1. ' This revision application has been filed challenging the judgment passed in First Civil Appeal No, 74/85 by the First Additional District Judge, Larkana whereby the order passed by the learned First Senior Civil Judge, Larkana in Suit No, 52/1979 and also ex parte judgment and decree in the said suit was set aside and the matter was remanded to the trial Court.
2. ' Briefly the facts relevant for the purpose of this revision application are that the present applicant Syed Mazhar Ali Shah had filed the said civil suit being Suit No, 52/1977 for specific performance of the contract claiming to have purchased the suit property from the present respondent for a valuable consideration of Rs, 22,000 out of which Rs,20,000 are said to have been paid by him while the remaining balance of Rs,2,000 he was prepared to pay. The summons of the suit were issued to the defendant and the learned Senior Civil Judge holding the service good passed the ex parte decree against the present respondent. The respondent had.Filed the appeal in which the learned First Additional District Judge, Larkana set aside the decree on the ground that the 'alleged service of summons on the present respondent was not in accordance with law. It may also be observed that the suit was filed on 29-1-1979 and on 1-2-1979 the summons were issued for the hearing of 17- 2-1979. The bailiff of the Court on 12-2-1979 returned the summons with the following endorsement:-- "On 12th February, 1979 at about 5-00 in the day time, at the Lahori Mohalla, Larkana at the pointing of plaintiff's man, Arbab Ali, I met the defendant. Before Arbab Ali and the witness Allahjurio, I attempted to serve the summons upon the defendant who before the witnesses refused to accept the summons and said that I will not accept. At the showing of the witnesses, I affixed the copy of the summons at the residence of the defendant which residence was inhabited. For witnessing of this fact I asked both the witnesses to sign the original. Out of them one Arbab Ali signed, other witness Allahjurio refused to sign. With the original summons the document of the suit are submitted. I myself do not recognize.
3. ' The above process is unserved."
4. Sd/-Nazir 14-2-1979 Sd/-Bailiff 12-2-1979 ' On 25-2-1979 the said Arbab Ali submitted an affidavit in Court and consequently the ex parte otder was passed and thereafter on 7-7-1979 the ex parte judgment and decree was passed.
5. However, it is admitted that ever since then no execution application has been filed by the present applicant, although admittedly the remaining amount of Rs,2,000 has since been deposited by him in the Court. The present respondent then after a lapse of about 5 years on 28-3-1984 submitted an application before the original Court under section 12(2) C.P.C. Read with Order 9 Rule 13 CPC with the prayer that the said decree be set aside as the same was obtained by fraud and that he was not served with the notice. It was also stated by the present respondent in his affidavit filed in support of the said application that it was only 15 days before the filing of the said application that he acquired the knowledge of the said decree. The original court, however, dismissed the said application for the, reasons that provisions of section 12(2) of Civil Procedure Code were added by Ordinance. X of 1980 and, therefore, would not apply to the decree passed before that and also that the application under Order 9 Rule 13 was time-barred by virtue of the provisions of Article 164 of the Limitation Act. The present respondent then filed the above-said appeal which was allowed and the appellate Court remanded the case back to the original Court with the direction that the present respondent, will file the written statement and the suit had to proceed in accordance with law. Being aggrieved from the said judgment, the present applicant has filed this revision application.
6. ' I have heard the learned counsel for the parties. Mr. Farkhand Ali, the learned counsel for the applicant has submitted that the findings of the lower appellate Court are erroneous. He has emphasised that in fact the application moved before the original court by the present respondent was an application under section 12(2) and, therefore, it was not maintainable as the present decree was passed prior to the introduction of said amendment in the Civil Procedure Code. He has submitted that provisions of Order 9 Rule 13 could not, therefore, be invoked by the applicant with this application. However, the learned counsel could not cite any law or any provision on this point. I am afraid I cannot subscribe to the said contention of the learned counsel for the reason that the application in its title very much shows the provisions of Order 9 Rule 13 CPC to have been added to section 12(2) CPC. Not only this but in the supporting affidavit with the said application the present respondent has specifically stated that he was not served with the notice or summons of the suit and that he acquired the knowledge of the decree only 15 days prior to the filing of the said application and, therefore, in substance this application also amounts to an application under Order 9 Rule 13 CPC and I will now proceed to examine the same in the light of above. It may be observed that Order 9 Rule 13 CPC provides that a decree passed ex parte would he set aside provided the defendant shows that either the summons were not duly served on him or that he was prevented by any sufficient cause-from appearing when the suit was called on for hearing.
7. The words "duly served" here would mean the service as required under law. Mr. Farkhand Ali, the learned counsel for the applicant has referred to second proviso to Order 9 Rule 13(1) which provides that no decree passed ex parte shall be set aside merely on the ground of any irregularity in service of summons, if the Court is satisfied for reasons to be recorded that the defendant had the knowledge of date of hearing in sufficient time to appear on that date and answer the claim.
8. The plain reading of the above provision would show that the decree would not be set aside if there was any irregularity in service and also that Court has to record the reasons for its satisfaction that the defendant had the knowledge of the date of hearing whereas in the present case the learned counsel could not point out any such reasons recorded by the Court. Learned counsel for the applicant has placed reliance on the case of Mukhtiar Begum v. Muhammad Hussain PLD 1963 (W.P) Lah. 364 wherein it was held that failure to pass formal order under Order 5 Rule 19 does not amount to material irregularity. In my view this decision of the Lahore High Court would not be applicable to the resent case for the reasons mentioned hereinafter.
9. ' Mr. Ghulam Sarwar Abbasi, the learned counsel for the respondent has submittd that the law required that the notice had also to be sent through registered post A.D. In view of the provisions of Order 5 rule 10-A CPC subsequently added. He further submitted that provisions of Rule 19 of the said Order of the Civil Procedure Code are very material which required that in case the notice is refused by the defendant the Court shall examine the serving officer on oath which has not been- done in this case. The learned counsel has pointed out that the endorsement on the summons shows that it is not statement on oath by the serving officer-bailiff. Not only this but the said endorsement shows that he had attempted the service on the identification and with the help of one Ghulam Nabi, the man of the present applicant, who was plaintiff in the lower court and therefore, his service cannot be relied upon and for the above reasons it is not a due service as required under law. He has placed reliance on case-law in this respect.
10. ' I have considered submissions of the learned counsel. Firstly it may be I observed that Article 164 of the Limitation Act provides that the application for setting aside a decree passed ex parte can be filed within thirty days from the date of decree or where the summons was not duly served, when the applicant has knowledge of the decree. In the present case the present respondent has asserted that he had acquired the knowledge of decree only 15 days prior to his filing of the said application and, therefore, his application would be within time if it is shown that he was not duly served with the summons of the suit.
11. Now reverting to the point involved as to whether the present respondent was duly served with the summons of the suit it would be necessary to refer to the provisions of Order 5 Rule 10-A CPC and Rule 19. Rule 10-A as pointed out above clearly shows that alongwith issue of summons to the defendant another copy of the said summons shall be sent by registered post acknowledgement due unless otherwise ordered by the Court. In the present case no such summons were sent through registered post acknowledgement due nor any order was passed by the Court dispensing with this mandatory provision of law. Secondly the endorsement of the bailiff on the summons to the effect that defendant refused to accept the summons and, therefore, the same were pasted on the door of his residential house is also not on oath as required under Rules 17 and 19' of Order 5 of the Civil Procedure Code. In the case of Muhammad Ibrahim v. Mehmooda 1987 CLC 1994 it was held by Haider Ali Pirzada, J as under:- "The duty of the' Court is to administer justice in accordance with law. The Court ought not to exercise a punitive jurisdiction by declaring the defendant ex parte. Courts would ordinarily be inclined to set aside ex parte decree unless there has been gross negligence on the part of the party because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.
12. ' The Court will set aside the ex parte decree if it finds that the defendant was not duly served.
13. Whether the defendant was duly served or not, the Court must find it on evidence and give opportunity to parties to lead evidence. The word 'duly' in Order IX Rule 13 C.P.C. Is not equivalent to 'personally'. Due service of summons comprises of, apart from tendering a copy of the notice, reading and explaining the contents thereof for the cognizance of a party as to the factum of pending litigation, the Court in which it is pending and the date to which the said litigation is posted. The indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of or refusal to receive the summons. A vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant/petitioner had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular relief/sum. Therefore, if the defendant/petitioner is shown to have no knowledge of the suit or the decree he can be taken to have shown sufficient cause for nonappearance, so as to enable him to invoke Order IX, Rule 13, C.P.C."
14. ' In another case of Major Tajuddin and others v. Muhammad Akhtar and others 1989 CLC 2183 a learned Single Judge of Lahore High Court had also observed that the provisions of Rules providing for service through registered post acknowledgement due were to be complied with and for want of the same the decree passed ex parte was to be set aside. In yet another case of Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6 a learned Single Judge of Quetta Bench had held that defendant was entitled to have ex parte decree set aside against him if summons were not duly served even when he was aware of institution of suit against him. Lastly in the case of Munshi Tamizuddin Howalder and others v. Altafuddin Moral and others PLD 1970 Dacca 483 a learned Single Judge of Dacca High Court had set aside the ex,parte decree for the reason that the serving peon of the Court was not examined by the trial Court under Rule 19 of Order 5 C.P.C.
15. ' The upshot of the above discussion is that the provisions of Order 5 Rule 10-A and Rule 19 C.P.C.
16. Have to be complied with before passing any ex parte decree against the defendant and that any decree passed ex parte against the defendant by the trial Court without complying with the said provisions is liable to be set aside as the service of the summons in that case would not be due service as required under law and therefore, the defendant would be entitled to bring an application under Order 9 Rule 13 C.P.C. Provided he does so within thirty days of his having acquired the knowledge thereof. In the present case the present respondent has asserted in his affidavit that he had no knowledge of the decree passed against him which fact is denied by the present applicant in his counter-affidavit. However, the plea taken by the present respondent with regard to knowledge is a negative proposition while it is for the present applicant to have shown that the present respondent did have the knowledge but nothing has been brought by the present applicant to support his contention. Not only this but the conduct of the present applicant shows that after having obtained decree on 7-7-1979 and having deposited the balance amount of consideration in the Court (Rs,2,000) he remained silent and did not file any execution application, the applicant had deliberately attempted to conceal this fact from the present respondent. In these circumstances, I would hold that the application moved by the present respondent was within time.
17. ' Lastly it may also be observed that the endorsement made by the bailiff on the summons shows that he had taken two witnesses. One is Arbab Ali and other is Allahjurio but in the same endorsement he states that Arbab Ali had signed on the original summons of pasting on the door whereas the other witness had refused to sign. This Arbab Ali is shown to be a man of the present applicant/plaintiff as per the very endorsement of the bailiff and therefore, obviously an interested person. From these facts the possibility of fraud cannot be ruled out specially when Rule 105 of Sindh Civil Court Rules provides as under:-- "105. The serving officer shall serve all processes entrusted to him without the aid of the party at whose instance the process is issued and after due inquiry as to the identity of the person on whom, or the house or property where, the same is to be served."
18. ' This Rule clearly shows that the serving officer has not to serve the process with the aid of the party at whose instance the process is issued, obviously with the intention to prevent any fraudulent service.
19. ' In view of the above discussion I am of the view that the application for setting aside the decree moved by the present respondent is within time and that he had not been duly served and therefore, the ex parte decree passed against him is liable to be set aside. I would, therefore, maintain the orders passed by the lower appellate Court, remanding the suit to the original Court for trial in accordance with law. The present revision application is accordingly dismissed with costs.