' The petition is addressed against the order of Sub-Judge, Kotli, passed on December 23, 1989, whereby ex parte decree passed against Muhammad Sadiq, respondent, on August 9, 1988, was set aside and the suit was restored on the file of the trial Court.
2. Shakoor Hussain brought a suit for recovery of Rs,16,000 against Muhammad Sadiq, in the Court of Sub-Judge, Kotli, on June 1, 1986. Process was issued to defendant for his appearance in the Court on July 15, 1986. Kala Khan, Process-server made a report on July 10, to the effect that Muhammad Sadiq, defendant refused to accept service. The report was placed on the file of the Court. On July 15, no order was passed on the report as by the time the Presiding Officer was transferred. The successor-in-office proceeded ex parte against the defendant. Ex parte evidence was recorded on July 31, August 4 and August 9 and finally ex parte decree was passed in favour of Shakoor Hussain. Against Muhammad Sadiq, respondent, on August 9, 1988.
3. An application for setting aside the ex parte decree was moved on September 1, 1986. It was explained in the application that decree was passed ex parte without effecting service on the defendant-applicant and the Process-server made a false report against the defendant- judgment-debtor by connivance with the plaintiff-decree-holder and by deception. The application was contested. Muhammad Sadiq, respondent appeared himself as witness and produced Muhammad Rafique. In rebuttal, Shakoor Hussain petitioner appeared himself and produced Kala Khan, Process-server, Muhammad Rashid Reader of the Court of learned Sub- Judge. The learned Sub-Judge arrived at the conclusion that the service of the summons purported to be effected on the defendant was defective and cause of his absence was sufficiently explained. Thus, the application was allowed and ex parte decree was set aside.
4. Sardar Rehmatullah Khan, the learned counsel for the petitioner argued that the impugned order was wrong and illegal as it was violative of provisions of Order 9, rule 13, C.P.C. It was emphasised that the respondent failed to satisfy the Court that he was not duly served or that he was prevented by sufficient cause from appearing in the Court when the suit was called on for hearing.
Thus, the order of the trial Court was unsustainable. Mr.Zarait Khan, the learned counsel for the respondent controverted the aforesaid objection and argued that the service of summons purported to be effected on the respondent, was defective as it was violative of provisions of Order 5, Rule 17, C.P.C. The learned counsel argued that the report of the Process-server was false and fictitious. Moreover, Muhammad Rashid, Reader of the Court, gave false evidence as he was not even a witness of the service of the summons.
Order 9, Rule 13, C.P.C. Relates to setting aside decree ex parte against defendant. It empowers the Court to set aside ex parte decree provided that the defendant satisfied the Court that the summons was not duly served on him or that he was prevented by any sufficient cause from appearing in the Court when the suit was called on for hearing. In the present case, the explanation furnished by the defendant-respondent for his non-appearance in the Court, is that he was not duly served.
5. Due service of summons as contemplated under law, is conceived by the provisions of Order V of the Code. Apart from the service by post, Rule 12 provides that wherever it is practicable service shall be made on the defendant in person, unless he had empowered an agent to accept the service. Rule 15 laid down that where the defendant could not be found or was absent from his residence, and there was no agent empowered to accept service, the service was to be made on any adult male member of the family of the defendant, who resided with him. Rule 17 postulated expressly the system of effecting service on defendant. It provided that where the defendant or his agent or other person, namely adult male member of his family refused to sign the acknowledgement or where the serving officer after using all due and reasonable diligence, was unable to find the defendant or his agent or male member of his family, the serving officer was enjoined to affix copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resided or carried on business or personally worked for gain.
On doing so, the serving officer was required to return the original to the Court which issued the summons, with a report endorsed thereon showing circumstances under which the service was effected, carrying name and address of the person by whom the house of the defendant was identified and in whose presence copy of the summons was affixed thereupon. The aforesaid provisions were mandatory in nature. The object of making mandatory provisions for making due service on defendant, was to ensure that the defendant was not condemned unheard or no decree was passed against him, without his knowledge and adequate defence likely to be advanced by him. It was a celebrated scheme of law which provided fair and just administration of justice.
7. In the present case, none of the aforesaid conditions was complied with by Kala Khan, Process- server. The report made by him was absolutely violative of provisions of Rule 17 of the Code. In identical situation where the mandatory conditions laid down under Rule 17 of the Code were not fulfilled, the service of summons was considered illegal, as such ineffective. In Abdul Rehman's case 1979 CLC 147, the Process-server instead of effecting service of the summons on the defendant, in the light of the provisions of Rule 17, secured his refusal in Court premises and got his report attested by the clerk of the Counsel of the opposite party.The Court excluded the aforesaid service of summons from consideration, as defective and bad in law. In the present case, it is unfortunate that Kala Khan, Process-server made a false report and Muhammad Rashid, Reader of the Court who neither wrote the report nor signed it as a witness, volunteered to testify it in support of the aforesaid report of the Process-server. For it is admitted that Kala Khan was an illiterate person and report was written by some unknown person and not by Muhammad Rashid, Reader of the Court. The trial Court, thus, was justified to set aside ex parte decree rested on false report.
8. The other important aspect of the proposition is that the day when the ex parte order was passed, was not the date of hearing of the suit. The defendant was summoned for appearing in the Court on July 15. On that date, the Presiding Officer was transferred and the case was adjourned to July 22. Thus, on account of transfer of the Presiding Officer, no ex parte proceedings were ordered on July 15. On July 22, when the ex parte proceedings were ordered, the defendant was not required to appear before the Court. It was enjoined upon the learned Presiding Officer to issue fresh summons for appearance of the defendant. This was not done. Thus, the ex parte proceedings ordered on July 22, were, again, violative of procedure. Therefore, the whole proceedings which followed the aforesaid order of July 22, were illegal and without lawful jurisdiction.
9. There is no defect in the order of the trial Court. The petition finds no favour. It is, therefore, dismissed with costs.