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(a) Civil Procedure Code (V of 1908)‑--

---S. 115, O. XXXVII, rr. 2 & 3 & O. V, rr. 16, 17 & 18‑Limitation Act (IX of 1908), S. 5‑Finding of fact‑Question with regard to date on which defendant was personally served Order of trial Court neither without jurisdiction nor trial Court committed any excess of jurisdiction‑Judgment of trial Court revealing that apart from question of jurisdiction, decision on question of fact did not suffer from any illegality or any material irregularity which could be corrected under S. 115, C. P.C.‑High Court's judgment in revision not showing any justification for interference with finding of fact in its revisional jurisdiction under S. 115, C. P. C.‑Mere fact that High, Court differed with trial Court with regard to appreciation of material before trial Court, namely, report and verification on oath of process‑server, held, could not justify interference in revisional jurisdiction.

(b) Civil Procedure Code (V of 1908)‑--

‑‑‑ O. V, rr. 16, 17 & 18‑Service of summons‑Clarification as to an aspect of legal position.

Where the process‑server serves the summons on the defendant personally or to an agent or other person on behalf of the defendant, "he (process‑server) shall require the signature of the person to whom . . . . an acknowledgement of service endorsed on the original summons". The language used in the rule shows as if it is mandatory; failing which the services would be treated as not effected: Prima facie this seems to be the position but with two important overriding conditions: (1) where the defendant agrees that he was in fact served but signatures were not obtained, is that situation absence of the signatures on the summons would not make any difference in an ordinary case. (2) Situations some times arise where despite the admission regarding service by the defendant he would be able to urge and show that he had been caused prejudice by the process‑server not obtaining the signature. The failure of the process -server to obtain the signature of the defendant on whom he served the summons where-under he might have given the date of the receipt of the summons leads to an extraordinary and major controversy. Where these was no dispute about service of the summons but was a serious dispute with regard to the date of the service of the summons, rule 16 took care to avoid prejudice to a defendant in such cases. It will also be useful to look for the signature and date underneath as required by rule 16 in other cases where the period of limitation for doing certain things by the defendant starts from the date of his service. Therefore, it will not be proper to assume that the requirement of signature and date is a mere technicality in all the cases. In some it is so, in some it is not so. Therefore, all the concerned Courts should impress upon the serving officer to strictly comply with rule 16. Whether ultimately in a given case the requirement is treated as having major or minor effect on an issue in the case will depend upon the circumstances of each case. Some principle would apply to the requirement under rule 18 whereby the serving officer "in all cases in which the summons has been served under rule 16 . . . . . . . (shall state 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." These are salutary provisions and have been incorporated in the Code of Civil Procedure so as to avoid fraudulent claims of service or unjustified denial thereof. The provisions must be complied with in letter and spirit.

Khawaja Ahmad Tariq Rahim, Advocate Supreme Court and Khawaja Mushtaq Ahmad, Advocate‑on‑Record for Petitioner.

Jawad S. Khawaja, Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑on‑Record for Respondent.

Date of hearing : 3rd February, 1986.

MUHAMMAD AFZAL ZULLAH, J.

‑Leave to appeal has‑been sought from judgment dated 19‑4‑1983 of the Lahore High Court; whereby a Civil Revision arising out of a money suit under Order XXXVII of the Code of Civil Procedure, was allowed.

The facts relevant for the present stage given in the petition briefly stated are that on 14‑7‑1982 the respondent/plaintiff instituted a suit in the Court of Senior Civil Judge, Lahore, under Order XXXVII of the Code of Civil Procedure, claiming a decree of Rs. 3,10,000 together with interest and costs on the basis of five dishonoured cheques drawn by the petitioner/defendant and payable to the respondent/plaintiff. Summons on Form No. 4 of Appendix B', Civil Procedure Code, in accordance with the provisions of rule 2 of Order XXXVII, Civil Procedure Code was issued to the petitioner/defendant, which according to the report of the process- server was served on the petitioner/defendant on 7‑10‑1982. This report was endorsed by the process‑server with his affidavit dated 12‑10‑1982.

On 23‑10‑1982 the petitioner/defendant filed an application under Order XXXVII, rule 3, C. P. C. before the learned trial Court for leave to appear and defend the suit. This application was resisted by the respon dent/plaintiff by his written reply dated 3‑11‑1982. The learned trial Court, vide its order dated 16‑12‑1982 allowed the petitioner/defendant's application under Order XXXVII, rule 3, C. P. C. for leave to appear and defend the suit.

The respondent/plaintiff challenged the above order of the learned trial Court by filing a Revision Petition in the High Court which was accepted on 19‑4‑1983 on the point of limitation. Hence, this petition for leave to appeal.

The question of limitation arises in the following circumstances:

It is admitted that the period of limitation for filing an application to have leave to appear and defend a suit under Order XXXVII, rule 3, is 10 days from the date of the service of the summons in the special form prescribed in the C. P. C. mentioned above. The petitioner was sought to be served personally through a process‑server as well as through a registered notice, acknowledgement due. Admittedly the registered notice was served on 12‑10‑1982. The record having been summoned, the acknow ledgement due receipt showing the same is available on record. The other notice‑sent on form specified in this behalf through the process‑server pur ports to have been served on 7‑10‑1982. This purports to have been shown in the report of the process‑server, but immediately beneath the report there is his verification under oath wherein he is shown to have done the same on 12‑10‑1982. The learned trial Court attached importance to the date of service on acknowledgement due as also the date on the statement on oath under the report of the process‑server, both being 12th of October, 1982, and treated the application for leave to defend filed on 23rd of October, 1982, as within time because 22nd was a holiday. On merits of the application the objections raised from the plaintiff‑side were overruled and the petitioner/defendant was granted leave to defend. On plaintiff/respondent's revision in the High Court, however, a learned Single Judge attached importance to the purported date under the report of the process‑server i.e. 7‑10‑1982 and held that the petitioner/defendant was served on that date, therefore, the application for leave to defend filed on 23rd October, 1982 was barred by time; and while accepting the Revision Petition the application was dismissed. The argument that under Order V, rule 16 it was mandatory for the process‑server to have obtained the signatures with date, on his report as acknowledgement from the defendant/petitioner of the service effected personally on him as a mark of his authentication was treated only a technicality and non compliance therewith by itself was not considered a material irregularity; because the defendant had not challenged the factum of service of the notice on him. Similar was the comment with regard to contravention of rule 18 (besides rule 16) of Order V to the effect that the name and signatures of the person identifying should appear alongwith the report of 'the process‑server which admittedly was not done in this case. Regarding service on the petitioner on 12‑10‑1982 through post the learned Judge was of the view that this fact also would not automatically extend the period of limitation because according to his observations the defendant had already been personally served on 7‑10‑1982.

While disposing of the Revision Petition the learned Judge remarked that the petitioner was not entitled to condonation of delay under section 5 of the Limitation Act because he had failed to file an application under the said provision before the trial Court. And regarding extension of time by the High Court under section 148, C. P. C., it observed that the same was not attracted.

Taking queue from the observation in the High Court judgment regarding the filing of the application under section 5 of the Limitation Act, the petitioner, after the acceptance of the Revision Petition against him by the High Court, filed an application under section 5 of the Limitation Act before the trial Court. It was dismissed on the ground that it was belated and had been filed after the matter had become past and closed by the judgment of the High Court, therefore, it was dismissed.

Learned counsel for the petitioner has reiterated his argument before us that the actual date of personal service through specified notice as evidence by the date under verification on oath by the process‑server should have been taken as 12th of October, 1992. The contention with regard to the discrepancy of the report above the verification on oath, was that it was a fake date obtained with the connivance of the process‑server. He has also reiterated the argument that under combined reading of rules 16 and 18 of Order V that date would be accepted as the date of service of the summons which the addressee (that is the defendant) gives under his signatures and/or the date which the witness gives under his signatures. As the process‑server failed to obtain either of the two signatures with dates, therefore, the best course in the interest of justice and fair-play as also in accordance with law was to accept the date underneath the verification on oath of the process‑server i.e. 12‑10‑1982. Learned counsel also raised argument with regard to the form of the notice of service.

Learned counsel for the respondent/caveator has vehemently contested the petition and has contended that the High Court was right in accepting the date mentioned in the report of the process‑server in preference to the date given under his statement on oath. He also explained that the latter date is not the date on which the verification on oath was made it is the date on which verification was attested.

We have heard both the learned counsel at some length. The ques tions involved required consideration. Accordingly, we have converted the petition into an appeal and proceed to dispose it of accordingly.

The main controversy is with regard to the date on which the petitioner/defendant was personally served. The learned trial Judge had rendered a finding of fact that the service took place on 12‑10‑1982. This order was neither without jurisdiction nor the learned trial Judge had committed any excess of jurisdiction. Moreover, the High Court judgment does not show any justification for interference with the finding of fact in its revisional jurisdiction under section 115 of the Civil Procedure Code. Careful scrutiny of the judgment of the trial Court reveals that apart from any question of jurisdiction, the decision on question of fact does not suffer from any illegality or any material irregularity which could be corrected under section 115, C. P. C. The mere fact that the learned Judge in the High Court differed with the vial Court with regard to the appreciation of the material before the trial Court namely, the report and verification on oath of the process‑server could not justify interference in revisional jurisdiction.

However, the matter does not end here. The record summoned by this Court reveals that the learned Judge in the High Court, with respect, misread the material referred to above. It is true that the same has been quoted in the impugned judgment but unfortunately the quotation seems to have peen made from sortie copy and not front the original. The process‑server wrote the 'report of service on the petitioner and signed it, it seems without giving the date. There is a gap between the last words and the signatures of the process‑server namely "M. Nawaz. P. S". This gap, it is obviously apparent from the original, was filled at some later stage with a date which purports to be 7‑10‑1982. As it had been done subsequently, therefore, there is another 'signature above this date of the process-server, namely, "M. Nawaz P.S.". We have examined this entry of the date with the magnifying glass and have discovered a clear overwriting on some figures. It is true that the overwriting is not on the figure "7" but the fact that there is an overwriting and a gap seems to have been filled subsequently with a signature of the process‑server creates very strong presumption in favour of the petitioner that initially the process‑server had not dated his report. Accordingly the only authentic date would be that on the verification on oath which undoubtedly is 12‑10‑1982. This finds further support from an endorsement in red ink in language which probably escaped the notice of the person who might have prepared the copy from which the learned Judge in the High Court made the quotation. The endorsement is on the same page where the report and the verification on oath exists and it reads as follows:

(Sd.) 12‑10"

We also examined the possibility that this writing in vernacular might have been by the official who received the notice in Court after its service and then made some endorsement thereon. But there is a separate endorsement to that effect on the front page of the notice which reads "23‑10‑ 1982". These findings further get support from the fact that the notice sent to the petitioner/defendant through registered post was also served on 12‑10‑1982.

For both these reasons namely, that the High Court had no jurisdic tion in the circumstances of this case, to interfere with the findings of fact by the trial Court in its revisional jurisdiction and also for the fact that according to our reading the documents concerned clearly show service on 12‑10‑1982 and not on 7‑10‑1982. This appeal merits acceptance. The question, however, arises as to what should be the order.

The respondent had in addition to the question of limitation raised several other objections of merits as well as .procedural, to the maintain ability of the application for and grant of leave to defend (granted by the trial Court) in the grounds of revision filed in the High Court. Question of limitation having been resolved in favour of the petitioner, the other questions are yet to be dealt with by the High Court. We, therefore while accepting this appeal would remand the case to the High Court for deciding the remaining points involved in the Revision.

Before closing this judgment we deem it necessary to clarify an aspect of the legal position regarding service of summons under Order V, rules 16, 17 and 18, C. P. C. which read as follows:

"16. Persons served to sign acknowledgement.‑

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 tae person to whom the ropy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.

17. Procedure when defendant refuses to accept service, or cannot be found.

--Where the defendant or his agent or, such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which tae defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

18. Endorsement of time and manner of service.‑

The serving 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."

It is clear from the text reproduced above that where the process -server serves the summons on the defendant personally or to an agent or other person on behalf of the defendant, "he (process‑server) shall require the signature, of the person to whom . . . . . . an acknowledgement of service endorsed on the original summons". The language used in the rule shows as if it is mandatory, failing which the service would be treated as not effected. Prima facie this seems to be the position but with two important overriding conditions:

(i) Where the defendant agrees that he was in fact server but signatures were not obtained; in that situation absence of the signatures on the summons would not make any difference in an ordinary case.

(ii) Situations sometimes arise where despite the admission regarding service by the defendant he would be able to urge and show that he had been caused prejudice by the process‑server not obtaining the signature.

The present case can serve as one of the examples, of such situations. The failure of the process‑server to obtain the signature of the defendant on whom he served the summons whereunder he might have given the date of the receipt of the summons, had led to an extraordinary and major controversy. There being no dispute about service of the summons, there was a serious dispute with regard to the date of the service of the summons. Rule 16 took care to avoid prejudice to a defendant in case, like this. It will also be useful to look for the signature and date under neath as required by rule 16 in other cases where the period of limitation for doing certain things by the defendant starts from the date of his service.

Therefore, it will not be proper to assume that the requirement of signature and date is a mere technicality in all the cases. In some it is so, in some it is not so. Therefore, it is necessary .to remark that all the concerned Courts should impress upon the serving officer to strictly comply with rule 16. Whether ultimately in a given case the requirement is treated as having major or minor effect on an issue in the case will depend upon the circumstances of each case.

Same comment would apply to the requirement under rule 18 whereby the serving office: "in all cases in which the summons has been served under rule 16 . . . . . . (shall) state the time when and the manner in which the summons was served and the name and the address of the persons (if .any) identifying the person served and witnessing the delivery or tender on the summons".

These are salutary provisions and have been incorporated in the Code of Civil Procedure so as to avoid fraudulent claims of service or unjustified denial thereof. The provisions must be complied with in letter and spirit.

With the foregoing observations this appeal is allowed. The case is remanded to the High Court for the purposes already stated above. There shall be no order as to costs.

M. B. A. Case remanded.

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