MUHAMMAD MUNIR KHAN, J.-On 5.5.1987 Abdul Aziz respondent filed a suit for the recovery of Rs.
21,000/- on the basis of pronote against Allah Bakhsh appellant in the Court of learned District Judge, Bhakkar. The trial Court issued summons to the defendant/appellant in Form 4 appendix 'B' for 15.6.1987. The summons were served on him on 12.5.1987. He failed to appear and apply for leave to defend the suit within 10 days of the service of the summons. On 16.6.1987, he submitted application for leave to defend, which was declined and the suit was decreed on 25.6.1987 against him.
2. Learned counsel for the appellant submitted that since copy of the summons was not delivered to the defendant/appellant, therefore, the summons were not properly served, learned counsel for the respondent has supported the judgment and decree of the trial Court. He maintained that from the report of the Process Server it is very much clear that the summons were actually served on the respondent on 12.5.1987.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant, the relevant provision of law may be reproduced advantageously:- Rule 10. Order V. C.P.C.
"Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such Officer as he appoints in his behalf, and sealed with the seal of the Court".
The process server has no where stated in his report that copy of the summons was delivered to the defendant. He was examined by the trial Court. He stated: {{ Urdu text miss }} He further stated: - {{ Urdu text miss }} In view of the statement made by the Process Server, it can safely be said that the defendant/appellant was not properly served. That being the position, there was no justification for the trial Court to reject the application for leave to defend the suit, as barred by time and decree the suit on account of the default of the defendant/appellant to i.e application for leave to defend the suit within 10 days of service of summons.
Pursuant to the above discussion, the appeal is allowed. The judgment and decree of the trial Court is set-aside and the case is sent back to the trial Court for fresh decision in accordance with law.
The parties will bear their own costs.