SALIMA KHATOON Versus MANZAR HUSSAIN

ORDER

This application under Order IX, Rule 9, C.P.C. read with section 151 C.P.C. is moved on behalf of the defendant against whom ex parte decree was passed by this Court on 4‑5‑1988. In the affidavit filed in support of the application, it is submitted by the applicant/ defendant that he was not served with the process and that he had no knowledge, that the suit was decreed till 2‑7‑1988, when he came to know that suit has been filed against him and till 31‑7‑1988 when he came to know from the High Court that a preliminary decree has been passed against him.

2. It appears from the record that on 14‑3‑1988 the learned Additional Registrar of this Court held the service against the defendant good on the following two grounds:‑

(1) Report of the Bailiff, and

(2) Endorsement of Postal Authorities.

3. The report of the Bailiff shows that on 3‑3‑1988 he had gone to the house of the defendant, where one lady told him that the defendant was not in the house. He again went on 9‑3‑1988 when the lady told him that the defendant was taking rest and asked him the reason why he wanted the defendant and that when he told her that he wanted to serve notice of the Court, the lady told him that he was not in the house. He, therefore, affixed the summons on the house.

4. It is submitted by Mr. A.F.M. Mokarram, that while adopting this procedure of service, the Bailiff had not complied with the relevant Rules. Under Rule 140 of the Sind Chief Court Rules (O.S.) "If the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb‑impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served". Under Rule 141 of the said Rules "Where the person to be served refuses to sign the acknowledgement or cannot be found, the serving officer shall, whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb‑impression of at least one respectable person of the locality in support of such fact".

5. It is submitted that from the endorsement of the Bailiff on the process, it cannot be said that the Bailiff was acquainted with the defendant or the house, but he had not obtained any signature or thumb impression of any person on the process as required by the at‑over two rules. Nor does his endorsement indicate that it was not possible to obtain such an endorsement. It is further submitted, that s even under Order V, Rule 17, C.P.C. where the summons is served by affixing a copy of the summons on outer door of the house of the defendant the Bailiff has to endorse a report on summons stating/giving the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Apparently from the endorsement of the Bailiff this Rule also does not appear to have been complied with.

6. Mr. Moinuddin Ahmed, learned counsel for the plaintiff has submitted that apart from the report of the Bailiff there was endorsement of Postal Authorities to the effect that the defendant had refused to accept the registered notice sent by registered cover and this endorsement under Order V Rule 10‑A C.P.C. shall be deemed by the Court issuing the summons to be prima facie proof of service of summons.

7. This provision of law attaches presumption of service, but this presumption is rebuttable presumption.

8. In his affidavit in support of the application, the defendant, in para. 6, has averred that he never received notice or summons in the matter. In the affidavit in rejoinder it is further clarified and stated in para. 3, that it was within the knowledge of the plaintiff that he was employed as an Engineer in Karachi Port Trust and Friday was the only day of holiday, otherwise he had to go to his office at 8‑00 a.m. and return at about 6‑00 p.m. and that his office is situated at nearly 10 miles from his house. He has further stated in para. 4, that 9‑3‑1988 was a working day and he was not in his house so that he could have refused or avoided to have accepted the summons. It is further stated in para. 5, that similarly the postman's endorsement of refusing the envelope was totally fabricated, as he was away from the house for work during the day and the postal remark was manipulated.

9. It may be pointed that the suit is between a sister and brother. The plaintiff is sister, whereas the defendant is brother. As such the plaintiff would naturally be in the know of the facts as alleged by the defendant in his rejoinder. His contention is that normally he would be in office during working day which looks probable and plausible. Under Rule 141 of the Sind Chief Court Rules (O.S) or under Order V, Rule 17, C.P.C. the Bailiff could have affixed the summons only when the defendant had refused or avoided to receive B the summons. In view of the aforesaid circumstances, the defendant could not be said to have avoided or refused to accept the summons. Besides that, as pointed above, neither any endorsement by way of signature of any witness has been obtained on the process, nor the name of such witness has been mentioned in the report by the Bailiff. As such the service by Bailiff cannot be considered as proper service.

10. Similarly the presumption arising under Order V, R.10(a), C . P. C . from mere endorsement 'Refused' on registered envelope stands rebutted by the aforementioned statement on oath by the defendant.

11. Mr. Moinuddin Ahmad learned counsel for the plaintiff has further submitted that the application is barred by limitation. In para. 3 of the affidavit, the defendant has submitted that he never came to know earlier than 2‑7‑1988 that a suit has been filed by the plaintiff against him in the High Court of Sind and on 3‑7‑1988 for the first time copy of the plaint was handed over to him before the Nazir by the Advocate for the plaintiff. It is submitted by Mr. Moinuddin Ahmad that the plaintiff had knowledge on 2‑7‑1988, therefore, his application on 3‑8‑1988 was time‑barred under Article 164 of the Limitation Act.

12. Mr. A.F.M. Mokarram, learned counsel for the defendant pointed to para. 5 of the affidavit which is not rebutted in the counter affidavit, wherein the defendant has stated that on 31‑7‑1988 he came to know that a preliminary decree has already been passed against him. It is submitted that under Article 164 of the Limitation Act, the time of limitation starts running from the date knowledge of decree and not from the knowledge of suit and as such this application cannot be considered as time‑barred.

13. Considering all the aforesaid submissions, in my opinion, there was no proper service of the summons of the suit upon the defendant and as such I allow the application and set aside the ex parte decree‑1 The suit is adjourned to a date in Office for further proceedings.

M . Y . H . /S‑264/ K . Application allowed.