ALLAH BAKHSH vs ABDUL AZIZ
This civil appeal arises from a judgment and decree passed by the trial court in a suit for recovery of Rs. 21,000 filed on the basis of a promissory note, which was decreed after the appellant's application for leave to defend was dismissed as time-barred. The core legal question before the Lahore High Court was whether the summons were properly served upon the defendant in accordance with the law, thereby justifying the computation of the limitation period for filing an application for leave to defend. The Court held that service of summons was defective as the process-server failed to deliver or tender a copy of the summons as mandated by law. Consequently, the High Court set aside the judgment and decree of the trial court and remanded the case back for a fresh decision. The key principle laid down is that strict compliance with the prescribed mode of service of summons under the Code of Civil Procedure is mandatory before penal consequences such as the dismissal of an application for leave to defend can be visited upon a defendant.
- Whether service of summons is legally valid when the process-server fails to deliver or tender a copy of the summons to the defendant?
- Can an application for leave to defend be dismissed as time-barred if the defendant was not properly served with summons?
- What is the proper procedure for the service of summons under Order V Rule 10 of the Code of Civil Procedure 1908?
- Rule 10, Order V, Code of Civil Procedure 1908
' On 5-5-1987 Abdul Aziz respondent filed a suit for the recovery of Rs,21,000 on the basis of promote against Allah Bakhsh appellant in the Court of learned District Judge, Bhakkar. The trial Court issued summons to the defendant/appellant in Form-4 Appendix 'B' for 15-6-1987. The summons were served on him on 12-5-1987. He failed to appear and apply for leave to defend the suit within 10 days of the service of the summons. On 16-6-1987, he submitted application for leave to defend, which was declined and the suit was decreed on 25-671987 against him.
2. Learned counsel for the appellant submitted that since copy of the summons was not delivered to the defendant/appellant, therefore, the summons was not properly served. Learned counsel for the respondent has supported the judgment and decree of the trial Court. He maintained that from the report of the process-server it is very much clear that the summons were actually served on the respondent on 12-5-1987.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. The relevant provision of law may be reproduced advantageously.
' Rule 10. Order V, C.P.C.
"Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in his behalf, and sealed with the seal of the Court."
The process-server has nowhere stated in his report that copy of the summons was delivered to the defendant. He was examined by the trial Court. He stated: {{URDU TEXT}} ' He further stated. {{URDU TEXT}} ' In view of the statement made by the Process Server, it can safely be said that the defendant/appellant was not properly served. That being the position, there was no justification for the trial Court to reject the application for leave to defend the suit, as barred by time and decree the suit on account of the default of the defendant/appellant to file application for leave to defend the suit within 10 days of service of summons.
' Pursuant to the above discussion, the appeal is allowed. The judgment and decree of the trial Court is set aside dud the case is sent back to the trial Court for fresh decision in accordance with law. The parties will bear their own costs.
Cited by 5 cases
- Mst. ZOHRAN BIBI Versus GHULAM QADIR 2022 MLD 250
- Municipal Committee vs Deputy Administrator, And 3 Other K.L.R. 2006 Revenue Cases 89
- Municipal Committee vs Deputy Administrator, and 3 others 2006 C.L.R. 152
- MUNICIPAL COMMITTEE, GUJRAT Versus DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY, GUJRAT 2004 MLD 1170
- KHURSHID ALAM vs AL KHAIR GADOON LIMITED Through Legal Director 2003 YLR 2583