The bare reading of the mandatory provisions of the Code of Civil Procedure, 1908 provides complete guidelines for the Courts and Process-Serving Agencies. It says that in all cases in which summons have been served under Rule 16 C.P.C. mentioned above, the Process Server shall require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, rule 19 C.P.C. lays down the procedure for the Court that where a summon is returned under rule 17 aforesaid duly verified, the Serving Officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his satisfaction to proceed further.
The Process Server was not summoned and examined on oath by the Court before initiating ex-parte proceedings to testify his report of service as provided under Order V Rule 19 CPC. Consensus of the courts are that for defending an exparte proceedings and decree the plaintif has to produce the process server to prove due service when the service was denied by the defendant.
The summon was neither witnessed by anybody from the locality nor any independent person was reported to be present at that time nor any affidavit was given in this regard. Endorsement on the back of summons does not indicate in such a method that the mode of service is effected in line with the above provision of law. There is no mention of identifying the person served as to who had identified the defendant ladies. It is also settled principle of law that where service of summons is denied and Process Server has nowhere stated in his report that copy of the summons is delivered to the defendant, the presumption would be that defendant is not properly served.
The ex-parte decree was passed without recording of any evidence, that rule of caution and propriety requires taking some proof from the plaintiffs for satisfying that the case set up by them was true. The learned trial Court adopted this process of passing the ex-parte decree without recording of evidence in the light of the Law Reforms Ordinance, 1972 as evidenced from the order.
The Law Reforms Ordinance (XII of 1972) read with section 6 of the Oath Act, 1873, introduced the verification of pleadings on oath by adding the words “on oath or solemn affirmation” after the word verified in Rule 15(1) of Order VI, C.P.C. After such amendment, in presence of verified pleadings on oath, the Court has powers to proceed the case ex-parte against the defendant and pass a decree under Order IX, Rule 6(1), C.P.C. without calling for an affidavit or recording of ex-parte evidence.
The application for setting aside ex-parte decree was governed with Article 164 of the Limitation Act, 1908 which provides period of 30-days from the date of decree or where summon was not duly served when the applicant has knowledge of the decree. Residuary Article 181 of the Act ibid, provides period of three years when the right to apply accrues. The defendants/ predecessors of petitioners were not duly served and the plaintiffs/predecessors of the respondents failed to establish on record that suit was quite in the knowledge of the plaintiffs or they were duly served.
It is settled principle of law that principle of natural justice must be read in each and every Statute unless and until it is prohibited by the wording of the statute itself . The principle of “Audi alterm parterm” is also one of the basic principle of natural justice that nobody should be condemned unheard. Law favours adjudication of lis on merit and not on mere technicalities. No one should be knocked out merely on technicalities.
Civil Revision No.14 of 2016.
Mst. Zohran Bibi, etc. Versus. Ghulam Qadir, etc.
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