MUHAMMAD ALI, J.---This Regular First Appeal is directed against the order dated 31.10.2014 and the judgment and decree dated 13.11.2014, whereby the application of the appellant for leave to appear and defend the suit was dismissed as barred by time and the suit was decreed in favour of the respondent.
2. The facts in brief are that the respondent filed a suit for recovery of Rs,9,55,000/- against the appellant under Order XXXVII, Rules 1 and 2 of Civil Procedure Code, 1908 ("C.P.C."). The learned trial Court simultaneously ordered service of the appellant-defendant through ordinary mode as well as by publication in the newspaper. On account of non-appearance of the appellant after the publication, ex-parte proceedings were initiated against him vide order dated 01.03.2010. The learned trial Court after recording ex parte evidence of the plaintiff decreed the suit vide judgment and decree dated 23.04.2010.
3. The appellant on gaining knowledge about the same filed an application for setting aside ex- parte judgment and decree on 09.07.2011. The application was contested by the respondent. The learned trial Court after hearing the parties, vide order dated 24.04.2014 accepted the application and the ex parte judgment and decree was set-aside. The appellant filed an application for leave to appear and defend the suit on 03.05.2014. The application was dismissed vide order dated 31.10.2014 as barred by time. The learned trial Court after recording evidence of the respondent once again decreed the suit vide judgment and decree dated 13.11.2014, hence the instant appeal.
4. The learned counsel for the appellant submits that the application for leave to appear and defend the suit was not barred by time as the appellant was never served in the suit and the ex- parte order was made after publication in the newspaper; that in terms of Article 159 of the Limitation Act, 1908 ("Act") the appellant filed the application within a period of ten days from the date of setting aside ex-parte judgment and decree which was within time; that the appellant was not given a fair opportunity to defend the case; that the application disclosed triable issues requiring evidence; that the law favours adjudication on merits rather than knocking out a litigant on technical grounds. In support of his arguments, the learned counsel has placed reliance on the case of Aqeel Ahmed v. Muhammad Akram (2006 YLR 320).
5. Conversely, the learned counsel for the respondent submits that the appellant should have moved the application for leave to appear and defend the suit along with his application for setting aside ex-parte judgment and decree and once the period of ten days elapsed from the date of knowledge of the appellant regarding the proceedings, the application was rightly considered as barred by time.
6. I have heard 'the learned counsel for the parties and perused the record.
7. Admittedly, the appellant on 03.05.2014 filed an application for leave to appear and defend the suit which was 9th day of the order of setting aside ex-parte judgment and decree. It is to be examined whether the application was within time or barred by limitation. The perusal of order sheet of the learned trial Court shows that the Court vide order dated 11.02.2010 issued process for service of defendant through ordinary mode and by publication in the newspaper. The notice was published on 19.02.2010 and the appellant on account of his nonappearance on the following date was proceeded against ex-parte on 01.03.2010.
8. The learned trial Court while deciding the application for setting aside ex-parte judgment and decree did not consider publication in the newspaper as due service. In the order dated 24.04.2014 it was observed as under: "No notice or summons is attached with the file showing that the same was delivered to the present appellant or he was served or even he refused to receive that. Although the publication Exh.R3 is attached with the file but in ipso facto, it was not a conclusive proof that the same was delivered and received by the present appellant/ defendant, therefore, contention of the present appellant / defendant is correct that he received no summons at all regarding institution of the suit."
(underlined to provide emphasis)
Admittedly, the appellant was not personally served in the case. The limitation under Article 159 of the Act starts when summons is served on the defendant. On account of non-service .of the appellant, naturally the copy of the plaint was also not delivered to him as required under Rule 3 of Order XXXVII, C.P.C. Hence, in the absence of anything to the contrary, the appellant would be considered to have been served on 24.04.2014 in terms of Article 159 of the Act, the date when the suit revived.
9. In the case of Aqeel Ahmed v. Muhammad Akram (2006 YLR 320) while dealing with a similar situation it was held as under:- "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.MC.A. through its General Secretary Lahore" (PLD 1979 SC 18) and "Muhammad Aslam v.
Additional District Judge, Rawalpindi and others" (1979 SCMR 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."
10. The interim order passed on 24.04.2014 shows that the suit was adjourned after its revival for 15.05.2014, without any reference to the filing of application for leave to appear and defend the suit.
The order dated 24.04.2014 reads as under:- "Vide my detailed order of even recorded separately on the application of defendant for setting aside the ex parte judgment and decree dated 23.4.2010, the impugned judgment and decree has been set-aside and the suit has been restored. Consequently, it be registered. Now to come up on 15.5.2014."
Similarly, in the detailed order of the even date, nothing was mentioned about the application for leave to appear and defend the suit. Now, the limitation of 10 days for filing an application for leave to appear and defend the suit commences when summonses are served as provided in Article 159 of the Act, which reads as follows:-
159. For leave to appear and defend a suit under summary procedure referred to in section 128 (2)(f) or under Or der XXXVII of the Code of Civil Procedure, 1908.Ten Days When the Summons is served.
The defendant, having not been served in the case, filed an application within 10 days of the above mentioned order, therefore, his application, cannot be termed as barred by time While dealing with somewhat similar situation in the case of Habib Bank Limited v. Muskrat Ali Khan (PLD 1987 Karachi 86) it was held as under: "It is noticeable that the said order merely sets aside the exparte decree passed on 16.2.1984. It does neither fixes a day for hearing of the suit as provided under Order IX, Rule 13, C.P.C. nor says any things about leave to the defendant to appear and defend the suit. As a consequence of the said order the defendant will be taken to be not served with the summons. Taking the point to its logical conclusion one may argue that the 10 days period of limitation was to start only after the defendant is shown to be served with the summons. However, the defendant's making the above application, for leave to appear and defend the suit within 10 days of passing the said order can hardly be said to be beyond time as provided under Article 159 of the Limitation Act, 1908."
11. The impugned order, dismissing the application for leave to defend the suit as time barred is not sustainable, consequently the order dated 31.10.2014 and the judgment and decree dated 13.11.2014 are set-aside. The case is remanded to the learned trial Court to decide the application afresh on its merits which shall be deemed to be pending before the learned trial Court. The parties are directed to appear before the learned District Judge, Multan on 12.10.2017, who shall decide the matter either himself or shall entrust the same to any other Court of competent jurisdiction. The learned trial Court is expected to proceed with the matter expeditiously and shall decide the suit within a period of three months from today.
For the foregoing discussion, this appeal is allowed in the above terms.