in Appendix B of the First Schedule of the Code but since no summons was issued or served on the petitioner for 27th March, 1976, the learned Civil Judge had erred in ordering ex parte proceedings against him under clause (a) of sub-rule (1) of rule 6 of Order IX of the Code and then passing an ex parte decree also in favour of the respondent and against the petitioner. He pointed out that it was only a notice of application for grant of temporary injunction which was issued to the petitioner for the said date. The argument/ proceeds that since the order directing ex parte proceedings against the petitioner was illegal, the ex parte decree, which is the outcome of those proceedings, could not be sustained.
3. It was not denied by the learned counsel for the respondent that a summons together with a notice was ordered to be issued to the petitioner for 27th March, 1976. He, however, argued that the notice sent to him for the above date was, in fact, a summons because it made a mention of the suit brought by the respondent. According to him it was not necessary to issue a summons in each case in Form No, 2 given in Appendix B of the First Schedule of the Code. In this connection, he referred to the provisions of Order V, rule 20 of the Code whereunder summonses are issued by means of proclamation in the newspapers in a form different from the one given in Appendix B. His plea was that it was, at worst, a case of irregularity in the service of summons which did not warrant the setting aside of the ex parte decree. For this proposition, he relied on the proviso to rule 13 of Order IX of the Code and two cases reported as Sheikh Abdul Haque v. Syed Muhammad Anwar (1) and Zafarul Haq v. Waris Iqbal and another (2).
4. In reply to the argument addressed by the learned counsel for the respondent, it was reiterated by the learned counsel for the petitioner that the summons in the suit was required to be issued in Form No, 2 set out in Appendix B of the First Schedule to the Code and since the notice sent to the.
Petitioner for 27th March, 1976 was not in that form, it was a notice in the application for grant of the temporary injunction and not a summons in the suit. It was also pleaded by him that if anything was required to be done in a prescribed manner, it must be done in that manner. In this connection, he invited my attention to Col. Bashir Hussain and 10 others v. Land Acquisition Collector Lahore Improvement Trust Lahore and others (3).
5. Admittedly, no summons was issued to the petitioner for 27th March, 1976 when ex parte proceedings were ordered against him. The only process sent to him for the said date is a notice which reads as follows:- {{URDU TEXT}} ' Mr. Owais Shahid, Civil Judge.{{URDU TEXT}} ' Sanaullah Gill {{URDU TEXT}} Elvina {{URDU TEXT}} ' Sana Ullah Gill, Assistant Officer of the O. S. D. Accounts Branch, ower WAPDA, Lahore. {{URDU TEXT}}
(1) PLD 1979 Lah. 332 (2) PLD 1979 Lah. 793
(3) PLD 1970 Lah. 321 {{URDU TEXT}} ' The form of the summons for settlement of issue appears as Form No, 2 in Appendix B to the First Schedule of the Code. It makes the following reading:- ' SUMMONS FOR SETTLEMENT OF ISSUE (0. V, rr. 1, 5) (Title)
(Name, description and place of residence)
' To ' WHEREAS has instituted a suit against you for you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such 'questions, on the day of 19 , at O'clock in the noon, to answer the claim; ' and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
' Take notice that in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence. Given under my hand and the Seal of the Court, this day of 19.
Notice.-1. Should you apprehend your witnesses will not attend of their own accord ; you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call on the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money. Into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property or both."
' According to Order LXVIII, rule 3, read with rules I and 5 0 Order V of the Code, summons in the suit brought by the respondent was required to be issued to the respondent in the said form. It is true that whit serving a defendant by means of a proclamation in the newspaper the pro clamation does not appear in the aforesaid form but it does give indication to the effect that the proclamation is being issued in substitute of the summons. This is evident from the following proclamat which was produced -by the learned counsel for the respondent himself {{URDU TEXT}} ' The word "summons" is there in the above proclamation which was published in the daily Nawa-i- Waqt, Lahore, dated the 20th May, 1980. As against this, the heading of the process, involved in the present case clearly shows that it is a notice and not a'summons. In the body of the process also it is described as notice and not as summons. Besides, it required the petitioner to file {{URDU TEXT}} (reply to the application) on 27th March, 1976 instead of calling upon him to present {{URDU TEXT}} (written statement) or to appear, on the said date for settlement of issues. Further, as explained earlier, for 17th March, 1976, a summons together with a notice was ordered to be issued and since it was the notice only which was issued it will have to be treated as a notice and not a summons.
Therefore, there is no escape from the conclusion that the notice copied earlier was a notice in the application for grant of temporary injunction and not a summons in the suit. As indicated above, it is not the case of the respondent that in addition to the said notice, a summons was also issued for the relevant date. I, therefore, agree with the learned counsel for the petitioner that no summons was issued to the petitioner for 27th March, 1976.
6. As for the cases of Sheikh Abdul Haque and Zafarul Haq cited by the learned counsel for the respondent, in the case of Sheikh Abdul Huque service of the summons on the defendant had been effected under Order V, rule 20 of the Code, by having the usual proclamation published in a newspaper. It was, therefore, ruled by my learned brother Aftab Hussain, J. That even if there was any irregularity in the service of the summons on the defendant since he had knowledge of the date of hearing, the irregularity could be overlooked on the basis of the proviso to rule 13, Order IX of the Code which reads as follows:- "Provided further that no decree passed exparte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reasons 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."
' In the present case however, there was no summons issued to the petitioner for the relevant date, in the ordinary manner or by means of a proclamation. Thus, it is not a case of irregularity in the service of the summons but that of the non-issuance of a summons. It is, therefore, distinguishable from the case of Sheikh Abdul Haq. As regards the case of Zafarul Haq, it was a civil revision. The petitioner there was arrayed as one of the respondents in an ejectment application. The other respondents were his brothers and sister. A reply to the application had been filed On behalf of the respondents, including the petitioner, without the same having been signed by him and the view taken by my learned brother Muhammad Afzal Lone, J. Was that the absence of his signatures from the reply were of no consequence. In the case in hand, no signed or unsigned written statement was filed on behalf of the petitioner and he was proceeded against ex parte for having not appeared on the stipulated date. No such proceedings were, however, ordered against the petitioner in the cited case. The case of Zafarul Haq too is, therefore, distinguishable on facts. As a result, the two authorities relied upon by the learned counsel for the respondent are of no avail to him.
7. What emerges from the above discussion is that the ex parte proceedings were ordered against the petitioner due to his non-appearance before learned Civil Judge on 27th March, 1976 although no summons was issued to him for the said date. The order of the learned Civil Judge in this behalf, B therefore, suffers, from' an illegality and is liable to be set aside. Since the ex parte decree passed by him was based on the ex parte proceedings, the decree too is not sustainable. I, therefore, accept this revision petition, set aside the order, dated the 27th March, 1976, of the learned trial Court whereby the petitioner was proceeded against ex parte as also the ex parte decree, dated 4th May, 1976, passed by that Court in favour of the respondent and against the petitioner, and remand the case with the direction that it shall re-hear the case and decide it afresh in accordance with law. The parties are, however, left to bear their own costs.