GH RASOOL SHAH Vs. MUMTAZ AHMAD SHAH

JUDGEMENT

(1.) THIS civil revision by the plaintiff is directed against the order of Sub Judg,e Srinagar dated 22.4.2004 in suit no. 43 of 1998 by which he set aside exparte decree. The Court held that in terms of provisions of order V of the Code of Civil procedure it is essential that copy of the summons be delivered to the person to whom it has been issued and in case of refusal, to affix a copy of summons at some conspicuous place and these facts must be mentioned in the report of the process server.

(2.) IN the instant case, as per the report of process server, he went to the court premises to serve summons on the defendant Mumtaz Ahmad Shah who is a practicing advocate. He after going through the contents of notice returned it to him (process server) refusing to acknowledge the receipt. The process server got signatures of four witnesses in token of attempt to serve summons on the defendant.

(3.) MR . Hessian submitted that irregularity in service of summons cannot be ground to set export decree. In this connection he referred second proviso to rule 13 of order 9 of the Code of Civil Procedure. He stated that the fact that the defendant had engaged Mr. G. A. Katoo as his counsel (even though he is a practising advocate himself) shows that he was aware of the suit. He also referred to paragraphs 4 and 5 of the defendants application for setting aside ex prate decree wherein it is stated that it was the negligence of the said counsel that the suit was decreed ex prate against him.