ASAD MUMTAZ WARRAICH vs ALI MUMTAZ WARRAICH O — 2024 PLD 233 LAHORE-HIGH-COURT-LAHORE

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ASAD MUMTAZ WARRAICH VS ALI MUMTAZ WARRAICH O.V, Rr. 16, 17, 19 & O. XXXVII, R. 4---Suit for recovery of money---Ex-parte decree, setting aside of---Appellant/defendant sought setting aside of ex-parte judgment and decree passed by Trial Court against him through an application, which was dismissed---Validity---Case of the petitioner was that he was not properly served in the suit---Record reflected that the suit under O. XXXVII, C.P.C. was instituted on 25.05.2022 on which the summons was ordered to be issued to the defendant/petitioner for 14.06.2022---On the said date it was observed that service upon the defendant was effected, however, summons was again ordered to be issued along with affixation at conspicuous place/address of the defendant---Copies of both the summons were available on record and though it had been stated in the report of the process server that the defendant had received the same yet his signatures were not obtained in acknowledgement of their receipt---Rule 16 of O. V, C.P.C., required the Serving Officer/Process Server to obtain signature of the defendant while delivering him a copy of the summons personally---Thus, the requirement of law had not been properly adhered to in the instant case inasmuch as signatures or thumb impressions of the petitioner had not been apparently obtained in acknowledgement of receipt of the summons nor was it stated in the reports of Process Server that signatures of the petitioner were required upon delivery of the summons in acknowledgement of service endorsed on the original summons---Necessary pre-conditions for invoking R. 17 of O. V, C.P.C., i.e. refusal of the petitioner or his agent to sign the acknowledgement or failure of the Process Server to find the petitioner after using all due and reasonable diligence were clearly missing, therefore, procedure adopted by the Process Server was clearly not under the said rule---Even otherwise a copy of the summons was not specified to have been affixed on the door or some conspicuous part of premises of the petitioner to satisfy requirement of said rule---Additionally, no further inquiry in the matter was carried out under R. 19 of O. V, C.P.C., facilitating examination of the Serving Officer---Service of the defendant/petitioner shown to be affected in the proceedings of the suit did not seem to be proper and in accordance with the law on the subject, in circumstances---Revision petition was accordingly allowed.

ASAD MUMTAZ WARRAICH vs ALI MUMTAZ WARRAICH O — 2024 PLD 233 LAHORE-HIGH-COURT-LAHORE

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