' ABDUL LATIF KHAN, J.- This civil revision has been filed against the judgment and decree dated 11- 12-2013 passed by the learned District Judge/Zila Qazi, Buner, whereby judgment and order dated 19-6-2013, passed by the learned Civil Judge-IV/ Illaqa Qazi, Buner at Daggar was upheld.
2. Arguments heard and record perused.
3. A perusal of the record reveals that Abdur Rahman, respondent filed a suit on 6-6-2011 for recovery of Rs,10,00,000/- along with 18% profit w,e,f, 31-1-2011 till payment by the defendant, against the petitioner/defendant on the basis of agreement dated 2-11-2010, Exh.-PW-1/1 and compromise agreement dated 31-1-2011, Exh.PW-1/2. On 7-6-2011 notice issued against the defendant/petitioner for 21-6-2011, however order sheet No, 4 of the even date reveals that defendant was not present as he was not served properly and personally. Fresh summons were issued for 1-7-2011 but defendant was not present as notices issued were not returned served or un-served and case was adjourned to 12-7-2011 with direction to wait for the service of defendant on the basis of already issued summons. On 12-7-2011 the summons were returned un-served, with the report of Process Server that the defendant has avoided from service and thus notices "Chaspangi" were issued for 26-7- 2011 and not served on date fixed .i,e, 26-7-2011 and thus placed ex parte. Later on ex parte evidence recorded and thereafter on 29-9-2011 notice through publication in newspaper "Daily Aaj" was directed to be issued, which was received by the Court on 15-10-2011 and once again placed ex parte, which were culminated into ex parte decree on 21-10-2011.
4. The report of Process Server reveals that the same was not proper and service of the defendant was not effected personally at any stage of the proceedings. His brother, Who resides in separate house was allegedly served, which cannot be termed as legal/personal service of the defendant.
The defendant shall be served in person or through his agent empowered to receive/accept the service. In case defendant is not found on the given address, nor there is any authorized agent then service may be made through male member of the defendant's family, who is residing with him in one house. It is pertinent to mention here that it is normal practice especially in this part of the area, that service is usually effected from servants/ "Naukars ", who are generally kept in house or for that matter in "Hujra" to perform day to day routine matters, but since they are not family members, therefore, the service effected through the servant would be of no value in the eye of law and only male member, who is residing in one house would be considered as valid service. Once service effected upon defendant then the Court gets jurisdiction to dispose of the matter. The basic object of service on defendant is to enable him to resist the claim, if so desires. This is immaterial that defendant had private knowledge of the pendency of proceedings. Only empowered agent can accept the summons. In safe administration of justice the Process Servers played a pivotal role, as the reports/affidavits sworn by them on the back of notices become a source of make or break for the cases. Therefore, they should take the pain and gather the exact information, inquire about the parties and in case of incomplete service, they are bound to follow the matter more than once in order to obtain proper service of the parties and should not wait for the fixed date of hearing and shall take the matter earlier much before the date fixed, so that proper and personal service of the parties could be obtained within time. Thereafter, shall note-down all these efforts in their reports with utmost care and professional sincerity. It is also the responsibility of Presiding Officers to look into the service effected by the Process Server and if necessary summon the concerned officials in order to inquire about the authenticity and correctness of effected service and should keep vigilance on the concerned officials and their reports on the back of notices and should not be considered as gospel truth in all eventualities rather should be considered strictly in accordance with law. They should also discourage the trend of "takiya service", the local terminology used for those Process Servers, who never visited the actual spot rather write down the reports on the back of notices on their own imaginations. The world has become a global village now, due to fast growing technological devices, therefore, every kind of electronic devices be used in order to obtain effective service of the parties .i,e, Telephone, Telegram, Telex, Fax & U.M.S. Etc as well as beat of drum and publication in press as envisaged by Order V, Rule 20 of C.P.C. In the instant case, the report and sketch prepared by the Process Server reveals that one Nisar, brother of the defendant, has been shown to reside in separate house adjacent to the house of defendant, however, not residing with him and, as such, the provisions of Order V, Rule-15, C.P.0 have been violated. Similarly, substituted service has not been done in compliance to the provisions of Order V, Rule-20 of C.P.0 nor, serving official has been examined regarding the refusal to sign the summons on defendant, has not been found mentioned. Even otherwise "substituted service" cannot be termed as "due service", The process of service through newspaper has also made in disregard of law and at an improper stage in isolation to other proceedings and that too after recording of evidence, which is alien to procedure. The mischief of limitation of 30-days has to be attracted where summons served personal or from knowledge as provided under Article 164 of the Limitation Act. As no personal service effected in the instant matter, nor procedure provided for service under the law has been followed, therefore, ex parte proceedings later on culminated into ex parte decree have not been passed in line with law.
5. Quite apart from this, .Decree for the huge amount of Rs,10,00,000/- has been passed by the Court without discussing the evidence, ex parte recorded, nor assigned any reason in support of ex parte decree and instead passed the same in disregard to procedure, law besides. It is by now established that "lis" pending before a Court of law or even quasi-judicial Tribunal shall be decided with a reasoned judgment/order instead of deciding it in a slipshod manner. The judgment/order must be a speaking one and shall not be the result of misreading or non-reading of the available record. In the instant case two documents have been relied upon by the plaintiff and were posted as exhibits but Trial Court has not uttered a single word in this regard in the judgment/order, what to talk of their proof in accordance with law, which clearly shows that it was the result of non- reading and misreading of evidence, rather cannot be termed it as a judgment/order in the eye of law. Moreover, no opportunity has been afforded to record evidence in support of application, nor Process Server has been examined, in order to satisfy and convince the Court, which is must in such cases. Recording of evidence was mandatory and Courts below have committed illegality, fatal to the case. The conduct of the petitioner too, throughout the proceedings, is not above board. His brother was informed who might have informed him and circumstances reveals that he might have acquired knowledge about the proceedings, though no proof in writing to this effect is available on file.
6. On the other hand, suit filed by the plaintiff/respondent is pending since 2011 and defendant has moved the application for setting aside ex parte decree after considerable delay of more than a year without any plausible explanation for the delay, whereas plaintiff suffered the agony of trial, therefore, in such scenario, the defendant is burdened with a cost of Rs,50,000/- (fifty thousand) to be paid to the plaintiff before the Trial Court on the first date of appearance or on adjourned date when ordered by the Trial Court.
7. For the aforementioned reasons, I allow this petition set aside the impugned judgments on payment of cost of Rs,50,000/- payable by petitioner to the respondent on first date of appearance before Trial Court or next date but not later than that and in case of failure the instant petition shall be decreed as discussed and impugned judgment/order shall remain intact. The Trial Court is directed to treat the matter as target case and shall decide the same on day to day basis within a period of two (2) months positively.