' MUNIB AKHTAR, J.---The present appeal was filed against the judgment and decree dated 7-7- 2010 in Suit B-41/2010, which had been instituted by the respondent Bank in this Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the 2001 Ordinance"). On 19-10-2010, the appeal was fixed for final disposal at the katcha peshi stage. Learned counsel for the parties were heard on 13-12-2010, and at the conclusion of the hearing, the appeal was disposed of as follows:-- "Both the learned counsel have concluded their arguments. For reasons to follow the appeal is allowed and the impugned order and the order dismissing the leave to defend application on the question of merits is set aside and the matter is remanded back to the learned Single Judge to first hear the leave to defend application on merits and after decision on merits on the leave to defend application the suit may be disposed of in accordance with law. This exercise should preferably be completed within a period of 60 days from today."
' The following are our reasons for having disposed of the appeal in the foregoing terms.
2. The relevant facts necessary for the disposal of this appeal are as follows. After the suit was instituted, the summons was issued to the appellants (who were defendants therein) as required in terms of section 9 of the 2001 Ordinance. It is common ground between the parties that the summons was first served by means of publication in the newspaper on 27-1-2010. The appellants filed their leave to defend application on 1-3-2010. When the application came up for hearing, the first point raised before the learned single Judge was whether it had been filed within time. The appellants contended that the day on which the summons was served (i.e., 27-1-2010) was to be excluded and thus the last day for filing the application was 26-2-2010. However, that day (and the next following day as well) were holidays and the first working day thereafter was 1-3-2010, when the leave to defend application was filed. It was contended that therefore the application was within time. In reply, learned counsel for the respondent bank (i.e., the plaintiff) submitted that under the 2001 Ordinance, the day of service of summons was also to be included in the computation of the period of limitation, since section 10(2) required that the leave to defend application "shall" be filed "within thirty days of the date of the first service". The learned single Judge, relying on Qureshi Salt and Spice Industries and another v. Muslim Commercial Bank Ltd.
1999 SCM R 2353 and National Bank of Pakistan v. West Pakistan Tank Terminal (Pvt.) Ltd. 2000 CLC 896 (a decision of a single Judge of this Court) concluded as follows:-- "The other cases referred to by the counsel are distinguishable and not specifically dilating on the point of determination of the first day for purpose of calculation of statutory period of 30 days. The words 'shall', 'within' and 'of are significant and the bare reading of subsection (2) of section 10 of the Ordinance 2001, leaves no doubt in my mind that the defendants under the aforesaid law were required to file the application to leave to defend within 30 days of service or of the day of the publication in the newspapers and the 30 days would commence from the date of publication."
(emphasis in original)
' On the foregoing basis, the learned single Judge concluded that the last day of limitation was 25- 2-2010. Since the application for leave to defend was filed after that date, it was dismissed as time- barred. The suit was thereafter fixed for final disposal and judgment and decree followed in favour of the respondent bank by means of the impugned decision dated 7-7-2010.
3. Before us, learned counsel for the appellants renewed his contention that the leave to defend application had been filed within time and had therefore been wrongly dismissed by the learned single Judge. His case was that since the leave to defend application had not been considered on the merits, the appeal ought to be allowed and the matter remanded to the learned single Judge for such consideration. Learned counsel for the respondent bank on the other hand contended that the learned single Judge had correctly applied the law with regard to limitation and the leave to defend application had been properly dismissed. Quite obviously, the question of how the period of limitation was to be computed went to the root of the matter and we accordingly directed learned counsel to first make submissions on this point. Learned counsel for the appellants submitted that on a proper interpretation, the day on which the summons was served had to be excluded while computing the period of limitation. He placed reliance on section 9 of the General Clauses Act. He submitted that the learned single Judge had misconstrued the two decisions relied upon by him and there was no finding therein that supported the conclusion that the day of service had to be included while computing the period of limitation. Learned counsel for the respondent bank on the other hand submitted that the learned single Judge had correctly applied the law. He pointed out that the word used in the 2001 Ordinance was "of' and not "from". Section 9 of the General Clauses Act applied only if the latter word was used and it was only in that situation that the day of service stood excluded. He submitted that in the previous law on the subject, i.e., the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 ("the 1997 Act") neither the word "of' nor the word "from" was used, while in the statutory provisions prior thereto, i.e., the Banking Companies (Recovery of Loans) Ordinance, 1979 ("the 1979 Ordinance"), the word "from" had been applied. His case therefore was that the learned single Judge had properly appreciated the changed statutory language of the 2001 Ordinance. In reply, learned counsel for the appellants contended that section 9(5) of the 2001 Ordinance required the summons to be issued in a specific form, and the summons so issued required the defendant to file his leave to defend application within 30 days "from" the date of service. He submitted that it was a mandatory requirement that the summons be in the prescribed form and thus the day on which the summons was served had to be excluded from the computation of limitation.
4. We heard learned counsel for the parties, examined the record with their assistance, and considered the case-law and statutory provisions relied upon by them. Qureshi Salt and Spice Industries and another v. Muslim Commercial Bank Ltd. 1999 SCM R 2353 was a decision under the 1979 Ordinance. Section 7(2) of the 1979 Ordinance stated that the procedure to be applied was that prescribed under Order XXXVII of the Code of Civil Procedure, and in terms of that procedure, the leave to defend application had to be filed within 10 days "from" the date of service. Thus, in relation to the 1979 Ordinance, there could be no doubt that the day of service of summons was to be excluded while computing the period of limitation. In fact, all that the Supreme Court confirmed in the Qureshi Salt case (supra) was that if the summons was served through more than one mode, then the period of limitation would be reckoned from the earliest day of service. In the case before it, the summons was first served through publication, and the Supreme Court held that limitation was to be computed from the day of publication. This decision therefore does not shed any light on the question before us. Insofar as the decision of this Court in National Bank of Pakistan v. West Pakistan Tank Terminal (Pvt.) Ltd. 2000 CLC 896 is concerned, that was a case under the 1997 Act. Section 10(1) of that Act had simply required that a leave to defend application be filed "within 21 days". In that case, the summons was served through publication in two newspapers, one on 18-9-1999 and the second on 20-9-1999. The learned single Judge gave the defendants the benefit of doubt and computed limitation from the second publication. He concluded that the period of limitation ended on 11-10-1999, whereas the leave to defend application was filed on 16-11- 1999. It will be seen that the application was hopelessly beyond time regardless of whether the date of publication was taken into account or not. However, it is also pertinent to note that the period of limitation, as computed by the learned single Judge himself, excluded the day of publication. It would therefore appear that both under the 1979 Ordinance and the 1997 Act, the day of service of summons (whether by A publication or otherwise) was to be excluded from consideration. The cases referred to by the learned single Judge do not therefore, with respect, support the conclusion that he derived from them.
5. The question of how limitation is to be computed under the 2001 Ordinance has to be examined on the basis of the relevant statutory provisions. Section 10(2) of the 2001 Ordinance provides in material part as follows:-- "The defendant shall file the application for leave to defend within thirty days of the date of first service by any one of the modes laid down in subsection (5) of section 9...."
' Section 9(5), insofar as is presently relevant, is as follows: "On a plaint being presented to the Banking Court, a summons in Form No,4 in Appendix 'B' to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other form as may, from time to time, be prescribed by rules, shall be served on the defendant ...By publication in one English language and one Urdu language daily newspaper, and service duly effected in anyone of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. ...The Banking Court shall ensure that the publication of summons takes place in newspaper with a wide circulation within its territorial limits."
' It is common ground that the summons had to be as per Form No, 4 of Appendix "B" of the C.P.C.
That form, as adapted for use under the 2001 Ordinance, requires the defendant "to obtain leave from the Court within 30 days from the service hereof to appear and defend the suit" (emphasis supplied).
6. In our view, reference should also be made to section 9 of the General Clauses Act, which provides in material part as follows:-- "In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from"...."
' As is clear from the foregoing, whenever the word "from" is used, the first day has to be excluded.
This does not however mean that if the word "from" is not used, the first day has to be included. It is to be noted that there is no requirement under the General Clauses Act that the use of c the word "or would cause the first day to be included. Whether or not the first day is to be included or excluded would therefore depend on the statutory provisions and the context in which they appear.
On a consideration of the 2001 Ordinance, we are of the view that the correct interpretation D of section 10(2) is that the day on which the summons is served is to be excluded. As correctly pointed out by learned counsel for the appellants, the summons must be in a specific form, and that form uses the word "from". The requirement that the summons be in the form specified is E expressly stated in section 9(5). Thus, section 10(2) becomes applicable if and only if, service is effected by a summons in the form prescribed by section 9(5), and in one of the modes F specified in that provision. It would in our view, be most inequitable to serve a summons on the defendant which informs him that he may file his leave to defend application within 30 days "from" service, and then compute the period of limitation on a basis that includes the day of service. A conjoint reading of these provisions therefore leads to the conclusion that the day of service of summons should be H excluded from consideration. Secondly, and more generally, "a court ought not to put such an interpretation upon a statute of limitation by implication and inference as may have a penalizing effect unless the court is forced to do so by irresistible force of the language used"; Makhanla/ Roy Pramanick and others u Pramathanath Basu and others AIR 1953 Cal 50,
52. In our view, this principle can be usefully applied to the present situation. There is nothing expressly stated in section 10(2) that would require the inclusion of the day of service while computing the period of limitation, and inasmuch as such inclusion can have a penalizing effect by I debarring the defendant from appearing in the suit, the preferable interpretation would be that the day of service should be excluded. Unless the relevant statutory language is clear, and admits to only one meaning, provisions relating to limitation should be construed in favour of preserving the rights of parties, whether that be the right of a plaintiff to sue or the right of a defendant to appear in the suit and defend himself. There is nothing in section 10(2) that points in one direction alone.
Accordingly, the proper interpretation of this provision is as noted above.
7. We therefore conclude, with respect, that even under the 2001 Ordinance, the day of service of summons through whichever mode is first effective) is to be excluded from consideration. On that basis, since summons in the present case was served through publication on 27-1-2010, the last day of limitation was 26-2-2010. That day was admittedly a holiday, and the first working day thereafter was 1-3-2010 on which date the leave to defend application was filed. Accordingly, it was within time, and the learned single Judge, with respect, erred materially in coming to the contrary conclusion. The leave to defend application ought therefore to have been heard and decided on its merits. Since this had not been done, the appeal had to be allowed and the matter remanded to the learned single Judge in terms as stated in our short order.
8. The foregoing are the reasons for which we had passed the short order noted above.