' MEHMOOD MAQBOOL BAJWA, J.---Legality and validity of order dated 4-3-2009 has been called in question at the instance of petitioner cited as defendant in the suit for recovery under Order XXXVII of The Code of Civil Procedure, 1908, whereby an application made at the instance of petitioner for leave to appear and defend the suit was dismissed by the learned trial court vide order impugned maintaining that the petition which was required to be made within ten days from the date of service was not made within statutory period as envisaged by Article 159 of The Limitation Act.
2. Heard.
' Learned counsel for the petitioner while making reference to the certified copy of the summons maintained that though the process was issued in the name of present petitioner being defendant on the prescribed summons meant for the suits to be instituted under Order XXXVII of The Code of Civil Procedure, 1908, but nevertheless perusal of the report of Process-Server suggests that the petitioner being defendant was not served in person. Submitted that service of present petitioner was procured statedly through his nephew who cannot be considered as "Adult male member" of his family within the meaning of Order V, Rule 15 of The Code of Civil Procedure, 1908. Further maintained that keeping in view the report of Process-Server dated 24-3-2008 it becomes crystal clear that copy of the plaint was not delivered to the present petitioner and as such the period of ten days cannot be reckoned from the date of service of summons. Seeking help from .The dictum laid down in "ADBUL KARIM V. NAZIR AHMAD" (PLD 1998 Lahore 163) and "KHURSHID ALAM V. AL-KHAIR GADOON LIMITED through Legal Director" (2003 YLR 2583) it was maintained that law favours adjudication on merits and as such the technicalities are required to be depreciated.
' On the other hand learned counsel for the respondent while making reference to the copy of the summons issued in the name of present petitioner maintained that there is specific endorsement contained on the face of the summons that copy of the plaint is appended with the summons and as such it shall be presumed that while procuring the service of present petitioner being defendant copy of the plaint was delivered. Making reference to para (2) of the application for leave to appear and defend the suit, it was maintained that the ground agitated at the instance of petitioner before this Court that the petitioner was not served in person was not agitated at his instance in the said application and as such the same cannot be validly pleaded at the instance of present petitioner before. This Court.
3. Without going into the respective contentions of adversaries regarding personal service of the petitioner or through any member of the family of the petitioner, fate of the revision petition can be decided on the other ground agitated at the instance of the petitioner, contending that copy of the plaint as per report of Process Server was not delivered to the petitioner. Though it was argued at the instance of respondent that there is an endorsement that copy of the plaint is appended with the summons but nevertheless report of the Process-Server is totally silent in this regard. Mere endorsement on the leaf of summons in the absence of report of Process Server regarding delivery of copy of plaint as well by itself would not be sufficient to presume that copy of plaint was ever delivered to the person whose service was procured. In view of the report of the Process Server nothing can be said with certainty that copy of the plaint was ever delivered and as such undeniably period of ten days shall not be reckoned from the date of service as held in "ADBUL KARIM and "KHURSHID ALAM (Supra). Similar proposition was moot point in "ALI AKBAR V. GULZAR ALI SHAH" (PLD 1984 Karachi 252), "TAJ ALI KHAN V. HAJI MUHAMMAD ALI" (2003 YLR 1130) and "MUHAMMAD RIAZ V. SYED IBRAR SHAH" (2007 MLD 1613) in which the defendant was non-suited in the application for leave to appear and defend the suit due to limitation and it was held that in order to attract. Article 159 of the First Schedule of The Limitation Act, 1908 suggesting the period of 10 days, the service of the defendant must be procured on the prescribed summons with copy of plaint.
' If the copy of the plaint is not delivered to the defendant he would be unable to know the nature of suit, having no application of Article 159 of The Limitation Act.
' In view of the above state of law and attending circumstances, period of 10 days for submission of application for leave to appear and defend the suit could not have been validly pleaded in order to non-suit present petitioner.
5. Perusal of the order impugned suggests that the learned trial court dismissed the application of the petitioner on the question of limitation and did not deal with the respective contentions of the adversaries on merits. In view of the matter, while accepting the revision petition order impugned is hereby set aside and the application for leave to appear and defend the suit shall be deemed to be pending before the learned trial court, who shall decide the same keeping in view of the respective contentions of the adversaries on merits.