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Civil Miscellaneous Applications Nos. 4110 and 4315 of 1978 in Civil Suit No.752 of 1976, decided on 16th May, 1981.

---O.IX, R.13--Sind Chief Court Rules (O.S.), Rr.142 & 143--Ex parte decree--Setting aside of--Non-compliance of Rules--Effect- Reports of process-server regarding service of summons on defendant, personally as well as by affixation on outer door of premises occupied by defendant were not witnessed by any respectable person of locality as required by Rr.142 & 143 of Sind Chief Court Rules (Original Side)--Prescribed rules having not been complied with, service of summons on defendant, held, was not proper--High Court allowing application of defendant is under O.IX, -R.13 of C. P. C. set aside, ex parte decree passed against defendant in circumstances.

---O.IX, R.13--Sind Chief Court Rules (O.S.), Rr.142 & 143--Non compliance of rules--Effect--Non-compliance of Rr.142 & 143 of Sind Chief Court Rules (Original Side), held, would render service of summons invalid.

Mukhtar Begum v. Muhammad Hussain P L D 1963 Lah. 364 ref.

Sher Ali for Plaintiffs.

Mirza A. Rashid for Defendant No.1.

Defendant No.1 has applied for setting aside of the decree under Order IX, rule 13, C.P.C. The suit was decreed on 8-3-1978 and the application for setting aside the decree was made on 23-10-1978. It is alleged that the defendant No.1 was not at all aware of the institution of the suit and service of the summons was never effected on him. It is claimed that defendant No.1 came to know of the suit and the ex parte decree for the first time on 21-10-1978 when the bailiff came for execution of the decree. It is also stated by defendant No.1 that he met with an accident on 14-8-1976 and since then is bedridden. The allegation with regard to the non-service of the process are strongly denied by the plaintiff. Mr. Sher Ali, the learned counsel for the plaintiff produced before me certified copies of the reports of process-server in the suit to contend that the defendant No.1 was all along avoiding service of summons on him. I have seen the certified copies of the reports .of process-server, dated 8-3-1977, 3-5-1977 and 15-8-1977. It is categorically stated by the process-server in these reports that he offered the summons to defendant No.1 personally on each occasion who was found present, but he refused to accept the same and, therefore, he allegedly pasted a copy of summon on the premises occupied by defendant No.1 every time. These reports are, however, not witnessed by any respectable person of the locality as required under Rule 142 of the Original Side Rules with the result the service was not accepted by Additional Registrar (O.S). The plaintiff then applied under O.V, rule 20, C.P.C. for substituted service of summons on defendant No.1 which was allowed. The summons were accordingly ordered to be served on defendant No.1 by affixation on the outer door of the premises occupied by defendant No.1 and by publication in the newspaper. In his report, dated 21-11-1977 the process-server has stated that on 31-10-1977 he pasted a copy of the summon on the Notice Board of the Court and on 16-11-1977 he went to the addresses of defendant No.1 and pasted the copy of the summon there. This report does not show that defendant No.1 was present at the premises at the time of affixation of summon. The learned counsel for defendant No.1, accordingly contended that report of process-server did not comply with the requirement of Rule 143 of the Original Side Rules and, therefore, there was no service on defendant No.1. Regarding publication of notice in newspaper, it is contended by the learned counsel that the paper in which the summons were published is neither subscribed by defendant No.1 nor he read the same. It is also contended that report of process-server is also not on oath as required under the rules. The contentions of learned counsel for defendant No.1 are not without force. Rule 142 of the Original Side Rules clearly provides that every report of a process serving officer shall be sworn or affirmed before the Nazir or Deputy Nazir of the Court. The certified copy of the report filed by Mr. Sher All does not show that these reports were sworn or affirmed before the Nazir or Deputy Nazir as required. Similarly Rule 143 provides that if the process is affixed in the absence of the person to be served, the serving-officer shall make an affidavit as to the number of times and dates and hours at which he went to the place, the attempts made by him to find the person to be served, whether he had any, and what reason there was to suppose that such person was within the house or in its neighbourhood or endeavouring to evade service and whether any adult male member of the family of the person to be served was residing' with him. After reading the report of process-server, dated' 21-11-1977, there can be no doubt that the report of process-server did not comply with the above requirements. Apart from the non-compliance-'of the- above two rules pointed out by the learned counsel for defendant No.1, none of the reports of serving officer complied with rule 140 of the Original Side Rules. According to the reports, the process-server did not claim to be acquainted with the defendant. In such a case, the serving officer is required to obtain thumb impression or signature of a respectable person of the locality identifying such person or place of residence or the house or property on which process is served whenever possible. These reports did not say that it was not possible for the serving officer to obtain thumb impression or signature of a respectable person of the locality. I, therefore, hold that service of summons by affixation was not proper and as it has not been shown that defendant No.1 used to subscribe to the newspaper or used to read it in which summons were published the service of summons by publication, in view of the statement on oath made by defendant No.1 that he never read that newspaper, also cannot be held good in these circumstances. The learned counsel for the plaintiff has contended that the non -compliance and irregularities pointed out by the defendant No.1, in the reports of process-server are of minor nature and, therefore, should be condoned but in my view non-compliance of the rules referred to above rendered the service of summons invalid. In support of his contention, the learned counsel for the plaintiff referred to-the case of Mukhtar Begum v. Muhammad Hussain reported in P L D 1963 Lah. 364 but this case is of no assistance to the plaintiff in the present case. I accordingly allow the application under Order IX, rule 13, C.P.C. filed by defendant No.1 and set aside the ex parte decree passed against him on 8-3-1978, but in view of the fact that the suit was filed in 1976 and is under Fatal Accidents Act, I order defendant No.1 to file his written statement within one month from today. The suit will be listed for regular hearing in Court in the month of August, 1981, soon after summer vacation.

H. B. T. N-8 /K. Ex pate decree set aside.

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