' IBAD-UR-REHMAN LODHI, J.--- Through this civil revision, the petitioner called in question the findings arrived at by learned Additional District Judge, Sahiwal on 23-10-2012, when a petition filed by him for setting aside the ex parte decree passed on 10-4-2012 was dismissed.
2. The facts relevant for the purposes of the present petition are that Shabbir Ahmed respondent filed a suit on 6-2-2012 for recovery under the provisions of Order XXXVII, Civil Procedure Code. The learned trial Court ordered issuance of summons in the prescribed Form and on the report of process server that the defendant/petitioner has duly been served and on the event of his non- appearance on 23-2-2012, he was proceeded against ex parte. After recording statement of the plaintiff/respondent in ex parte evidence, the suit was decreed vide judgment and decree dated 10-4-2012.
3. On 23-6-2012 a petition for setting aside the ex parte decree, as was passed on 10-4-2012, was filed by the present petitioner, which was contested and by means of the impugned order dated 23-10-2012, the same was dismissed.
4. Learned counsel for the petitioner has mainly placed reliance on the provisions of Order V, Rules.
18 and 19, C.P.C. By maintaining that: there was a defect in service upon the defendant in the suit and requirements as are provided in such rules have not been fulfilled, which, according to learned counsel, would vitiate all the subsequent proceedings including passage of ex parte decree. In support of his contentions, learned counsel has placed reliance on the reported cases titled as "Nouroz Khan v. Haji Qadoor" (2005 SCM R 1877), "Mehmuda Sultana v. Naseem Mumtaz and another" (1990 M LD 1028) and an unreported order passed by a learned Bench of this Court on 29- 8-2012 in Civil Revision No,319 of 2011.
5. From the perusal of record, one thing is clear that on the summons issued under Order XXXVII, C.P.C.; the process server has reported that on 19-2-2012 service of the same was effected upon the defendant in the suit and in acknowledgment to such service the defendant/present petitioner put his signatures on the original notice. At the time of service, the defendant receiving the notice was identified by Muhammad Ilyas son of Bagh Ali, a witness, who also has signed such event. The effect of service has duly been supported by an affidavit of the process server available on the original notice returned to the Court.
6. In view of provisions of Order IX- Rule 6(1)(a), C.P.C., if it is proved that the summonses were duly served upon the defendant and at the time when the suit is called on for hearing, only the plaintiff appears and the defendant does not appear and from the summons it is proved that same has been duly served, the Court is competent to proceed ex parte against defaulting defendant.
7. Learned counsel for the petitioner has argued with some vehemence that requirements of Order V, C.P.C. Have not been fulfilled and thus the order directing ex parte proceedings against the defendant and subsequent ex parte decree are not sustainable. In view of Order V, Rule 10, C.P.C., service of summons shall be made by delivering or tendering a copy thereof signed by the judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. Rule 16 of the said Order provides that where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered through an acknowledgement of service endorsed on the original summons.
8. In this case, the requirements for effecting service upon the defendant have duly been fulfilled as noted herein above. Reliance of learned counsel for the petitioner on the provisions of Order V, Rule 19 is misplaced, for, the examination of serving officer is only required summons is returned under Order V, Rule 17, C.P.C. Which deals with the circumstance as to what procedure is to be adopted when defendant refuses to accept service, or cannot be found. Refusal to accept service or non- finding of the defendant is not the case. The summons issued under Order V, Rule 10, C.P.C. In this case was duly served upon the defendant in view of Rule XVI thereof. As such, procedure to be adopted in case of refusal on the part of the defendant to accept service was not required to be adopted.
9. Examining from another angle, although in application moved for setting aside ex-parte decree ho provision of law is quoted as to under which the same is being moved, but such like application in ordinary course is to be treated as an application moved under Order IX, Rule 13, C.P.C. This was a case filed under the provisions of Order XXXVII, C.P.C. And by virtue of Rule 4 of that Order, a power to the Court granting a decree has been provided to set aside the same "under special circumstances". The term "special circumstances" as used in Rule 4 of Order XXXVII, C.P.C. Is stricter than the terms "good cause" and "sufficient cause" as used in Order IX, Rule 13, C.P.C. And a person seeking setting aside of an ex parte decree passed under Order XXXVII, C.P.C. Has to satisfy the Court with regard to the existence of special circumstances for setting aside the decree passed by Court under the said provisions of law. In the case in hand, the petitioner has failed to demonstrate as to what were those special circumstances which necessitate setting aside of ex parte decree passed on 23-10-2012 after proceeding ex parte against the defendant who opted not to appear after accepting service by way of summons duly issued and served upon such defendant and therefore, the only plea that service was not effected was neither believable nor the alleged non- fulfilment of the procedural requirement would vitiate the subsequent proceedings.
10. In case of "Nouroz Khan v. Haji Qadoor" (2005 SCM R 1877), service upon the defendant in the suit was not effected and on account of such non-service provisions of Order V, Rule 19, C.P.C. Were taken into consideration by the Hon'ble Supreme Court of Pakistan. As such, in the circumstances of the present case, where service was duly effected by fulfilling all requirements of Order V, C.P.C., the judgment as referred is not applicable. Similar is the case in "Mehmuda Sultana v. Naseem Mumtaz and another" (1990 M LD 1028). The unreported view of a learned Bench of this Court in Civil Revision No,319 of 2011 as noted above would also not be of any help for the present petitioner as in said case out of a number of defendants only one was served and service upon one defendant was considered as valid and due. Again reliance on the provisions of Order V, Rules 18 and 19, C.P.C.
Would not be available in the case in hand where report on the summons issued was not to the effect that service could not have been effected upon the defendant. The provisions of Order V, Rules 18 and 19, C.P.C. Would only come into play if the summonses are -returned under Order V, Rule 17, C.P.C. And not otherwise.
11. In view of the provisions of Order XLIII, Rule 1(d), C.P.C., the proceedings culminated under the provisions of Order IX, Rule 13, C.P.C. Are appealable. Any final verdict as have been given under Order XXXVII, Rule 4, C.P.C. Primarily is to be considered an order passed within the purview of Order IX, Rule 13., C.P.C. And thus, the revisional jurisdiction against such order would not be available.
12. For what has been discussed above, I see no merit in this revision petition, which, otherwise, is not competent in view of availability of a remedy of appeal as indicated above, thus the same is dismissed.