' This appeal is directed against the order passed by the Additional District Judge, Karachi on 7th November, 1977 in Civil Appeal No, 210 of 1977, where the application for setting aside the ex parte order in appeal was dismissed. It also calls into the question the ex parte judgment in the same appeal, dated 26th October, 1977 where the decree of the lower Court was modified and the appellant -was ordered to return golden ornaments being seven tolas to the respondent in addition to the amount of Rs, 7,000 already decreed in her favour.
' The respondent was the wife of the appellant and she had filed a suit for return of dower articles against the appellant or in the alternative for the payment of their equivalent amount of Rs, 25,000.
The suit was contested and the decree of Rs, 5,000 was awarded to the respondent. The appellant did not appeal against that decree, but the respondent filed an appeal. The appellant could not be served through the bailiff, and therefore, service by post was ordered. The postal notice was not served upon the appellant and the postal notice was returned to the Court by the postal authority with the endorsement of the postman that the addressee has refused to accept the same. This notice has been sent in pursuance of order on 20th of September, 1977 but on 12th October, 1977 when the matter was taken up the registered A.D. Notice had not been received and the matter was posted to 24th October, 1977. On that day the following order was passed : "24th October, 1077.-Service against the respondents held good as notice by registered post A.D.
Have been refused. The case may proceed against the respondents ex parte. Appellant's counsel is present. Hearing 23rd October, 1977,"
2. In these circumstances, the ex parte order in appeal was made. An application for setting aside the ex parte order in appeal was dismissed on the ground that the appellant had not filed an affidavit to the effect that the postal endorsement had been manoeuvred by the other side. The appellant filed an affidavit stating therein that he had come to know of the decree only on 1st November, 1978.
3. I find that service under post can be ordered by the Court under Order VI, rule 21-A of C.P.C. The said rule states that an acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be the prima facie proof of service. In all other cases the Court shall hold such enquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary. However, in the case before me there was no postal acknowledgment signed by the present appellant.
4. From the order-sheet, dated 24th October, 1977 it does not appear that any enquiry was made by the Court in respect of the refusal of summons as reported by the postman, and therefore, I am of the view that there was no justification to treat the summons as duly served and to proceed ex parte against the appellant.
5. The appellant should have been afforded an opportunity to contest the appeal and since that has not been done and a presumption has been drawn against the appellant merely on the basis of endorsement o refusal without holding any enquiry at all into the factum of refusal, therefore, the order in appeal is vitiated and hence the judgment and decree, dated 26th October, 1977 is set aside. Both the counsel are present before me and since the matter is remanded to the Vth.
Additional District Judge for rehearing of the appeal, therefore. In order to expedite the matter, I would direct that the parties should present themselves before the Vth Additional District Judge on 5th April, 1981. Both the counsel have undertaken on behalf of their parties that they would be present on 5th April, 1981 before the learned Additional District Judge.
5. With the above observations the appeal is allowed with no order as to costs, and the case is remanded to Vth Additional District Judge for rehearing of appeal of the appellant.