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Revision No. 1267 of 1962‑63, decided on 1st November 1963, District Gujranwala.

S. 3‑Tenant declining thumb‑mark on service of notice‑Statement of process‑server on affirmation about service to tenant Ex parte ejectment order‑Not to be set aside.

Mian Saeedur Rehman v. Majid Lashari and others P L D 1956 Lah. 434 ref.

Hamid Mukhtar for Petitioner.

Ghulam All for Respondents.

The respondents are co‑landlords of the land involved in these proceedings which is situated in Kot 13hawamidas, district Gujran wala. They had a notice of ejectment issued to the tenant‑peti tioner under section 3 of the Punjab Protection and Restoration of Tenancy Rights Act of 195(3. The petitioner is alleged to have received the notice but declined to thumb‑mark it, and a statement on solemn affirmation was made to that effect by the process server. The revenue officer held that the petitioner had been duly served, passed an ex parte order against hires and on the strength of the evidence produced before him ordered ejectment of the Petitioner. An app‑al preferred to the Collector was discussed and the first revision to the. Commissioner leas met the same fate. A second revision has now been filed.

The only ground taken up before me is that the petitioner tenant was not duly served in accordance with law. For this purpose reliance is placed on the proviso to section 45 (5) of the Tenancy Act, which runs as follows :‑

"Provided that the Revenue Officer shall not make the order until be is satisfied that the notice was duly served on the tenant."

In the circumstances which have been stated above the Revenue Officer was satisfied that notice was duly served on the tenant and thereupon he passed an ex parte order against the tenant. My attention has been drawn to the orders passed by Revenue Officer in this behalf and an English translation of it runs as follows:‑

"The petitioner is present. The respondent has not appeared. He has been duly served by posting the notice. The proceed ings against him are, therefore, directed ex parte."

It is contended that there is material difference in the order passed and the actual facts relating to service of the notice. The process server declared on solemn affirmation that he had handed over the notice to the respondent who had declined to thumb‑mark its receipt. This is at variance with what the Revenue Officer has stated in his order. The plea on behalf of the landlords is that material compliance with the law has been made and a mere technicality should not form the basis of a reversal of the order of ejectment. In support of this plea reliance is placed on Midn Saeedur Rehman v. Majid Lashari and others (P L D 1956 Lah. 434). It was observed by the learned Judge in the case that service was not defective simply because copies of summons were not delivered to the defendant and an extremely technical view of the manner of service must not be taken; and substantial compliance with the law is enough. The facts disclose that the petitioner was duly served and a mere) omission to ohtain the thumb‑mark which was deliberately avoided' by the tenant and the slight variance with facts in the order of the( Revenue Officer should not form the basis of setting aside thcfil ejectment of the tenant. In my opinion there is no ground; for interference in revision and the petition stands rejected.

K. M. A.

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