ABID HUSSAIN CHA TTHA, J: This Civil Revision is directed against the Order dated 30.04.2014 passed by the Additional District Judge, Liaquatpur , District Rahim Yar Khan, whereby , an application of the Petitioner dated 31.07.2013 under Section 12(2) of the Code of Civil Procedure, 1908 (the "CPC ") seeking to set aside the ex-parte Judgment & Decree dated 23.05.2013 passed in favour of the Respondent regarding his suit for recovery of Rs.
2,515,000/- based on a cheque under Order XXXVII, Rules 1 & 2 of the CPC was dismissed.
2. Learned counsel of the Petitioner contended that the Petitioner was confined in prison when the Respondent instituted the suit and obtained ex-parte Judgment & Decree from the Trial Court against him. The fact of imprisonment was in the knowledge of the Respondent but he deliberately withheld this information. As such, by concealment of this fact, a fake report regarding service of the Petitioner was procured by the Respondent.
Consequently , he was proceeded against ex-parte on 21-02-2013 which eventually culminated into the impugned ex-parte Judgment and Decree. He placed reliance on case titled, "Messrs Walia Steel Industries PLC v.
Messrs Saga Shipping and Trading Corporation Ltd. and others" (PLD 2019 Sindh 22) to assert that inadvertent mentioning of wrong provision of law is condonable by the Court; that the application for setting aside the ex-parte Judgment & Decree was within time from the date of knowledge; and that the ex-parte Judgment & Decree was obtained behind the back of the Petitioner without his due service. Accordingly , it was pleaded that since valuable rights of the Petitioner are involved in the case, therefore, he is entitled to defend the suit on merits.
3. Learned counsels for the Responden t vociferously argued in support of the impugned Order and ex-parte Judgment & Decree to establish that the same have been rightly passed by the Trial Court and the instant Civil Revision merits to be dismissed. It was contended that the Petitioner filed the Application under Section 12(2) of the CPC for setting aside ex-parte Judgment and Decree, whereas, the application, if any, was required to be filed under Rule 4 of Order XXXVII of the CPC. Further , the application being not accompanied with an application for leave to defend the suit was in blatant violation of the mandatory procedure stipulated under the provisions of Order XXXVII of the CPC. Moreover , the application filed after 68 days from the passing of the ex-parte Judgment & Decree was barred by time. Hence, impugned order was unexceptional and in consonance with law. In support of the aforesaid contentions, reliance was placed on cases titled "Gul Baz Khan v. Muhammad Kamran" (2021 CLC 538 Lahore); "Muhammad Aslam v. Muhammad Tahir Hamid" (2013 C.L.R. 1548 Multan); and "Anjum Iftikhar Qureshi v . Kamran Farooqi" (2013 AC 218).
4. Arguments heard. Record perused.
5. It is established on record that the Respondent registered FIR No. 598 / 2012 on 08.10.2012 against the Petitioner under Section 489-F of the Pakistan Penal Code, 1860 at Police Station Shedani, Tehsil Liaquatpur , District Rahim Yar Khan. Resultantly , the Petitioner was arrested and remained confined in prison from 18.12.2012 to 01.04.2013. During his confinement period, the Respondent filed the suit for recovery on 10.01.2013 against the Petitioner without mentioning address of the prison. Despite knowledge, the Respondent with mala fide intention did not mention address of prison where the Petitioner was detained. As such, by concealment of address, the Petitioner was not personally served. Order Sheet of the Trial Court depicts that suit was filed on 10.01.2013 when notice to the Petitioner through Register ed A.D. and newspaper proclamation was ordered for 21.01.2013. On account of failure to deposit process expenses, the order was repeated for 04.02.2013. The Presiding Officer was on leave and the suit was fixed for 21.02.2013. On this date, the Petitioner was proceeded against ex-parte on the basis of substituted service. There is no mention in the Order Sheet regarding personal service of the Petitioner .
Consequently , ex-parte Judgment and Decree dated 23.05.2013 was pronounced against him.
6. It is noted that law is well-settled that mere quoting of wrong provision of law is not a hurdle to decide a lis if on the basis of the contents of the applica tion and the relief sought, a party is entitled for the same. All rules of procedure are meant to advance the cause of justice. If the Court is vested with the jurisdiction to hear and decide the lis, it must not hesitate to decide the matter on merits if the occasion so warrants. Hence, the Courts have liberally resorted to the doctrine of conversion? to treat one kind of proceedings into another or condone misdescription in the title of the proceedings or wrong mentioning of a provision of law with the objective to dispense substantive justice. Therefore, the application of the Petitioner under Section 12(2) of the CPC is converted into an application under Rule 4 of Order XXXVII of the CPC. Reliance is placed on cases titled "Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd." (PLD 1993 SC 109); "Margrete William v.
Abdul Hamid Mian" (1994 SCMR 1555 ); "Rauf B. Kadri v. State Bank of Pakistan and another" (PLD 2002 SC 1 111); and W alia Steel Industries PLC case (supra).
7. From the bare and plain reading of the provisions contained in Order XXXVII of the CPC, it is explicitly and manifestly evident that a special summary dispensation is contemplated for the recovery of money in cases based on negotiable instruments by requiring the defendant to seek leave to appear and defend the suit from the Court.
The rationale is simple and straight forward. Since the claim is based on financial documents to which presumption of truth is attached, the defendant is called upon to justify ordinary trial on the basis of his claimed defense.
However , Rule 2 stipulates that in order to avail the benefit of the Order XXXVII, the plaintif f shall file the suit by presenting the plaint in the form prescribed and the summons shall be in Form No. 4 of Appendix B or in such other form as may be prescribed from time to time. Form 4 mandates that the copy of the plaint is annexed with the notice calling upon the defendant to appear and defend the suit by obtaining leave within 10 days from the service of such notice. It further stipulates that leave to defend may be obtained on an application to the Court supported by an affidavit or declaration showing that there is defense to the suit on the merits or it is otherwise reasonable to allow the defendant to appear in the suit. Article 159 of the Limitation Act, 1908 stipulates a period of ten days from the date of service of summons to file an application for leave to defend under Order XXXVII of the CPC. Thus, when the prerequisites as aforesaid are complied, the defendant shall not appear or defend the suit unless he first obtains leave, failing which the allegations in the plaint are deemed admitted entitling the plaintif f to seek a decree.
The stringent requirements operating against the defendant cast a heavy onus upon the plaintif f with respect to service of the defendant. Special and due care is, therefore, absolutely essential regarding service of the plaintif f given the summary procedure and stringent time frame of 10 days to file an application for leave to defend the suit.
Conversely , it follows that when the mandatory requirements regarding service of the plaintif f are violated, the defendant cannot be burdened with the duty to file application for leave to defend within ten days.
8. There is no cavil to the proposition that Rule 4 of Order XXXVII of the CPC implies that an application for setting aside an ex-parte Judgment and Decree should be accompanied with an application for leave to defend where the summons in the manner stated as aforesaid are duly served upon the defendant. In other words, the Rule is attracted when it can be shown that the defendant was duly served through summons in Form 4 of Appendix B along with a copy of the plaint. In the instant case, it was established that the Petitioner was not served at all. No summons as contemplated are available on record to demonstrate that the special procedure regarding service of the Petitioner was complied with to trigger the special mechanism regarding defense of the suit as stipulated in Order XXXVII of the CPC. Hence, it is ipso facto evident that the Petitioner was not provided with a copy of the plaint to prepare his defense and file leave to appear and defend the suit. Rather , the Respondent intentionally obstructed due service upon the Petitioner through non-disclosure of his address in prison. As such, the Petitioner was precluded to raise a proper defense due to non-supply of copy of the plaint and accordingly , was well within his legal right to file the application for setting aside the ex-parte Judgment and Decree without an accompanying application for leave to defend. Reliance is placed on cases titled "Muslim Commercial Bank Ltd. v. Altaf Hussain and 3 others" (1990 MLD 1258 Karachi); "Habib Bank Limited v. Mussarat Ali Khan" (PLD 1987 Karachi 86); "Muhammad Latif v. Muhammad Abid" (2005 CLC 1432 Lahore); "Aqeel Ahmed v. Muhammad Akram" ( 2006 YLR 320 Lahore); and "Zulfiqar Ali v. Muhammad Iqbal" ( 2018 MLD 1547 Lahore).
9. Importantly , Rule 4 of Order XXXVII of the CPC does not specify a period of limitation to file an application for setting aside an ex-parte Judgment & Decree and bestows a wide discretion to the Trial Court to deal with peculiar facts and circumstances of each case by employing the test of special circumstances? to meet the ends of justice.
Therefore, residuary provision contained in Article 181 of the Limitation Act, 1908 prescribing a period of limitation of three years from the date of knowledg e is attracted to compute the period of limitation regarding an application under Rule 4 of Order XXXVII of the CPC seeking to set aside the Judgment and Decree. Article 164 of the Limitation Act, 1908 as argued by the learned counsel for the Respondent is not applicable unless it can be shown that Judgment and Decree was passed after the suit had become an ordinary suit after the special procedure encapsulated in Order XXXVII of the CPC had been exhausted. The Petitioner specifically stated that he acquired knowledge 2 days prior to the filing of the application which fact was not controverted from record. Even otherwise, the application filed after 68 days of the passing of the ex parte Judgment and Decree was within time and not barred by limitation. Reliance is placed on cases titled "Tariq Jamil Bangash and another v. Attaullah Khan Khattak" (2015 MLD 343 Peshawar); "Binyameen Khalil v. Riaz Ahmed Rahi" (2014 CLC 105 Lahore); "Mst.
Tahira Taj v. Hakim Shah" (2011 CLC 950 Lahore); "Muhammad Ishaque Khan v. Naveed Ahmed" (2004 CLC 1640 Lahore); "Naseer Ahmad v. Muhammad Mushtaq" (2006 MLD 1936 Lahore); and "Tahir A. Khan v.
Messrs United Air T ravels Ltd. and others" ( 2004 YLR 416 Karachi).
10. The cases relied upon by the Respo ndent are distinguished from the facts and circumstances of this case in terms of personal service of the Petitioner(s). In Gul Baz Khan case (supra), the Petitioner therein was personally served and he joined the proceedings of the suit against him by filing applicatio n for leave to defend but later disassociated him from the proceedings of the case which led to the passing of the ex-parte Judgment and Decree against him. Similarly , in Muhammad Aslam case (supra), it was established that the Petitioner therein was served in person and no special circumstances were cited by him warranting interference. In Anjum Iftikhar Qureshi case (supra), the Court concluded that the Petitioner therein was sufficiently served through his brother and notice was also sent to Superintendent Jail as well as in execution proceedings regard ing his attached property but notwithstanding the same, the application was filed beyond the period of limitation without any plausible special circumstances to condone delay . Hence, it is apparent that the facts and circumstances of the above referred cases relied upon by the Respondent are not attracted to the peculiar facts and special circumstances of the instant case where due service of the Petitioner was prevented through non-disclosure of fact of his confinement.
Therefore, this Court is of the opinion that valuable rights of the parties are attached to the lis which should be decided on merits rather than technicalities keeping in view the special circumstances of this case.
11. Before parting with this Judgment, it is noted that at the time of filing of this Petition on 21.05.2014, certain objections were raised by the office which were taken up as an objection case by this Court on 30.05.2014. It was ordered that the objections would be dealt with afterwards with direction to the office to number this Petition and put up before the Court for hearing. The significant objections were that the Civil Revision was barred by time by 272 days; Civil Revision is not competent; and Court fee is insuf ficient to the extent of Rs. 15,000/-. Careful perusal of the objections reveals that the same were not raised with respect to impugned Order dated 30.04.2014 passed by the Trial Court refusing to set aside the ex-parte Judgment and Decree dated 23.05.2013 but were raised regarding the said ex-parte Judgment and Decree as the latter was also mentioned in the prayer clause as ancillary or consequential relief. As such, the objections were erroneously raised since the principal challenge was to the impugned order of refusal to set aside ex-parte Judgment and Decree. Thus, the Civil Revision filed on 21.05.2014 against the impugned order dated 30.04.2 014 was within time and not barred by limitation. Further , order of refusal to set aside ex-parte Judgment and Decree passed under Order XXXVII Rule 4 of the CPC is not an appealable order in terms of Section 104 read with the provisions of Order XLIII of the CPC. Hence, Civil Revision was competent. Even otherwise, once the Petition was numbered as a Civil Revision, the objection regarding competency of Civil Revision lost its relevance. Reliance is placed on case of Tariq Jamil Bangash (supra). Finally , Article 13-A of Schedule 1 of the Court Fees Act, 1870 prescribes court fee of Rs. 15/- where the application is for the revision of an order and the amount or value of the subject-matter is two thousand rupees or more. The prescribed fee was affixed on the instant Civil Revision at the time of filing. Acco rdingly , all objections raised by office were unfounded and consequently , overruled.
12. In view of the above discussion, this Civil Revision is accepted and the impug ned Order dated 30.04.2014 as well as ex-parte Judgment & Decree dated 23.05.2013 and ex-parte order dated 21.02.2013 are set aside.
Consequently , the suit of the Respondent shall be deemed pending and the parties are directed to appear before the Trial Court on 18.01.2022. The Petitioner shall be supplied with a copy of the plaint, whereafter , he shall file an application for leave to defend as ordained by law and the Trial Court shall proceed further in the suit in accordance with law .