' The respondent was employed as a peon in the office of the Deputy Commissioner, Muzaffargarh, He was dismissed from service by the Deputy Commissioner on 23-11-1966. His dismissal was maintained by the Commissioner, Multan Division, Multan, as well as by the Board of Revenue, Lahore. After exhausting the departmental remedies, the respondent filed a suit challenging his dismissal. An ex parte decree was passed in his favour by the learned trial Court on 7-3-1972. The petitioner moved an application on 25-4-1972, for setting aside the ex parte decree and took up the stand that it became aware of the decree on 22-3-1972, when the respondent reported for duty.
2. The circumstances under which the ex parte decree was passed are obvious from the trial Court's order dated 28-11-1970, which is reproduced below:- {{URDU TEXT}} ' It appears that in support of his suit the respondent tendered in evidence some record, which was summoned from the Office of the Collector.
3. In the proceedings for setting aside the ex parte decree, both the parties, led evidence. The petitioner examined, A. W. 1, Rehmat Elahi and A. W. No, 2, Ghulam Jafar Khan. A. W. 1 stated that the Deputy Commissioner's office came to know of the ex parte decree when the execution application was filed by the respondent whereas the testimony of the other witness was that it was his job to receive the summons and that the Collector was never served. In rebuttal, the respondent produced in evidence the Civil Nazir of the Court with record, and established that summons issued by the Court were assigned to Gohar Ali, Process-Server, and that these were personally served by him on the Collector. On appreciation of the evidence on the record, the learned Civil Judge by his order dated 24-5-1974, rejected the petitioner's contention and dismissed the application for setting aside the ex parte decree. In appeal, the learned Additional District Judge, 'referred to the learned Civil Judge's order dated 28-11-1970, to hold that it was passed after due inquiry. He also I relied on the statement of the respondent's witness, namely, Karim Bakhsh, Civil Nazir, Civil Courts, Muzaffargrah and the extract of the Register maintained by the Civil Nizarat, produced as Exh. R.
1. The fact that during hearing of the respondent's suit, record from the Collector's office was summoned and evidence recorded on the strength thereof, also influenced his decision. Reference was also made by the learned Additional District Judge to the application filed by the petitioner for setting aside the ex parte decree. This application was filed on 25-4-1972, and it was stated therein that the petitioner came to know of the ex parte decree on 22-3-1972. Non-filing of the application for setting aside the ex parte decree immediately after becoming aware of it, was another factor which weighed with the learned Additional District Judge. Thus by his order dated 6-5-1977, he dismissed the petitioner's appeal.
4. The learned Counsel for the petitioner relied on Order V, rule 2, C. P. C. And argued that the summons sent to the Collector by the learned trial Court, not having been accompanied by a copy of the plaint, could not be considered to have been duly served. It was submitted that the provisions of Order V, rule 2, C. P. C. Are mandatory. He also cited Amin Khan v. University of Sind (1) to urge that defendant's knowledge of the institution of the suit without service of summons on him, would not justify an ex parte decree.
5. It is discernible from the trial Court's order dated 7-3-1972, that summons were served on the Collector, but these were not accompanied by a copy of the plaint. The mode of service is to be found in Order V, rule 10, C. P. C., which ordains that service shall be made by delivering or tendering a copy thereof. The material on the file warrants a conclusion that the requirements of rule 10 were amply complied with. This rule has got to be read with Order IX, rule 6, C. P. C. Which empowers the Court to proceed ex parte when the plaintiff appears and the defendant does {{FOOT NOTE}}
(1) PLD 1968 Kar. 899 {{FOOT NOTE}} ' not appear and it is proved that the summons were duly served., Then comes Order IX, rule 13, C. P.
C. Which provides filing of an application for setting aside an ex parte decree, if it is shown that the defendant was not duly served and that there was other sufficient cause preventing him from appearing in the Court when the suit was called on for hearing. The term "duly served" has been used both in Order IX, rule 6 and Order IX, rule 13, C. P. C., and has relevance to the mode of service provided under Order V, rule 10, C. P. C. Which does not speak o annexation of the copy of the plaint with the summons. The affirmative character of language "of Order V, rule 2, C. P. C. Coupled with absence of express provisions as to the consequences flowing from non-compliance therewith, would militate against the inference that this provision is imperative, and seemingly, service effected in disobedience thereof, would not entail its nullification.
6. The question whether the delivery to defendant, of the summons, unaccompanied by a copy of the plaint detracts from the validity of service was directly considered in Raman v. Elahi Bakhsh (1), and a learned Single Judge of this Court on comparison of the language of Order IX, rule 6 and Order IX, rule 13, C. P. C. Read with Order V, rule 2, C. P. C. Observed:- "It will be thus seen that neither the provision relating to the passing of an ex parte decree nor that to setting aside refers to the service on the defendant of a copy of the plaint. The expression 'due service' used in the two rules has reference only to the summons and not to the copy of the plaint.
(It can only mean service of the summons in accordance with those rules in Order V, namely, rules 9 to 30, which appear under the heading 'service of summons'. None of these rules refer to the copy of the plaint). The word `summons', either in these two rules, or in any other relevant provision of the Court, cannot be read as 'summon accompanied by a copy of the plaint."
Agreeing respectfully, with the view taken in this precedent I hold that the non-accompanying of copy of the plaint with the summons was no fatal to the service upon the Collector. In Amin Khan's case the defendant was abroad and was not personally served. The ex parte decree passed against him was defended and from the service of summons on his brother and his knowledge of the institution of the suit, an inference was sough to be drawn, that the defendant was aware of the suit filed against him. This argument was repelled by the Court and it was maintained that even if the defendant had such knowledge, proper service of summons could not be dispensed with. This ruling has no application to the case in hand.
7. The view taken by the learned Courts below does not suffer from any illegality. Submissions made by the learned counsel for the petitioner having failed, this petition is dismissed with costs. {{FOOT NOTE}}
(1) PLD 1958 Lab. 455 {{FOOT NOTE}}