1. ' MUZAFFAR ALI, J.--- The instant suit under Order XXXVII, Civil Procedure Code was registered in the office of this Court on 13-11-2006 and this Court ordered the notice to be issued to the defendant with the direction for a date in office .
2. ' The plaintiff claims recovery of Rs,3,47,200 due on the defendant with interest at the rate of 20% per annum from 20-6-2005 till realization of decretal amount. The claim is based on two dishonoured cheques numbers 8717527 and 8717528 respectively issued by the defendant in favour of the plaintiff. The defendant submitted application for leave to appear and defend the suit on 12- 9-2007, the copy of the same was supplied to the plaintiff and case was fixed for written reply and arguments on the application.
3. ' We heard the learned counsel for the parties.
4. ' The learned counsel for the plaintiff raised preliminary objection at the very outset of the arguments that, since defendant filed the application after lapse of limitation, provided under Article 159, Limitation Act and urged that the defendant was called through substituted service by publishing in press under Order V, rule 20(e), of C.P.C. When the Court satisfied that the defendant avoids service in ordinary way and he appeared before the office on 30-6-2007 but the application has been submitted before the Court on 12-9-2007, while Article 159 Limitation Act provides ten days when the summons is served upon, hence the application is miserably time-barred and not entertainable under law. The learned counsel for the defendant was confronted with the objection and asked to meet the same, he urged that limitation provided by Article 159 of the Limitation Act is not impediment in the way of the application, as the said Order XXXVII envisages a special procedure but the Court, contrary to the special procedure provided by the Order has adopted ordinary service process for attendance of the defendant. The learned counsel referred the case- law to fortify his contention as under:---
(1) 1990 MLD 1258, (2) PLD 1984 Kar. 252, (3) 1984 CLC 374, (4) 1994 MLD 1117, (5) PLD 1988 Lah. 424,
(6) 1986 CLC 2236 (7) 1993 CLC 2217.
5. ' The learned counsel for the plaintiff although conceded that Order XXXVII, rule 2, sub-rule (1) provides a special procedure and also conceded that the same has not been acted upon, but he denied the mandatory nature of the special procedure and stated that even then the limitation takes its own course and nothing could stop it from, running. He further stated that the application otherwise too, is time-barred as the defendant attended the office of the Court on 30-6-2007 but submitted the application on 12-9-2007, hence the application is on this score too is time-barred, he relied on the case-law as under in support of his version,
(1) 2007 MLD 1591, (2) PLD 1982 Kar. 745 (3) PLD 1986 Lah. 124(4) 2004 SCMR 836.
6. ' We have gone through the record of the case. The record of the case transpires that, the suit has been dealt with as an ordinary suit, rather to deal the same as summary suit by adopting the special procedure laid down for under Order XXXVII, rule 2, sub-rule (1), C.P.C. The suit has been registered by the Registrar of the Court on 13-11-2006 and placed the suit before the Court on 23-11- 2006 and this Court ordered to issue notice to the defendant for a date in office without resorting to the procedure purported in rule 2, sub-rule (1) of the Order XXXVII, C.P.C. And the office of the Registrar has also complied the above order of this Court in ordinary manner of service of summons without adopting the special procedure as the perusal of summons in the case record show that neither the defendant has been intimated about the institution of the summary suit under the order nor has been attached the copy of the plaint with the summons and even no one can infer from the perusal of the "format" of the summons issued to the defendant, whether any suit, revision, review or appeal has been instituted against the defendant as column for this purpose is blank in all summons, even from the perusal of the notice published in the newspapers it does not appear that the matter pertains to summary suit under Order XXXVII on negotiable instrument, hence, the fact is above board that the procedure purported in rule 2, sub-rule (1) of the order has been ignored throughout and the suit has been dealt in ordinary manners.
7. ' Keeping in view the above facts inferred from the record of the case, now we want to probe into the issue that whether the special pattern provided in this order to process the summons in the suit is mandatory to follow and if ignored or violated the same, what would be the legal consequences thereof, in this regard, both the learned counsel have referred ample case-laws in pro and contra which may guide us to reach into a just conclusion, but before going into the case-law, we deem it proper to reproduce the relevant order and rule and also format No,4 Appendix "B" as Order XXXVII, rule 2, and sub-rules (1) and (2):---
(1) All suits upon bills of exchange, hundis or promissory note, may, in case the plaintiff desires to proceed thereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No,4 in Appendix 'B' or in such order form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree.
8. ' No,4 summon in summary suit on negotiable instrument (O.XXXVII, R.2)
9. (Title)
10. To (Name, description and place of residence)
11. ' Whereas...Has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs,...Balance of principal and interest due to him as the of a which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs and the sum any, from the date of the institution of the suit as the Court may order)
12. ' Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit.
13. ' Given under my hand and the seal of the Court this day of....
19. Judge 'We minutely perused the relevant law, reproduced and also visited the case-laws cited by both the learned counsel and of the firm opinion that , the higher Judiciary in Pakistan is at consonance that the special procedure provided by Order XXXVII, C.P.C. Is mandatory in nature and the limitation period of 10 days under Article 159 of the Limitation Act would not run against a defendant unless the special procedure has not been followed in service of the summons to the defendant, as this view has been held by High Courts, some of the relevant portions of the referred case-law arc reproduced as under:-- 1994 MLD page 1117.
(b) Limitation Act (IX of 1908)--- ' ----S. 3 & Art. 159---Civil Procedure Code (V of 1908), 0. IX, R.7---Service of summons on defendant not found to have been properly made on basis of form referred in R.2, 0. XXXVII, C.P.C.-- -Period of limitation had not started to run against defendant---Provisions of Limitation Act, 1908 are to be strictly construed and no inferential assumption is permissible to be made as regards the sine qua non for limitation and the time of starting the period of limitation.
14. ' PLD 1988 Lahore page 424.
(c) Civil Procedure Code (V of 1908)--- ' O. XXXVII, R. 3---Suit for recovery of Bank loan---Leave to defend suit---Limitation, starting point of---Period of ten days for making application to defend suit, held, would begin from the time defendant was served through process issued in prescribed form---Where service of defendant was never effected through any such process issued on prescribed form and he had filed application seeking permission to defend suit within time allowed to him by Court, same would be deemed to be within time.
15. ' In the present case, admittedly, the special procedure has not been adopted and the suit has been dealt in ordinary manners, in summoning the defendant, hence no limitation under Article 159 Limitation Act runs against the application for leave to appear to defend the case, filed by defendant.
16. ' The second point of objection raised by the learned counsel for the plaintiff also has no substance, for the reason (a) that, on 30-6-2007, the defendant attended the office of the Court and not the Court as the matter had been dealt in ordinary manners and date was fixed in office, furthermore, the adjournment from'9-8-2007 to 12-9-2007 was made by the Court which amounts as granted by the Court, (b) that since the case has been dealt within ordinary manners and the special procedure has not been adopted in process of summons and no decree either ex parte or otherwise has been passed against the defendant and the matter is sub judice before the Court as such, the defendant could not be deprived of his right to defend the case on technicalities.
17. ' The upshot of the above discussion is that, the application is allowed and the defendant is allowed his appearance before the Court and to defendant himself by submitting the written statement on 18-3-2009, but the defendant is strictly directed that, after this the case would be dealt summarily as construed under Order XXXVII, C.P.C. Therefore, the above date is last to submit his defence.