1. ' This is a revision application against the order of the learned Additional District Judge, Hyderabad, who dismissed Miscellaneous Civil Appeal No, 155/76 as well as Revision Application No, 57/76.
2. ' Briefly the facts are that the respondent filed a suit against the petitioner for possession of property involved in the suit. The suit was decreed ex parte on 30th May, 1972. The petitioner filed an application under Order IX, rule 13 on 13th October, 1974. Against this order the petitioner filed a Miscellaneous Appeal No, 155/74 as well a Civil Revision Application No, 57/74 on the same day. The Appeal and Revision Applicant were heard together and have been disposed of by the impugned judgment. The main ground pressed by the petitioner for setting aside the ex parte decree was that as the summons was not duly served on the petitioner, the decree passed by the learned trial Court was a nullity and be set aside. The learned trial Court has disposed of the matter by a short order, but in the impugned appellate order full detail of the summons sent from time to time to the petitioner has been stated. I have also examined the record, and it seems that summons were issued to the petitioner for appearance on 2nd December, 1972 through the Senior Civil Judge, Lyallpur, as well as by registered post A/D. On 2nd December, 1971 as process had not returned the matter was adjourned to 10th December, 1971 for return of process. On 10th December, 1971 the summons sent through Civil Judge, Lyallpur was received unserved with the remark that no one with the name and parentage of defendant No, 1 resided on the given address. The trial Court ordered to issue fresh summons for 25th January, 1972. The summons for 25th January, 1972 (Exh. 6) seems to have been issued to both the defendants by registered post A/D. There is nothing on record to suggest nor it has been pointed out by the respondents that the summons for 25th January, 1972 was also issued for service through the Civil Judge, Lyallpur. On 25th January, 1972 as the summons issued to applicant had been not returned the case was fixed for 15th February, 1972.
3. On that date as the process had not returned back the Court ordered to issue fresh summons to applicant for 3rd March, 1972 IV registered post A/D. This process was returned with the endorsement of the postal authority that the applicant has gone for Haj. The learned trial Court ordered to repeat the process by registered post A/D and hearing was fixed on 19th April, 1972.
4. Therefore, it seems that on 13th March, 1972 the respondents 1 to 6 made an application under Order V, rule 20, C.P.C. Which was granted by the learned trial Court, on the same day. The order is on the application itself and is reproduced as follows :- "Heard Mr. Shafiuddin and seen endorsement on process to defendant No, 1 returned unserved. The defendant No, 1 is not being served in ordinary manner. Let him be served through publication in Daily Mashriq, Lahore, as well as through registered post A/D. Cost."
5. ' In pursuance with this order, the summons was published in the newspaper. The summons sent by registered 'post A/D on 25th March, 1972 for appearance on 17th April, 1972 was again returned with a note that the petitioner has refused to accept the letter. This note was dated 29th March, 1972. Therefore, at the time when the order for substituted service was passed, only one attempt was made to serve the summons on the petitioner, as provided by Order V, rules 9 and 10-A, C.P.C.
6. These summonses were returned unserved. Thereafter the summonses wear only issued by registered post. The question for consideration is, whether there was sufficient ground to grant an application under Order V, rule 20, C.P.C. For substituted service. Order V, rule 20 provide that if the Court is satisfied that there is reason to believe that the defendant is keeping himself out of the, way of service, or the summons cannot b served in the ordinary manner, then it can be served by affixing a cop thereof on some conspicuous place in the Court, and also on the conspicuous part of the house of defendant, where he last resided or in such other manner as the Court thinks fit. Before granting prayer for substituted service, the Court has to be satisfied that the defendant is avoiding service and he cannot be served in the normal manner. In this particular case, there is hardly any material on record to show that before 13th March, 1972 the learned trial Court could have come to the conclusion that the applicant was avoiding the service. The materials on record were the endorsement made b the bailiff that no one with the name of the applicant was residing on the given address and secondly the endorsement of the postal authority that the applicant had gone for Haj. These two statements though contradictor were not sufficient to conclude that the applicant was avoiding service the normal course. I am, therefore, of the view that the order passed by the learned trial Court to serve the applicant by publication was not in accordance with law and therefore, the publication made in the newspaper cannot be termed as proper service on the applicant.
7. ' The next question for consideration is whether the summons for 19th April, 1972 which was sent by registered post, and is stated to have been refused by the applicant could amount to be a proper service. Under Order V, rule 10-A (ii) it is provided that "any endorsement made by the postal employee that the defendant refused to take the delivery of the same shall be deemed by the Court issuing the summons to be prima fade proof of service of summons." However, before drawing such a presumption it has to be examined whether the provisions of Order V, rule 10-A have properly been complied with. The provision of Order V, rule 10-A was added by amendment in the year 1972 and additional convenient mode for service was provided through registered post acknowledgment due. However, the' legislature has taken care to protect against irregularities which may b committed while serving through post. For the reason it has been provided that the mode of service by registered post shall be adopted simultaneous) with mode provided by Order V, rule 9, C.P.C. Therefore, while sending the summons by registered post the Court is bound to simultaneous! Issue the summons in the normal course, in terms of Order V, rule 9 which provides that summons shall be sent through bailiff or if the defendant is residing beyond the jurisdiction of the Civil Judge the summons may be sent to the Civil Judge for the purpose of service on the defendant. From the record it is clear that the learned trial Court has not adopted the procedure of service of summons as provided in Order V, rules 9 and 10-A. Therefore, the refusal to accept summons as stated by the postal authority cannot lead to the presumption that service of summons was effected on the C applicant. If a statute provides performance of an act in a particular manner then it has to be complied with and deviation of noncompliance is likely to render such act as invalid Maxwell on Interpretation of Statutes (Eleventh Ed.) at page 364 observed as follows :- "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is, therefore, probable that such was the intention of the Legislature."
8. ' Reference can also be made to Salem; Sons Ltd. v. Second Sind Labour Court.
9. ' By providing service of summons by registered post ackowledgment due and attaching a presumption of proper service to the endorsement of the postal employee that the defendant has refused to accept service, the legislature intended to ensure service without delay. Such endorsements by postal employee may lead to ex parte orders thereby placing the defendant at a disadvantage. To avoid this hardship and to ensure proper service the legislature did not permit to serve the summons only by registered post. This is obvious by the opening words of Order V, rule 10-A which enjoins a duty upon the Court that while issuing summons by registered post simultaneously it has to send the summons as provided by Order V, rule 9. This procedure cannot be ignored or bypassed even if the Court decides to issue sunmons by registered post acknowledgment due. It may be clarified that these observations do not apply to the defendants residing out of Pakistan who are to be governed by Order V, rule 25, C. P. C. In these circumstances the applicant was not duly served with the summons and therefore, he was entitled to file an application for setting aside the decree within thirty days from the date of knowledge. Mr. Muhammad Ahmed the learned counsel for the applicant has stated that the applicant came to know about the decree passed by the Court, when a notice dated 6th July, 1974 was served on his son-in-law. The applicant immediately made an application on 13th July, 1974. In these circumstances, the application is within time.
10. ' Mr. Abdul Sattar the learned counsel for the respondent has contended that as the applicant has filed a revision application as well as an appeal, which has been disposed of by the impugned judgment a second revision application is barred. There is no cavil with the proposition that if a Revision Application has been filed before a District Judge no second revision will lie. However, the question for consideration is whether any Revision Application could be filed against the order dismissing the application under Order IX; rule 13, C.P.C. Under the Code a miscellaneous appeal is provided against such order. Remedy by way of revision cannot be invoked for setting aside an order passed under Order IX, rule 13, C.P.C., unless the Court has disposed of the application on consideration of the merits of the decree, or has disposed on erroneous view of the period of limitation. In the order passed by the learned trial Court it has only restricted itself to the merits of the application under Order IX, rule 13, C.P.C. And has not entered into the merits of the decree. The revision application was, therefore, not competent. The District Judge has consolidated the revision application with the miscellaneous appeal but it will not affect the maintainability of the present revision, because the revision filed before the learned District Judge was incompetent and the impugned order should be deemed to have been passed in the miscellaneous appeal.
11. I, therefore, set aside the impugned orders and allow the revision application, and the R & P shall be sent back immediately. The learn trial Court should dispose of the matter expeditiously, within a1