' MUHAMMAD JEHANGIR ARSHAD, J.---This R.F.A. Has been filed against the judgment and decree, dated 6-10-2004 passed by learned Additional District Judge, Rahim Yar Khan whereby suit filed by respondent for recovery of Rs.4,75,000 on the basis of pro note, dated' 15-1-2003 was decreed in favour of the plaintiff/ respondent against the appellant/defendant with costs.
2. The facts relevant for the disposal of this appeal are that respondent/plaintiff filed a suit before the learned Additional District Judge under Order XXXVII, C.P.C. On 15-4-2004 for the recovery of Rs.4,75,000 on the basis of pro note, dated 15-1-2003 against the appellant/defendant. On institution of the suit the learned trial Court/Additional District Judge directed that suit be registered and notices/registered post A. D were ordered to be issued for the service of appellant/defendant for 28-4-2004. On 28-4-2004 the learned Additional District Judge observed that service of the defendant was not satisfactory therefore, he be served through proclamation in newspaper i.e. "EBARAT, Rahim Yar Khan" for 6-5-2004. Despite publication in the newspaper the appellant/ defendant did not turn up on 6-5-2005, the learned trial Court therefore, proceeded ex parte against him and adjourned the case for 8-5-2005 for ex parte evidence of the respondent/plaintiff. On 8-5-2004 after recording ex parte evidence of the plaintiff the suit was adjourned to 14-5-2005 when relying upon the ex parte evidence the said suit was decreed as prayed for. It appears that On getting knowledge of the said ex parte decree the appellant/defendant filed an application being under Order IX, rule 13, C.P.C. On 3-7-2004 and the learned trial Court after preliminary hearing issued notice to the respondent/ plaintiff on the said application for 14-7-2004. As the respondent/plaintiff could not be served for the said date, the matter was adjourned to 22-7-2004 for effecting service on the plaintiff. On 22-7-2004 the respondent/plaintiff appeared before the learned Additional District Judge in person and case was adjourned to 26-7-2004 for submission of reply to the said application as well as arguments on the same. On 26-7-2004 the reply was not submitted and hearing was postponed for 30-7-2004 when the reply was filed and allowing the request for adjournment, the case was adjourned to 3-8-2004 and then to 7-8-2004 for arguments. On 7-8-2004 the learned Additional District Judge called for the original file of the suit and adjourned the case to 9-8-2004 when the following order was passed:- "Learned counsel for the parties: ' Vide my separate order of even date recorded in English, judgment and decree, dated 14-5-2004, passed in the instant case has been set aside subject to cost of Rs.1,000. This suit be registered again. Now to come up for further proceedings on 12-8-2004.
Announced.
(Sd.)
9-8-2004 Addl: District Judge, R.Y. Khan."
3. On 12-8-2004 as the cost was not paid, hence the suit was adjourned to 10-9-2004 when cost was paid and the learned Additional District Judge directed that proceedings on application for setting aside ex parte decree stood fructified, therefore further proceedings would be held in the original file of the suit. On the same day i.e. 10-9-2004 the learned Additional District Judge held that as the original file stood restored, costs having been paid but no application for obtaining leave to appear and defend the suit had been filed, hence the matter was being adjourned to 17-9-2004 for further proceedings. On 17-9- 2004 the learned Additional District Judge pointed out that application for leave to appear and defend had already been filed on 15-9-2004 hence, its reply be submitted on 23-9-2004 which was submitted on the said date and case was adjourned for arguments on the said application. On 2- 10-2004 the case was further adjourned to 6-10-2004 on which date the learned Additional District Judge finding the said application not satisfactory and also being barred by time proceeded to dismiss the same and also decreed the suit of the respondent/plaintiff afresh against the appellant/defendant in the light of the evidence already recorded ex parte. Hence, this R.F.A.
4. Mr. Bilal Ahmad Qazi, Advocate appearing on behalf of the appellant has strenuously argued and to some extent rightly so that the learned trial Court was wrong in turning down the application of the appellant for leave to appear and defend the suit by holding the same as barred by time and thus the impugned decree passed in consequence thereof was not only without authority but also not justified in the circumstances of the case, inasmuch as the same was passed without recording fresh evidence of the respondent after setting aside the earlier ex parte decree as the evidence in the earlier decree could not be considered while passing the subsequent impugned decree and that in any case it was necessary for the learned trial Court to have recorded fresh ex parte evidence of the respondent and on this score also the impugned decree passed by the learned trial is not sustainable. In support of his contention that application filed by the appellant for leave to appear and defend was within time, the learned counsel has placed reliance on the case "Abdul Karim v. Nazir Ahmad" (PLD 1998 Lahore 163) and "Habib Bank Limited v.
Mussarat Ali Khan" (PLD 1987 Kar. 86). The learned counsel further contends that as the appellant was not served even prior to passing of the ex parte decree, dated 14-5-2004 as is also admitted by the learned trial Court itself in the order, dated 9-8-2004 while setting aside the said decree, hence the limitation of ten days for filing such application as prescribed in Article 159 of the Limitation Act did not ever start at all till restoration of file of the original suit and as said file was put up before the learned trial Court after setting aside the ex parte decree on 10-9-2004 for the.
First time, hence application moved by the appellant for leave to appear and defend on 15-9-2004 was well within time from 10-9-2004 and in this view of the matter, the learned trial Court not only acted illegally but also without lawful authority while dismissing the application of the appellant and the decree, dated 6-10-2004 passed in consequence thereof being illegal was liable to be set aside. His further contention is that since the ex parte decree earlier passed on 14-5-2004 was set aside by the learned trial Court vide order, dated 9-8-2004 therefore, all the proceedings including recording of ex parte evidence conducted by the learned trial Court prior to the passing of the said decree also lost Its legal efficacy, as such the learned trial Court under no provision of law was justified in relying upon the evidence recorded ex parte prior to the ex parte decree while passing the subsequent impugned decree.
5. On the other hand, Mr. Muhammad Akbar Cheema, Advocate representing the respondent/plaintiff has fully supported the impugned decree of the learned trial Court by contending that as the application of the appellant for leave to appear and defend the suit was filed after the expiry of 42 days of setting aside of the ex parte decree, hence the same was hopelessly barred by time, for which neither any plausible explanation was given by the appellant before the learned trial Court nor any application under section 5 of the Limitation Act (as made applicable by Order XXXVII, rule 3, C.P.C.) was filed seeking condonation .Of delay, hence the learned trial Court rightly rejected the said application of the appellant and passed the impugned decree.
6. We have given our considerate thought to the above-mentioned arguments of learned counsel for the parties and have perused the record with their assistance.
7. There is no denying of the fact, rather it is admitted by the learned trial Court itself in its order, dated 9-8-2004 while setting aside the ex parte decree that appellant was never served with summons as mandated by Order XXXVII, rule 2(3), C.P.C. And despite showing its dissatisfaction over the report of Process Serving Agency with regard to service of summons for 28-4-2000, the learned trial Court proceeded to seek service of the appellant . By way of citation in the newspaper for 6-5-2004 which in other words is substituted service and not due service as contemplated in Order XXXVII, rule 2(2), C.P.C. Or Order V, rule 20(1), C.P.C, which requires that the Court before issuing the substituted service must be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or for any other reasons service cannot be effected in ordinary course, it is only then that the Court shall direct substituted service by any of the modes prescribed in the said Rule including publication in the press. It was held in "Mst. Afzal Begum and others v. Y.M.C.A. Through its General Secretary, Lahore" (PLD 1979 SC 18) and "Muhammad Aslam v.
Additional District Judge, Rawalpindi and others" (1979 SCM R 85) that substituted service does not amount to due service. Hence, it is held that at no stage of proceedings conducted by the learned trial Court in the suit, the appellant was ever served as required by Order XXXVII or Order V, C.P.C, whereas the limitation under Article 159 of the Limitation Act only runs from the date of service. So far as the question, whether application moved by the appellant on 15-9-2004 for leave to appear and defend was within time, is concerned suffice it to say that as till 10-9-2004 even the file of original suit was not before the learned trial Court hence to say that limitation for this purpose started from the date of setting aside ex parte decree and as such application moved by the appellant on 15-9-2004 was barred by time, is not correct legal position and while following the judgment in the case "Habib Bank Limited v. Mussarat Ali Khan" (PLD 1987 Kar. 86) we are inclined to hold that application filed by the appellant on 15-9-2004 was well within time from 10-9-2004 and the findings of the learned trial Court holding that appellant was obliged to file such application within a period of ten days from acquiring knowledge since filing of application for setting aside the ex parte decree on 3-4-2004 (In fact 3-7-2004), is not based on legal premises. The appellant rightly filed application on 15-9-2004 within the period of ten days from 10-9-2004 when the file of original suit was put up before the learned trial Court and regular proceedings in the suit commenced after setting aside the ex parte decree. Therefore, there is no force either in the contention of learned counsel for the respondent nor the view taken by the learned trial Court is supported by law. We are further fortified in our view by the fact that under Article 159 of Limitation Act the timeframe fixed for moving such application is ten days from the date of service and since at no stage of the suit either the appellant was served or he was supplied copy of the plaint as ordained by Order XXXVII, rule 3, C.P.C., hence in the absence of any other evidence we are inclined to hold that appellant would be deemed to have been served in the suit for the first time on 10-9- 2004 and from that date since application was filed on 15-9-2004 was within ten days as required by Article 159 of the Limitation Act.
8. For what has been discussed above, this appeal is allowed, the impugned judgment and decree of the learned trial Court, dated 6-10-2004 is set aside and the case is remanded to the learned trial Court for deciding the suit of the respondent afresh after obtaining written statement and recording of evidence, in accordance with law.
9. Before parting with this judgment, we would like to point out that as held above the application filed by the appellant for leave to appear and defend the suit was within time, hence the same should have been allowed in terms of Order XXXVII, rule 3, C.P.C., so in order to avoid further wastage of time in passing any fresh order by the trial Court or imposing any condition for leave to appear and defend, we direct that the bank guarantee already furnished by the appellant/defendant in compliance with this Court orders, dated 25-1-2005 and 14-4-2005 shall ensure and shall remain in force till decision of the suit and be deemed as condition for grant of leave to appear and defend the suit before the learned trial Court. However, keeping in view the abovementioned controversy the learned trial Court shall ensure that suit of the respondent is finally decided on or before 24th of December, 2005 positively, with compliance report to the Additional Registrar of this Bench.