1. This revision petition arises out of the following facts and circumstances: On 6-2-1970 Muhammad Samin Jan plaintiff sued Messrs, Ferozesons Laboratories Ltd., Amangarh, Nowshera. Sale Manager and Sale Supervisor of the same corporation, for the grant of a decree amounting to Rs. 16,220. Summons were issued in the name of the defendants on the address given in the plaint, but these summons were not returned. Ultimately by the order dated 12-5-1970, substituted service was ordered on the defendants and the case was adjourned to 5-6-1970. On 5- 6-1970 it was found that the defendants were served by substituted service and the Court, therefore, adjourned the case for ex parte evidence on 9-6-1970. The plaintiff's evidence (ex parte) was recorded on 9-6-1970 and by order dated 11-6-1970, the learned Civil Judge, Peshawar granted the plaintiff an ex parte decree for a sum of Rs. 16,220 with costs.
2. On 27-5-1971 defendant No. 1 applied for setting aside the ex parte decree. The plaintiff submitted his replies to the application. Evidence of the parties was recorded for and against the application.
2. The trial Civil Judge by his judgment dated 28-10-1971 set aside the ex parte decree ors payment of costs of Rs. 400 to the plaintiff on ground of substantial justice on merits and to afford an opportunity to the petitioner (J. Ds.), to defend their case.
3. The plaintiff has come upon revision against the ex parte decree passed by the trial Judge.
3. Order IX, rule 13, C. P. C. Provides for setting aside decree ex parte against defendant. Under this provision of law the defendant may apply to the Court by which the decree was passed for an order to set it aside, provided he satisfies the Court that the summons were not duly served on him.
4. By the N. W. F. P. Amendment the following provisions were also added to rule 13: "Provided further that no decree passed ex parte shall be set aside merely on the ground of an irregularity in the service of summons, if the Court is satisfied for reasons to be recorded that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."
5. Under Order IX, rule 13, the defendant has to satisfy the Court that he was not duly served. From the evidence on record and circumstances of the case, it can be reasonably presumed that the defendant had knowledge of the date of hearing, but we have to see whether there has been committed any irregularity or illegality in due service of the defendant. The ex parte proceedings have been ordered by the Court on 5-6-1970 on the ground that the defendant was served by substituted service. Rule 20 of Order V, C. P. C. Relates to substituted service and provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by axing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house if any in which the defendant is known to have last resided or carried on business. The evidence of Bashir Khan Process-Server (R. W. 1) with regard to his note on summons (P. W. 1/3) issued for 5-6-1970 needs reference. In his statement the process-server testified that his report on (P. W. 1/3) is correct. In this report he has stated that according to the order of the Court a copy of the summons was affixed at the gate of the Mill. The order sheetson the file (Case No. 37/1) do not disclose that the Court had ordered the affixing of a copy of the summon in some conspicuous place in the Court--house. Reverting to the testimony of Bashir Khan Process-Server, it is also abundantly established that he did not affix any summons for the defendant in some conspicuous place in the Court-house, but he had affixed a copy of the summons only at the gate of the Mill. In my opinion in the absence of an order for affixing a copy of the summons in some conspicuous place in the Court-house and as in the present case, no such summons were affixed in some conspicuous place of the Court-house, an illegality has been ---committed in due service of the defendant. There appears to be '' no substantial compliance with all the mandatory provi--sions of Order V, rule 20. As such the substituted service effected on the defendant-respondent is bad in law. Reliance is placed on:
(1) Jhabar Mal Chokhani v. Commissioner or Income-tax, Delhi & Rajasthan, New Delhi, AIR 1963 Pb.
6. 486; and
(2) Asiatic Steam Narigafion Co. Ltd. v. Tribhawandas & Co. AIR 1928 Sind 111.
7. The learned counsel for the petitioner also argued that in the present case the defendant being a corporation, service of summons on him was to be carried out under rule 2 of Order XXIX, C. P. C.
8. Rule 2 of Order XXIX, C. P. C. Lays as under:- "2. Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) ------------------------------...
9. The learned counsel contends that due service of summons was served on the administrator of defendant No. 1 and as such the Court should not have ordered substituted service under Order V, rule 20. From the reading of this rule, it is apparent that this rule is subject to any statutory provision relating to service of process.
10. In the Sind Authority, quoted above, it is also held: "The mode of service provided by Order XXIX, rule 2, may be availed of only in cases where there is no mode of service provided by any other statute."
11. The order of setting aside the ex parte decree by the learned trial Civil Judge can, therefore, be upheld on this ground also that the defendant-respondent was not duly served as required by Order IX, rule 13, C. P. C. Consequently I find no merits in the revision petition, and it is dismissed.
12. Parties to bear their own costs.