MUHAMMAD SAJID MEHMOOD SETHI, J. ---Through instant 'appeal, appellant has assailed order dated 26.10.2015 and judgment and decree dated 04.11.2015, passed by learned Additional District Judge, Daska, whereby petition for leave to appear and defend the suit ("PLA"), filed by appellant, was dismissed and suit of respondent No. 1 was decreed with costs, respectively .
2. Brief facts of the case are that respondent No. 1 instituted a suit under Order XXXVII, C.P.C., for recovery of Rs.
12,600,000/-. Appellant filed PLA, which was dismissed being barred by, time vide order dated 26.10.2015. After recording of ex parte evidence and hearing arguments, the suit was decreed with costs as prayed for vide judgment and decree dated 04.1 1.2015. Hence, instant appeal.
3. Learned counsel for appellant submits that impugned judgment and decree is against law and facts and result of misreading and non-reading of evidence brought on record. He adds that learned trial Court issued notice/summon to appellant on 06.05.2015 through jail authorities but same were not issued as prescribed in Order XXXVII, C.P.C. He further submits that as per report of Process Server , service was affected on 15.05.2015 but on the said date, appellant was not in jail. He argues that even if service is presumed to be affected upon appellant as per report of Process Server , the mandatory requirements under Order V, Rules 17, 18 & 19 have not been complied with by learned trial Court. He maintains that appellant came to know about pendency of the suit when he visited the Courts in some other case. He further submits that appellant tendered Vakalatnama on 12.06.2015 and learned trial Court directed appellant to file PLA within 10-days, however , same was filed on the same day. He further submits that without passing order regarding initiation of ex parte proceedings against appellant, suit was decreed ex parte. He maintains that substantial questions of law and facts were raised in the PLA, which were ought to be addressed on merits. In the end, he, submits that impugned decisions are not sustainable in the eye of law .
4. Conversely , learned counsel for respondent No. 1 defends the impugned order as well as judgment and decree and submits that learned counsel for appellant has failed to point out any illegality or legal infirmity therein, thus, the same are liable to be upheld.
5. Arguments heard. Available record perused.
6. It transpires from impugned order dated 26.10.2015 that learned trial Court knocked out appellant by reckoning mandatory period of 10-days for filing the PLA from the report of Process Server dated 15.05.2015 as PLA was filed on 12.06.2015. In order to better evaluate the factual as well as legal position, the interim order sheet of learned trial Court and reports of the Process Server available on record are to be examined. The suit was filed on 06.05.2015 and summon was issued to appellant for 16.05.2015. On the said date, receipt of registered post was received but that of process was not received back, hence, summons through registered post A.D. was again ordered to be issued for, 26.05.2015. On the said date, the Process Server reported that appellant refused to receive the summons and process was again ordered to be issued for 12.06.2015. On the said date, power-of- attorney as well as PLA was filed by appellant. The report of Process Server dated 15.05.2015 is available on record according to which service was affected upon appellant in jail, but there is no mention of said report in interim order dated 16.05.2015. At the same time, appellant alleges that he was not in jail and has placed on record copies of his bail order dated 05.05.2015 and surety bonds furnished before learned Illaqa Magistrate on 06.05.2015.
7. Another report of the Process Server dated 20.05.2015 is available on record, according to which appellant refused to accept the service. It is not apparent from the proceedings conducted by learned trial Court whether after receipt of said report; subsequent proceedings in terms of Order V, Rules 17 & 19 of CPC have been conducted by the lower Court. Rule 17 of CPC provides that if defendant or his agent refuses to sign the acknowledgment, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and return the original to Court with report in this regard. For ready reference, Rule: 17 of CPC is reproduced hereunder:--- "17. Procedure when defendant refuses to accept service, or cannot be found---Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a. report endors ed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was af fixed."
8. It clearly reflects from the report dated 20.05.2015 that neither copy of summons was affixed nor the report has been prepared and received by the. Court as per the mandate of Rule 17 of CPC.
Needless to say that when service is not effected according to law and requisite procedure has not been adopted, the findings of learned trial Court with regard to limitation are not sustainable. Reference can be made to Mst.
Mussarrat Jabeen and another v. Syed Mussarat Ali and another (2011 CLC 1389 ), Muhammad Inayat v.
Additional District Judge, Phalia and 2 others (2012' MLD 1605) and Zulfiqar Ali and another v. Muhammad Sodagar [PLD 2017 High Court (AJ&K) 71] .
9. Furthermore, Rule 19 of CPC lays down the procedure for the Court where a summons is returned under Rule 17, the Court shall examine the serving officer on oath, or cause him to be so examined by another Court and may make such further inquiry in, the matter as it thinks fit-and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 19 of CPC is reproduced as under;--- "19. Examination of serving officer:-- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be examined by another Court, touching his proceedings, and may make such.further inquiry in the matter as it thinks fit., and shall either declare that the summons has been duly served or order such service as it thinks fit." -Appraisal of proceedings conducted by learned trial Court, as reflected in the interim order sheet, clearly shows that learned trial Court has not complied with the requirements of-Rule 19 of CPC. It is observed that in the matter- of service of summons, the requirements of law have not been fulfilled and same being in departure from the provisions of Order 19, was not a prope r service. Reliance is placed upon Nouroz Khan v. Haji Qadoor (2005 SCMR 1877 ), Zulfiqar v.- Muhammad Jan (2002 CLC 932) and Municipal Committee, Gujrat through Administrator v . Deputy Administrator Evacuee T rust Property , Gujrat and 3 others (2004 MLD 1 170).
10. Learned trial Court was not correct to .hold that the PLA was barred by time. Appellant has raised substantial questions of law and facts in his PLA, which are required to be addressed by learned, trial Court strictly in accordance with law. When the law requires an act to be performed in a particular manner that has to be done in that manner and not otherwise.
11. Resultantly , instant appeal is allowed and impugned order dated 26.10.2015 is declared to be illegal and without lawful authority and is set-aside. When basic order is without lawful authority then superstructure falls on the ground automatically . Consequently , subsequent ex parte judgment and decre e dated 04.11.2015, passed by learned Court below is also set aside. The application for leave to appear and defend the suit shall be deemed to be pending before learned trial Court, which shall be decided cm merits as per law, after hearing learned counsel for the parties, preferably within a period of thirty days from the date of receipt of certified copy of this order . No order as to costs.