' SAAD SAOOD JAN, J.-This regular first appeal is from the judgment and decree, dated 2nd July, 1980 passed by Civil Judge 1st Class at Lahore.
2. On 6th December, 1978 the respondent bank filed a suit for the recovery of Rs, 72,365 against the appellant primarily on the basis of demand promissory note. The suit was instituted under Order XXXV II of. The Code of Civil Procedure. The appellant could not be served in the ordinary way.
Consequently, under the directions of the Court a proclamation was published in the daily Maghrabi Pakistan for 17th October, 1979. The proclamation did not mention that the suit had been instituted under Order XXXVII ibid or that the defendant was required to obtain leave to appear and defend within ten days. However that may be, on the date mentioned in the proclamation the appellant did appear in Court through counsel. The Court directed the respondent bank to give a copy of the plaint to the appellant and fixed 12th November, 1979 for filing of the written statement.
On the last mentioned date the learned Presiding Judge was on leave and the proceedings were adjourned by the reader to 10th December, 1979. On this date the Court adjourned the case to 11th December, 1979 for further proceedings. On 11th December, 1979 counsel for the respondent pointed out that the appellant had not so far filed any application for leave to appear and defend the suit.
Upon this the Court adjourned the proceedings to 6th January, 1980 to consider the plea taken by counsel for the respondent. On 13th December, 1979 the appellant moved the Court for leave to appear and defend the suit. This application was rejected by the learned Court on the ground that it had been made belatedly. Later, the suit of the respondent was decreed.
3. Under rule 2 of Order XXXVII of the Code of Civil Procedure the defendant is to be served with summons in form No, 4 of appendix 'B'. The form has been so devised that it gives notice to the defendant that in case he wishes to defend the suit he must obtain leave from the Court within ten days after service of the summons. In this case admittedly no summons in form No, 4 was served upon the appellant. The proclamation which appeared in the newspaper did not mention that the suit had been filed under Order XXXVII or that the appellant was required to obtain leave from the Court within ten days. Consequently, when the appellant appeared before the Court on 17th October, 1979 he could not know that the suit had been instituted under Order XXXVII or that in order to defend the suit he was required to obtain leave from the Court. Apart from that, the direction given by the Court that he should file written statement by the next date would have further misled him. It may also be noticed that the appellant did not have a copy of the plaint. The Court therefore ordered that a copy of the plaint be given to the appellant. Apparently this direction was not complied with till the December, 1979 for the assertion made by the appellant in this regard was not challenged by the respondent before the trial Court. In the circumstances we do not think that the learned trial Judge was justified in applying the penal provisions of rule 2 (2) of Order XXXVII of the Code of Civil Procedure and thus rejecting the application of the appellant on the ground of delay. On the other hand we think that the starting point of limitation for making the application should be taken as 1 Rh December, 1979 when the objection with regard to the non- making of the application for leave to appear and defend was taken by the respondent. As the said application was made on 13th December, 1979 it should be treated to have been made in time.
Accordingly we set aside the judgment and decree of the learned trial Judge and remand the suit to the Banking Judge, who was now exclusive jurisdiction in the matter, to dispose of the application on merits. There will be no order as to costs in this appeal and the appellant shall be entitled to the refund of the court-fee.