1. ' Only material question arising for determination in the first appeal was whether the petition for leave to appear and defend the money suit filed in summary jurisdiction under Order XXXVII Civil P.C. Was barred by limitation as held by learned Judge below and if so, there was sufficient cause to condone the delay.
2. ' Facts, though, are brief and simple but the legal point raised by them is a little intricate and complex one. On the basis of a promissory note dated 24-3-1985, plaintiff sued the defendant, in summary jurisdiction, for recovery of Rs,25,000 by instituting a civil suit under the provisions of Order XXXVII Civil P.C. In the Court of learned District Judge, Lahore, on 9-3-1988. Suit was entrusted by him to learned Additional District Judge for its trial and decision. On 10-3-1988, suit was registered in the trial Court and on the same day, summons in the prescribed form were issued to the defendant for his appearance in Court on 11-4-1988. Simultaneously, a copy of summons by registered post acknowledgement due was also ordered to be issued to the defendant for the afore noticed date of hearing. On the adjourned hearing, the trial Court marked the parties present and noted that since service was effected upon the defendant on 18-3-1988 but no application for leave to appear and defend was filed within the period of limitation prescribed for it, it adjourned the suit for evidence on 27-4-1988. On this date of hearing, it was noted, that application for leave to appear and defend dated 28-3-1988 was present on record and for its consideration, case was further adjourned to 9-5-1988. Thereupon, suit suffered some adjournments but eventually, on 10- 7-1988, the trial Court declined permission for appearance and defence to the defendant holding that petition filed by him for the purpose was barred by limitation and the delay taking place in this behalf could not be condoned. After so observing, it proceeded to decree the suit of the plaintiff for the amount claimed, on 10-3-1988. This decision and decree of the trial Court is subject-matter of challenge in first appeal to this Court.
3. ' Question requiring determination has been set out in the earlier part of the judgment. Copy of the summons sent by registered post was statedly served upon the defendant on 16-3-1988 as was indicated by the certificate from the postal authorities. Summons sent through the Bailiff of the Court was refused by the defendant on 18-3-1988, stating that hc knew of the suit filed against him.
4. Upon his refusal, summons was affixed on the spot without indicating the place of pasting with exactitude. Report by the Bailiff about defendant's refusal and affixation of summons on the spot was thumb-marked by the plaintiff. Application under Order XXXVII, rule 3, Civil P.C. Supported by sworn affidavit was submitted to the trial Court on 28-3-1988. Subsequent to this event, an application under section 5 of the Limitation Act, 1908 seeking condonation of delay was also put in by the defendant, on 20-6-1988. It was supported by an affidavit sworn to by the defendant. Trial.
5. Judge took the view that the defendant having been served on 16-3-1988, petition filed by him on 28-3-1988 was barred by limitation and in absence of sufficient cause; not existing in the case, delay could not be condoned. As said above; after excluding the defence, the, trial Court decreed the suit in favour of the plaintiff.
6. ' Upon hearing the learned counsel for the parties at length and examination of the original records, I find that the contention advanced on behalf of the appellant on the question of limitation and condonation of delay has much force and the view taken in this behalf by the trial Court cannot be upheld. Defendant in the suit filed in summary jurisdiction can neither appear nor defend it without first seeking the permission of the Court on a petition addressed to it A within ten days of the service of summons upon him as required by Article 159 of the Limitation Act, 1908. By Rule 3 added by Ordinance X of 1980 -- Code of Civil Procedure (Amendment) Ordinance, 1980, provisions of section 5 of the Limitation Act have been made applicable to applications under sub- rule (2) of Rule 2 of Order XXXVII, Civil P.C. Even prior to this enactment, section, 5 of the Limitation Act was applicable by rule enacted by Lahore High Court. B Therefore, upon proof of sufficient cause, the Court was authorised to condone the delay and treat the application to have been filed in time. First point to be seen, therefore, is whether the petition for leave to appear and defend was filed beyond the period of limitation prescribed for it. Article 159 of the Limitation Act gave ten days to the defendant to seek leave from the Court and the period commences when the summons is served upon him. In the instant case, the trial C Court adopted two modes for service of summons upon the defendant. First, was through the Bailiff of the Court and, the second, by registered post acknowledgement due. As for the second mode, defendant was shown to have been served on 16- 3-1988 as is indicated by the certificate issued from the postal authorities. It may be of some benefit to note that acknowledgement due accompanying the registered cover was not received back in Court and is not available on the record. For actual date of service of summons by registered post, reliance" was placed merely upon the certificate issued by the postal department.
7. As for the first mode of service through Bailiff of the Court, defendant declined to receive the summons on 18-3-1988, and, thereafter, summons was affixed at the spot. None knows the 'spot' whereupon the summons was affixed. When two modes of service prescribed under Order V, C.P.C.
8. Were adopted by the trial Court and summons in each case was served on different dates, which shall be the material date for the defendant to take for purposes of commencement of limitation to file the petition for leave to appear and defend? Article 159 says that ten days shall commence when the summons is served. It does not provide any clue that in case summons sent by different modes are served on different dates as in the present case, whether the earlier or the later date of service shall govern the terminus a quo. In the above event, could the defendant legitimately pose a question to the Court that since both the summons in the prescribed form required him to seek leave within ten days from the service without much indicating about the commencement of time, either from the first or second service, could any fault be found with him, if he chose to rely on the later date of service. Related question which may also require consideration was whether delay caused in the circumstances could have been condoned, taking it to be a sufficient cause, in case of lay litigant who was not well-versed with procedural intricacies. Provisions of Order XXXVII, C.P.C.
9. Which applied to the specified class of suits based upon certain negotiable instruments provide for a summary procedure. Its clear object is curtailment of proceedings and rapidity of decision. By its very nature, its provisions are stringent. Sub-rule (1) of rule 2 of Order XXXVII provides that the summons shall be, in form NoA, in Appendix B, or in such other form as may from time to time be prescribed. No other form except the form given in Form 4 of Appendix B has since been prescribed.
10. Requirements of prescribed form of summons are distinct and also different from ordinary summons. Summons in the prescribed form requires the defendant to apply for leave to appear and defend the suit within ten days of service upon him which does not seem to be the requirement of the summons in suits instituted under ordinary procedure. It is the summons in the prescribed form which puts the defendant on notice to take certain steps within specified period before he is allowed to appear and defend the suit. Order XXXVII does not lay down a separate procedure for service of summons. Its provisions do not exclude Order V, C.P.C. To the suits instituted under it. Therefore, the summons issued under rule 2 of Order XXXVII must be served in the same manner as provided for service of ordinary summons under Order V of C.P.C. It was not disputed that rule 10-A of Order V, C.P.C. Also applied to suits instituted under summary jurisdiction and unless otherwise ordered by the Court, simultaneously with issue of summons in prescribed form, a copy of summons by registered post acknowledgement due could also be addressed to the ,defendant for his service. Parallel provisions about different modes of service are provided by rule 8 of the banking Companies (Recovery of Loans) Rules, 1980. Section 7(2) of the banking Companies (Recovery of Loans) Ordinance, 1979 provides for application of Order XXXVII, Civil P.C.
11. To the trial of suits instituted under the aid Ordinance.
12. ' Rule 8 enacts:-- "Mode of service of summons and notices.--The Reader shall, on receipt of a plaint, order immediate issue of summons and notices to the defendant simultaneously through the Bailiff of the Court, by registered post acknowledgement due and by publication."
13. ' Above rule fell for interpretation by the Karachi High Court, in Messrs Allied Bank of Pakistan Ltd. v.
14. Messrs Tahir Traders and 8 others PLD 1986 Kar. 369 d was resolved thus:-- "When the summons is issued in three modes it is not possible that all the three summons may be served on the same day and it is likely that they may- be served on different dates. The question may arise from which date the period of limitation should be computed for filing application under Order XXXVII, rule 3, C.P.C. If there are more than one date of service of summons then from amongst the dates of service of summons by post, by publication or through the bailiff whichever is later, should be taken to be the date from which the period of limitation should be computed. In the present case, publication was made on 29th November, 1985, the bailiff served the summons on 4-1-1986 and application under Order XXXVII, rule 3 was filed on 11-1-1986. On the principle enunciated above, the period of limitation for filing the application should be computed from 4-1- 1986, and, therefore, it was not beyond the period prescribed by Article 159. In fact, this application under section 5 of the Limitation Act seems to have been made by way of abundant caution."
15. ' In this behalf, some assistance can also he taken from the unamend sections 8 and 9 of the West Pakistan Family Courts Act, 1964. Section 8 reads:-- "Intimation to defendants. ---(1) Within three days of the presentation of the plaint to Family Court, the plaintiff shall send to each defendant by registered post, a copy of the plaint together with a copy of the Schedule as mentioned in section 7(2) and copies of all documents mentioned in section 7(3).
(2) Save as may otherwise he prescribed, the plaintiff shall also, within the time specified in subsection (1), cause notice to he inserted in any two newspapers approved by the Family Court of the fact of his having filed the plaint."
16. ' Section 9 provides:-- "Written statement. ---(1) Within fifteen days of the service of notice upon him by registered post or the publication of a notice in a newspaper, whichever is earlier, the defendant shall appear in Court and file his written statement.
(2) With the written statement the defendant shall attach--
(a) copies of the entire documentary evidence that he wishes to produce in the case; and
(b) a list of the names and addresses of his witnesses alongwith a precise of the evidence that each witness is expected to give.
(3) Copies of the written statement and the documents referred to in subsection (2) shall be sent by registered post by defendant to the plaintiff within three days of his filing the written statement: ' Provided that if there are several defendants and they file a joint written statement, only one of them shall send a copy of the written statement with the documents mentioned in subsection (2).
(4) If the defendant fails to appear within the time specified in subsection (1) the Family Court may proceed against him ex parte."
17. ' By subsequent amendments, sections 8 and 9 were materially altered. Unamended section 8 of the Family Courts Act prescribed two modes of service i.e, by registered post acknowledgement due and publication in two newspapers and fifteen days commenced from the date of service by either mode whichever was earlier. No such provision existed for such a situation in the case under consideration. In this view, construction of the parallel provisions in rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 by the Karachi High Court enunciates a correct legal position. Any ambiguity must be resolved in favour of the litigant who on its literal construction is likely to lose his right of defence. Consequently, that interpretation should be made which advances the cause of adjudication on merits. In Lala Gopal Das v. Lala Chander Prakash--AIR 1966 Jammu and Kashmir 138 considering the provisions of Order XXXVII read with Article 159 of the Limitation Act, 1908, a Division Bench of the Court observed:-- "A perusal of this clause makes it very clear that the statute prohibits the defendant from appearing or defending the suit without obtaining permission of the Court in the manner laid down in this sub-rule. This sub-rule also contains the penalty for non-appearance as a result of which the plaintiffs suit has to be decreed and the allegations of the plaintiff would be deemed to be admitted. Order 37 of the Code of Civil Procedure, makes a serious departure for the trial of the suits from the procedure laid down for the trial of the suits under the other provisions of the Code of Civil Procedure. The procedure contemplated by Order 37, C.P.C., is both harsh and rigorous and is in the nature of a summary trial. In such suits the defendant cannot appear or defend the suit as a matter of right but has to obtain the permission of the Court within a specified period of time. In view of these circumstances, we have to construe the provisions strictly giving every benefit of doubt to the subject. Article 159 of the Limitation Act, provides a period of 10 days to file an application for least to appear and defend the suit from the date when the summons under Order 37 sub-rule (2), C.P.C., is served on the defendant. This is the only starting point of limitation mentioned in Article 159 of the Limitation Act. As it is common ground that no summons was ever served on the defendant, the starting point of limitation in the present case, did not reach at all and therefore, the question of application for leave to defend the suit being barred by time does not arise. Mr. Das argued that the words 'when the summons is served' should he construed to include also the date when the defendant acquires knowledge that a suit under Order 37, C:P.C., had been filed against him. Learned counsel has drawn our attention to the provisions of section 18 sub- clause (1)) of the Land Acquisition Act which runs as follows: `In other cases, within six weeks of the receipt of the notice from the Collector under section 12 subsection (2) or within 6 months from the date of the Collector's award, whichever period shall first expire.'
18. ' It has been contended that the second clause of subsection (b) lays down the period of six months from the date of the Collector's award but it has been held by various Courts in India including the Supreme Court that the period would run not from the actual date of the award but from the date when the concerned party gets knowledge of the award having been made. On a parity of reasoning, therefore, it was submitted that a similar interpretation should be put on Article 159 of the Limitation Act. We are, however, unable to agree with this contention. The analogy of section 18(b) of the Land Acquisition Act cannot be applied to Article 159 of the Limitation Act for several reasons. In the first place, the plain language of the first part of clause (b) lays stress on the fact of the receipt of the notice from the Collector. Thus, the Statute clearly intends that the starting point of limitation would he the date of the knowledge of the award either when the party knows about it by virtue of a notice being served on it or otherwise. Similarly section 18 clause (a) provides a lesser period of limitation where an award is announced in presence of the party or its agent.
19. Here also the Legislature intends that the knowledge of the award should he the test to determine the starting point.
20. ' Secondly, the words used in the second clause of section 18(b) have to be read together with the words in the first clause because the last words are 'whichever period shall first expire' and it is, therefore, manifest that when the statute used the words 'from the date of Collector's award' these words have to be read ejusdem generis, with the words used in the first part' of section 18(h) which gives six weeks time from the receipt of the notice from the Collector. Thirdly, the language of the provisions of section 18 of the Land Acquisition Act and that of Article 159 of the Limitation Act are essentially and absolutely different and it is no possible for us to adopt a common criterion for interpreting the Mc provisions of two separate Acts. Finally, when Art. 159 of the Limitation Act, provides that the starting point of limitation would run from on and one contingency alone, namely, the date of the service of the summons on the defendant it will amount to importing additional words in the statute, if we were to hold that the starting point may arise also from the, date when the defendant acquires the knowledge of the suit, and not only from the date when summons are served on him under the provisions of Order 37, sub-rule (2), C.P.C. Mr. Sehgal rightly pointed. Out that the language of Order 37, sub-rule (2) C.P.C., was mandatory and since a penal clause was provided for default of appearance, it cannot be held that the provisions are merely directory.
21. Moreover, it is well-settled that when a Statute provides a particular mode of doing something in a particular manner, any departure from the manner prescribed by the Statute would amount to disobedience of the express provisions of law. We are supported in this view by decisions of the Supreme Court reported in AIR 1962 SC 113 and AIR 1962 SC 1694.
22. ' Moreover, on an interpretation of the plain language of Order 37, sub-rule (2) of the Code of Civil Procedure, it would appear that the Statute lays down in express words that the defendant shall be prohibited both from appearing and defending the suit unless he obtains permission of the Court as laid down in that sub-rule. The words 'appear' and 'defend' are separated by the disjunctive 'or' and, therefore, the disability imposed by this rule attaches separately both to appearance and to defending. In other words, neither the defendant can appear in the suit nor can he defend the suit without complying with the provisions of sub-rule (2) of Order 37, C.P.C.. The bar for appearance by the defendant is categorical and the provisions of sub-rule (2) debar the defendant from appearing at any stage of the suit either before or after the service of the summons and for any purpose whatsoever without obtaining the leave of the Court. We are fortified in our view by a decision of the Calcutta High Court reported in ILR (1956) 1 Cal.
197. A similar view was also taken by the Bombay High Court in Pestonji Shapurji v. Jamshedji Nowroji, AIR 1926 Bom 250. In this case, the defendant appeared before the District Judge for the limited purpose of praying to the Court that in the event of decree being passed against him, the said decree may be allowed to be paid by instalments. A Division Bench of the Bombay High Court held that as no permission from the Court had been taken by the defendants to appear to defend the suit, the defendant was not entitled to appear in the suit even for the purpose of praying that a decree by installments be granted. In this connection, their Lordships of the Bombay High Court observed as follows:- `The important point to notice is that a defendant in a summary suit cannot be allowed to appear while the hearing is proceeding, and in this case, in my opinion the Judge was wrong in allowing the defendants' attorney to appear before a decree had been passed in accordance with the plaint.'
23. ' It follows, therefore, that if the Statute prohibits the defendant from either appearing before the Court or defending the suit, then any appearance made in express disobedience to the mandatory provisions of Order 37, sub-rule (2), C.P.C. Will be destitute of any legal effect and would have to be completely ignored. It is common ground that in the present case, right from the date when the suit was instituted till 22-12-1965, when the defendant filed an application for leave to defend suit, no permission by the Court to appear or defend the suit was granted in accordance with the provisions of sub-rule (3) of Order 37 of the Code of Civil Procedure. Thus, the appearance of the defendant upto 22-12-1%5 would have to he ignored and cannot be interpreted to be an appearance in the suit. It is common ground that no summons had been served in the form prescribed by the sub-rule (1) to the defendant upto the date of the decree."
24. ' In M/s. Gainda Mull Hem Raj v. M/s. Arora Brothers and another AIR 1973 Delhi 141, speaking on the nature of proceedings prescribed in order XXXVII, it was held:-- "A special and summary procedure has been prescribed by Order 37 of the Code of Civil Procedure with respect to suits on the basis of negotiable instruments. Sub-rule (2) of Rule 2 of Order 37 provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge so to appear and defend and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall he deemed to be admitted and the plaintiff shall he entitled to a decree as provided in sub-rule (2). It shows that the provisions are stringent and in the absence of the grant of leave, the ordinary procedure applicable to ordinary suits is not applicable and the plaintiff is entitled to a decree as the allegations in the plaint are deemed to be admitted.
25. ' Rule 3 of Order 37 provides for the grant of leave to defend the suit on merits upon the application by the defendant upon affidavits which disclose such facts as would make it incumbent on the plaintiff to prove consideration, or such other facts as the Court may deem sufficient to support the application. Rule 3 requires two things (1) an application by the defendant and (2) a disclosure upon affidavits, of such facts as require proof of consideration or such facts as arc considered by the Court to he sufficient to support the application. A mere application for leave to defend is not enough. The facts mentioned in the application for leave to defend have to he established upon affidavit which should normally accompany the application but which may be filed even after the application has been filed. Rule 3 uses the word 'affidavits' i.e, in the plural. The affidavits contemplated by Rule 3 are not merely affidavits which may he filed by the defendant applying for leave but also affidavits which may be filed by the plaintiff to contest the correctness of the facts averred by the defendant. Rule 3 permits proof on affidavits because until leave is granted, the proceedings are summary and also because affidavits are a recognised method of proving or disproving facts vide Order 19 of the Code of Civil Procedure. If the facts pleaded in the application for leave arc not supported by any affidavit, they cannot be said to have been proved even in such summary proceedings. Proof is required by affidavit also because it should not be open to a defendant to plead facts without stating them on oath.
26. ' It is, therefore, necessary that the facts pleaded in the application for leave, must be supported by an affidavit filed either with such application or subsequently. In my view, an affidavit which has been filed by the defendant earlier in respect of some other application, even though it be in the same suit, cannot he taken to be an affidavit in support of the application for leave under rule 3.
27. The trial Court, therefore, clearly committed an irregularity in relying upon the affidavit filed by the respondents earlier in reply to the petitioners' application for injunction and the order granting unconditional leave to respondent No, 2 has, therefore, to be set aside."
28. ' If period is taken to run from the date of service of summons through Bailiff, then the application for permission to appear and defend the suit was filed in time by the defendant. Even if it is held that the defendant was actually served on 16-3-1988 by summons sent through registered post, petition for leave to appear and defend having been filed on 28-3-1088 was barred by two days only and in the existing circumstances, this delay could have been condoned under section 5 of the Limitation Act which admittedly applied to such applications. It is true that petition for condonation of delay supported by an affidavit was not filed alongwith the petition for leave to appear and defend but this factor shall not disentitle it from receiving consideration on merits from the Court. In number of cases, it was held that section 5 of the Limitation Act does not lay down that it could be invoked only if the claimant filed a written application accompanied by an affidavit.
29. Even an oral application may under given circumstances be sufficient though as a general rule it is always desirable that a written application stating the facts for condonation of delay is filed. It also cannot be held that unless application for condonation of delay is filed alongwith the proceeding, the same must be dismissed outright without its adjudication on merits. In State of Bihar and others v. Ray Chandi Nath Sahay and others AIR 1983 Patna 189, despite enactment of an express rule 3-A in Order 41 of the Code of Civil Procedure which laid down that if the appeal was filed beyond the period of limitation, it shall be accompanied by an application explaining the circumstances that the appellant had sufficient cause for not preferring the appeal within time, the Court observed:-- "We regret we cannot accept this effect of non-compliance of Rule 3-A of the Code. The filing of limitation petition is entirely different from the filing of an appeal. For proper presentation of appeal all that is needed is that the memorandum of appeal is accompanied by a copy of the judgment and of the decree as provided in R. 1 of 0.41 of the Code. The ambit of R. 1 cannot he enlarged and has not been enlarged by R. 3A of the Code. We regret, we find it difficult to accept the interpretation placed by Mr. Prasad upon the provisions of R. 3-A and the consequence of non- compliance thereof. This view of ours appears to be supported by that of the Supreme Court in Mrs. Sandhya Rani Sarkar v. Smt. Sundha Rani Debi AIR 1978 SC 537, in paragraph 7."
30. 'In absence of clear expression in section 5 of the Limitation Act, above appears to be a correct statement of law with which I respectfully agree and hold that it is not essential that an application for condonation of delay must be filed alongwith the proceeding and unless it was so done, it could not be looked into. Case of Abdur Rehman, etc. v. Mukhtar Ahmed, etc. 1985 CLC 1072 (Lahore) in which decision in Shangara Singh and others v. Imam Din and others AIR 1940 Lah. 314 was relied upon proceeds on distinguishable facts and the rule of law laid down therein is not attracted to the facts of the case under consideration. In absence of negligence, inaction or want of bona fides imputable to a party, word "sufficient cause" must receive a liberal construction so as to advance the cause of substantial justice. It is manifest from the above that the petition for leave to appear and defend from the date of service of summons actual or presumed through Bailiff of the Court, petition for leave to appear and defend was filed in time and application under section 5 for condonation of delay was submitted out of abundant caution. However, even if it is found that terminus a quo is date of service of summons by registered post on 16-3-1988, the appellant had given sufficient cause to condone the delay.
31. ' In view of the aforesaid, I would accept the appeal, set aside the impugned judgment and decree of the learned Judge below and direct decision of the petition for leave to appear and defend the suit on merits treating it to have been filed in time. In the circumstances, parties are to bear their own costs.