PLJ 2002
Present: qazi ehsanullah qureshi, J. ZULFIQAR-Petitioner
versus
MUHAMMAD JAN-Respondent C.R. No. 134 of 2001, decided on 21.1.2002.
Civil Procedure Code, 1908 (V of 1908)--
—-O.V, Rr. 16, 18 & 19-O.LX, R. 13 & Ss. 12(2) & 115-Summons were not served in accordance with the mode prescribed in C.P.C.~Effect—No endorsement on the back of the summons indicated as to why defendant was not served at his home address as given in the plaint and why he was served in the B.C. Office and who had indemnified him and in whose presence he was served-Trial Court before passing ex-parte decree and before ordering ex-parte proceedings had not examined process server on oath which was mandatory legal requirement-Appellate Court while disposing of appeal did not examine as to whether trial Court while
proceeding ex-parte had acted in accordance with relevant provisions of law—Appellate Court treated ex-parte application to be one under S. 12(2)
C.P.C. and ignored the fact that such application could be. filed within three years and not within thirty day-Courts below failed to understand
that while computing period of limitation, intervening period of summer vacations has to be excluded-Judgments and decrees of Courts below
were set aside and case was remanded to trial Court for decision on merits by giving them opportunity to contest the case. [P. 154] A
Mr. Liaqat All Khan Marwat, Advocate for Petitioner. Mr. Abdul Aziz Khan Dalokhel, Advocate for Respondent. Date of hearing: 21.2.2002.
judgment
The petitioner has moved this Court through the instant revision petition for setting the ex-parte judgments and decrees for Rs. 40,000/- dated 29.4.2000 and dismissal order dated 25.4.2001 on application for setting aside the ex-parte decree passed hy the learned Senior Civil Judge Lakki, and also dismissal of appeal vide order dated 6.11.2001 of the learned District Judge Lakki.
2. The controversy in the matter is that initially respondent had filed a suit for recovery of Rs. 40,000/- in connection with the sale
transaction of landed property, which according to the plaintiff/respondent despite payment of the entire sale consideration, the petitioner had failed to
. transfer the suit land in his name. The learned trial Court after issuance of notice and its receipt as served proceeded against ex-parte, recorded ex-parte evidence and decreed the suit as prayed for vide judgment and decree dated 29.4.2000 in favour of the respondent against the petitioner. Subsequently, when the petitioner came to know during the execution proceedings about the ex-parte decree, he moved the Court for its setting aside but the said application was dismissed on 25.4.2001. Aggrieved therefrom, the petitioner filed an appeal before the learned District Judge Lakki which too was dismissed on 6.11.2001. Hence this revision.
3. The learned counsel for the petitioner, inter alia, contended that the petitioner was not properly served during the trial proceedings in the
manner and mode prescribed under the CPC. There is an endorsement on back of the summon by the process-Server that service on the petitioner was
affected at D.C. Office. It is un-understandable and no such reasons are given on the summon that why the petitioner has not been served on his home
address. It also does npt contain that how the petitioner was identified at D.C. office. The procedure under Rule 18 CPC regarding service has not
been adopted by the learned -trial Court who has proceeded in the matter in great hurry and has dealt the matter summarily. He next argued that
execution petition was filed by the respondent/plaintiff after obtaining ex parts decree on 12.7.2000 which was fixed for hearing on 31.7.2000. It is
presumed that the petitioner in the execution proceedings might have been served between 12/7/2000 and 31/7/2000. Be that as it may, he is served on
12.7.2000 ------ in the circumstances of the case, even than thirty days expires on 12.8.2000 which was month of August and Courts were closed due to Summer Vacations till 31.8.2000. Under Section 4 of the Limitation Act, it is provided that when the Courts are closed, the limitation period is to be reckoned w.e. from the opening of the Court and the period of vacations is not to be counted for the purpose of limitation. So, the petitioner promptly filed an application for setting aside the ex-parte decree on 1.9.2000 which is well within time, hence the learned trial Judge mis-construed and misconceived the legal aspect of the matter and had not appreciated the delicacy of the situation.
4. The learned counsel for respondents opposed the arguments of the learned counsel for the petitioner with full force and submitted that the
petitioner was served properly strictly according to law and the learned trial Judge after due reasonable diligence proceeded ex-parte followed by a decree
against the petitioner. The judgments/decrees impugned herein are perfectly in order and the petitioner had failed to point out any jurisdictional error,
illegalities and irregularities if committed by the Courts below, so as to warrant interference by this Court in exercise of its revisional jurisdiction.
5. I have gone through the record with the able assistance of the learned counsel for the parties. Let the petition be thrashed out in view of
the provisions meant for the purpose. Order 5, Rule 16 CPC envisages as under:--
"16. Persons served to sign acknowledgment.-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.""
Order 5, Rule 18 CPC reads as under:
18. Endorsement of time and manner of serw'ce.--The servicing officer shall in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."
Order 5, Rule 19 CPC speaks as below:
Rule 19. Examination of the Serving 0/7Icer.--"Where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit."
6. The bare reading of the above mandatory provisions of the Code of Civil Procedure 1908 provides complete guidelines for the Courts and
Process-Serving Agencies. It says that in all cases in which summons have been served under Rule 16 CPC mentioned above, the Process-Server shall
require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, Rule 19 CPC lays down the procedure for the Courts that where a summon is returned under Rule ,17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further.
7. In the instant case, endorsement on the back of summons does not indicate any such method that the mode of service is affected in line with the above provisions of law. There is no mention of identifying the person served, as to who had identified the petitioner at B.C. office, no witness is cited that in whose presence the service is affected, there is no endorsement on the back of the summons that as to why the petitioner is not served at his home address given in the plaint, and that what were the circumstances led him to locate the petitioner at B.C. office. Similarly, the Court before proceeding ex-parte had not examined the process-server on oath. The appellate Court had also treated the appeal before him off-handedly without applying his mind to the mandatory provisions of law. He was so careless that he had not even examined that under what provision of law, the application for setting aside the ex-parte decree was moved by the petitioner. He had treated such application U/S. 12(2) CPC and dismissed the appeal perhaps he was not conversant with the law on the subject that in case the
application of the petitioner was filed U/S. 12(2) CPC, the time prescribed thereof is three years and not thirty days, as repeatedly held by the apex Court, as falls under Article 181 of the Limitation Act. It is also noticed with serious concern that both the Courts below have not appreciated the fact that after excluding the vacation period, the time is to be counted (thirty days) after excluding intervening period of Summer vacations. As such, in my view, the Courts below have not dealt
with the matter from all legal angles and disposed it of against the all norms of justice.
9. In the wake of above discussion, I am inclined to accept this revision petition, set aside the impugned judgments and decrees of the two
Courts below and remand the case to the trial Court for trial denovo. The parties shall be provided with^an opportunity to contest the case which shall
be ---- decided on merits.............. The Courts are required to dispense substantial justice instead of disposal on mere technicalities. No order as to costs.
(A.P.) Case remanded
