Through this Civil Revision, petitioner has called in question orders dated 18.02.2016 and 23.02.2016 passed by Addl. District Judge, Lahore whereby two separate applications first under Order IX Rule 13 C.P.C. and the second under Order XXXVII Rule 4 C.P.C. filed by the petitioner for setting aside the ex-parte judgment & decree dated 29.09.2015 passed by Addl. District Judge, Lahore against the petitioner in recove ry suit filed under Order 37 CPC by the respondent, have been dismissed.
2. It is contended by learned counsel for the petitioner that main ground that weigh ed with the Addl. District Judge to dismiss the application filed by the petitioner under Order XXXVII Rule 4 C.P.C. was that an earlier application under Order IX rule 13 C.P.C. filed by the petitioner on the same subject matter had been dismissed vide order dated 18.02.2016 and fresh application was not maintainable. It is contended that even the earlier application was dismissed on wrong premises by the Court without taking into consideration that it was not mandatory that the application for setting aside ex-parte decree was to be accompanied by application for leave to defend, however , states that as the earlier application under Order IX Rule 13 C.P.C. was dismissed being not maintainable on the objection raised by the respondent that said application had not been filed under the relevant provision of law, therefore, there was no hindrance in the way of petitioner to file another applicat ion on the same subject matter under Rule 4 of Order XXXVII C.P.C. which was the relevant provision of law and his subsequent application could not have been dismissed on the ground of dismissal of his earlier application, which was not decided on merits.
Petitioner 's counsel further states that as both the dismissal orders are under challenge, this Court may by allowing either or both of the said applications, set aside the ex-parte decree in view of the fact that the petitioner had never been served with summons before the said decree was passed and matter should be decided on merits instead of technicalities for advancing cause of justice.
3. On the other hand, learned counsel for the respondent has defended the impugned order by controverting the grounds raised by the petitioner . It is further contended by learned counsel for the respondent that as the earlier application on the same subject filed by petitioner was not accompanied by application for leave to defend, therefore, not only earlier application was rightly dismissed but also subsequent application was not maintainable and has been rightly dismissed.
4. I have gone through the record of the case with able assistance of counsel for the parties and have noted that respondent filed summary suit for recover y of Rs. 850,000/- against present petitioner which was decreed ex-parte on 29.09.2015.
Subsequently , on 25.01.2016 the present petitioner attained knowledge of the suit having been decreed when he was arrested in execution proceedings thereof and filed an application under Order IX Rule 13 C.P.C. for setting aside the said decree within 2 days on 27.01.2016, which application was dismissed on 18.02.2016 on the ground of being not maintainable as having not been accompanied by application for leave to defend after objections were raised by learned counsel for the respondent that application under Order IX Rule 13 C.P.C. was not maintainable as there was specific provision under Order XXXVII Rule 4 C.P.C. for challenging such decree passed in a summary suit. Operative part of order dated 18.02.2016 is reproduced below: "4. Perusal of record shows that the instant application for setting aside ex-parte decree passed by this court under Order 37 Rule 1 & 2 CPC is not acco mpanied by an application for leave to defend the suit, which was a mandatory provision under Order 37 Rule 4 CPC. The petitioner was bound to file application for leave to appear and defend the suit coupled with affidavit alongwith application for setting aside the ex-parte decree and where application for leave to defend was not filed with application for setting aside the ex-parte decree, the same had to be filed within 10 days of the service of notice or the knowledge as per requirement of Article 159 of the Limitation Act, 1908. In this regard guidance has been obtained from the case law cited in "Mirza Irfan Vs. Muhammad Yaqoob" ( 2011 MLD 1024 ) wherein it is held by his lordship that: "O. XXXVII, Rr.2,3&4 - Limitation Act (IX of 1908), Art, 159- Suit for recovery of amount upon bill of exchange etc. - Application to defend the suit without affidavit - Effect - Trial Court passed ex-parte decree - Defendant's application for setting aside the ex-parte decree was allowed - Defendant, after lapse of 24 days from submission of application for setting aside the ex-parte decree, filed application for leave to appear and defend the suit which was allowed by the Trial Court - Plaintiff contended that the application for setting aside the ex-parte decree should have been accompanied by the applicat ion for leave to appear and defend the suit and that the application for leave to appear and defend was not accompanied by affidavit - Validity - Trial Court illegally entertained the application for leave to appear and defend the suit - Defendant had the knowledge of the institution of the suit when he made application for setting aside the ex parte decree - Where application for leave to defend was not filed with application for setting aside the ex-parte decree, the same had to be filed within 10 days of the service of notice or the knowledge as per requirement of Art. 159 of the Limitation Act, 1908 - Application for leave to defend was barred by time-Affidavit was the basic document under O. XXXVII, R.3, C.P.C. which should disclose such facts as would make it incumbent upon plaintiff to prove the consideration - Application seeking leave to appear and defend the suit without affidavit could not be entertained Impugned order were set aside - Allegations made in the plaint were held to have been admitted by the defendant on account of his failure to obtain the required leave - Plaintiff was entitled to a decree in circumstances".
5. In view of above discussion, circumstances and while relying upon the referred case law, the petitioner alongwith instant application for setting aside ex-pa rte decree did not file any application for leave to defend the suit coupled with the affidavit, which was mandatory provision of Order 37 Rule 4 CPC, resultantly the instant application is not maintainable and same is hereby dismiss ed. No order as to costs. Allah Rakha, Ahlmad is directed to consign file in the record room after its due completion."
5. Instead of challenging the same before any higher forum, petitioner again filed another application under Order XXXVII rule 4 C.P.C. which was dismissed vide order dated 23.02.2016 as not maintainable, the operative part of which is reproduced as under: "The petitioner filed the instant application under Order 37 Rule 4 CPC for setting aside of ex-parte judgment and decree dated 29.09.2015, alongwith application for leave to defend and appear coupled with application under section 5 of the Limitation Act, 1908 for condonation of delay in filing application for leave to defend and appear the suit, with the contention that the respondent/plaintiff filed a suit for recovery of Rs.8,50,000/- on the basis of forged and fabricated promissory note by concealing and twisting the actual facts and the plaintiff was succeeded to get an ex-parte decree dated 29.09.2015, which is liable to be set-aside on the grounds mentioned in the instant application.
2. The petitioner in the instant application also contended that previously another application against the same ex- parte judgment and decree under Order 9 Rule 13 CPC without filing leave to defend the suit was filed, which was dismissed by this court vide order dated 18.02.2016. That the first application was not in accordance with law, hence the instant application.
3. Preliminary arguments heard and record perused.
4. Perusal of file reveals that against the same ex-parte judgment and decree previously the petitioner filed an application for setting aside the ex-parte judgment and decree which has already been dismissed by this court vide order dated 18.02.2016. Perusal of order dated 18.02.2016 reveals that similar kind of application has been filed by the petitioner now by referring the provision of Order 37 Rule 4 CPC but the earlier petition was dismissed by this court on the grounds that the same is also not accompanied by an application for leave to defend the suit coupled with affidavit. The said order has not been assailed by the present petitioner rather he preferred to file another application on the same grounds regarding which the decision has already been passed by this court. Resultantly , the instant application is not maintainable and same is hereby dismissed. Allah Rakha, Ahlmad is directed to annex the petition alongwith main case file and consign the same in the record room after its due completion."
6. Both the afore-referred orders are under challenge before this Court through this revision petition filed by the petitioner whose counsel has contended that the said orders were not in accordance with law and were based on erroneous exercise of jurisdiction, hence, are liable to be set aside. It is the case of the petitioner that the second application was filed under impression that application under Order IX Rule 13 C.P.C. was dismissed as not maintainable being based on general provision of law in view of the fact that specific provision under Order XXXVII C.P.C. for the same purpose was available under Rule 4 thereof. The second application under Order XXXVII Rule 4 was filed on 22.02.2016 i.e. four days after dismissal of earlier application alongwith application for leave to defend, however , said application was also dismissed on 23.02.2016 as not maintainable.
7. The record shows that first application was dismissed as not maintainable as the same was not accompanied by an application for leave to defend. For proper appreciation of the dispute under discussion in this case, the law relating to filing of application for leave to defend along with application for setting aside the ex-parte decree and the judgments on the said subject are reproduced below: "Order XXXVII(4) Power to set aside decree:-- After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court think fit."
8. The application for leave to defend is to be filed within ten days of service of summons as provided in Article 159 of the Schedule of Limitation Act, reproduced below:
159. For leave to appear and defend a suit under summary procedure referred to in section 128 (2)(f) or under Order XXXVII of the Code of Civil Procedure.Ten daysWhen the summons is served.
9. For filing application for leave to appea r and defend the suit limitation of 10 days is provided in Article 159 of the Schedule to the Limitation Act from the date of service of summons but the claim of the petitioner is that summons were never served upon him. The question that arises is that at what stage application for leave to defend is to be filed when suit under Order XXXVII C.P.C. is decreed ex-parte and application for setting aside of the said decree is filed on the ground that the Applicant had not been served with summons before said decree was passed.
10. This Court while dealing with the ques tion of limitation in filing application for leave to defend, after acceptance of application for setting aside ex-parte decree in case titled "Aqeel Ahmed Vs. Muhammad Akram" (2006 YLR 320 [Lahore]) 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.M.C.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 settin g 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 and while following the judgment in the case "Habib Bank Limited v. Mussarat Ali Khan" (PLD 1987 Kar. 86) we are inclined to hold that application filed by the appellant on 15-9-2004 was well within time from 10-9-2004 and the findings of the learned trial Court holding that appellant was obliged to file such application within a period of ten days from acquiring knowledge since filing of application for setting aside the ex parte decree on 3-4-2004 (In fact 3-7-2004), is not based on legal premises. The appellant rightly filed application on 15-9-2004 within the period of ten days from 10-9-2004 when the file of original suit was put up before the learned trial Court and regular proceedings in the suit commenced after setting aside the ex parte decree. Therefore, there is no force either in the contention of learned counsel for the respondent nor the view taken by the learned trial Court is supported by law.
We are further fortified in our view by the fact that under Article 159 of Limitation Act the timeframe fixed for moving such application is ten days from the date of service and since at no stage of the suit either the appellant was served or he was supplied copy of the plaint as ordained by Order XXXVII, rule 3, C.P.C., hence in the absence of any other evidence we are inclined to hold that appellant would be deemed to have been served in the suit for the first time on 10-9-2004 and from that date since application was filed on 15-9-2004 was within ten days as required by Article 159 of the Limitation Act."
(emphasis supplied)
11. In the case titled "Zulfiqar Ali Vs. Muhammad Iqbal" (2018 MLD 1547 [Lahore]) this Court while relying upon the judgment in Aqeel Ahmad case supra held that the limitation to file application for leave to defend was to commence from the date when ex-parte decree was set aside and the application filed within ten days therefrom could not be dismissed as barred by time. The relevant portion is reproduced as under: "Admittedly , the appellant was not person ally 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........
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 ."
12. In the case titled "Abdul Karim Vs. Nazir Ahmad" (PLD 1998 Lahore 163) this Court while considering the limitation for filing application for leave to defend after ex-parte decree was set aside has observed as under:
3. There are ex parte proceedings against the respondent. Without going into the above contentions of the learned counsel for the appellant, I am inclined to accept this appeal on a more technical and legal ground. No doubt, the appellant-defendant was served personally on 24-5- 1984 for the date 19-6-1984 and under Article 159 of the Limitation Act, the period prescribed for applying for leave to appear and defend the suit under Order XXXVII of the Code of Civil Procedure, 1908, is ten days from the service of summons, but the service is said to have been effected only if it effectively brings the claim to the knowledge of the defendant. Needless to mention that in a suit under Order XXXVII, C.P.C. prescribed summons with the copy of the plaint should be issued, otherwise, defendant will not be able to know the nature of the suit and claim involved in it and may not move the machinery expeditiously for obtaining leave to appear and defend the suit. In fact, if the summons are not accompanied with the plaint there cannot be a proper service on the defendant and, therefore, the question of computing the period of limitation under Article 159 does not arise. The case of Ali Akbar v. Gulzar Ali Shah PLD 1984 Karachi 252 may be referred in this regard.
13. Similarly in case titled "Habib Bank Limited. Vs Mussarat Ali Khan" (PLD 1987 Karachi 86) application for leave to defend filed within ten days of setting aside of ex-parte judgment & decre e was treated to be within time and was directed to be decided on its own merits in accordance with law . The relevant portion is reproduced below: "It is noticeable that the said order merely sets aside the ex-parte decree passed on 16.2.1984. It does neither fix 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."
14. The position that emerges from the afore referred judgments is that where the defendant was not served with summons personally before the ex-parte judgment & decree was passed in a summary suit under Order XXXVII C.P.C., then the limitation for filing application for leave to defend is to start from the date when ex-parte judgment & decree was set aside, this aspect of the matter has not been given due consideration by the learned trial Court while dismissing the first application filed by the petitioner under Order IX Rule 13 C.P.C. for setting aside of ex- parte decree as the case of the petitioner was that he had not been served with summons rather attained knowledge on his arrest in execution of afore-referred decree on 25.01.2016, there fore, the impugned order dated 18.02.2016 whereby first application was dismissed on technical grounds does not appear to be based on proper exercise of jurisdiction by the trial Court. The learned trial court while passing the impugned order has placed its' reliance on case of Mirza Irfan Vs. Muhammad Yaqoob (2011 MLD 1024 ) decided by this Court. However , the said case is distinguishable on facts as in the said case the question of non-service of summons before passing ex- parte decree was not under consideration for determining the question of limitation for filing application for leave to appear and defend.
15. The other aspect of the matter is that on the dismissal of first applicatio n on technical grounds as not maintainable vide order dated 18.02.2016, although, two options were available to the petitioner , first to challenge the order dated 18.02.2016 before the higher forum i.e. High Court and the second to file another properly drafted application which course was permissible according to principles laid down in the judgment reported as Parveen Akhtar versus Sania Feroze (2004 CLC 351 Lahore) wherein it is laid down that where first application is dismissed on technical grounds or defects without determining the merits of the case and rights of the parties, filing of second application on the same subject is permissible and same may not be hit by principle of res judicata . The first course of action was not adopted by the petitioner under the impression that as the said application was dismissed as not maintainable on the objection raised by the learned counsel for the respondent that application under Order IX Rule 13 C.P.C. was not maintainable and that specific provision of law provided him with remedy to get the said decree set aside subject to the same being accompanied by an application for grant of leave to defend, hence, it is claimed that the petitioner choose second option by filing second application, which under the circumstances of the present case does not appear to be contumacious and mala-fide rather appears to have been filed under bona-fide belief that earlier application under Order IX Rule 13 C.P.C. was not maintainable at all.
Therefore, instead of dismissing the seco nd application under Order XXXVII rule 4 C.P.C., learned Court should have considered the contents of same on its own merits in accordance with law and passed speaking order on the same. Consequently , it appears that having failed to adopt the said course of action, learned trial court has not properly exercised the jurisdiction vested in it, which order on the said ground is not sustainable.
16. Needless to mention that limitation is a mixed question of law and fact and law requires the same to be determined on case to case basis. Furthermore, a distinction may be drawn in cases where ex-parte decree is passed after service of summons and where it is passed due to non-service of summons as in the former case, the person who seeks setting aside of the decree had knowledge that suit for recovery had been filed against him and was pending adjudication before it was decreed ex-parte, whereas in the latter case when he attains knowledge of the ex-parte decree, the suit is not pending and he could not be treated as having knowledge of pendency of suit before it was decreed ex-parte. In both the afore-referred situation question of limitation has to be treated on case to case basis keeping in view the facts of that particular case. However , the said aspect of the matter is not being further commented upon in detail at this stage to avoid complications that may arise in some cases as the said aspect of the matter has not been argued upon by the parties in the present case and the same has been kept open to be decided in some other case in future.
17. In view of the above discussion, this civil revision is allowed with the result that both the orders dated 18.02.2016 and 23.02.2016, whereby the applications filed by the petitioner to set aside the ex-parte decree had been dismissed, are set aside and the matter is remanded to the trial court where both the said applications shall be deemed to be pending and shall be consolidated as one application for decision of the same after receiving its reply from the other party , learned trial court shall decide the same afresh after providing opportunity of hearing to the parties on its own merits in accordance with law .