1. ' This is an application (C.M.A. No, 5355/87) filed by defendant No,10 under section 148, C.P.C. Read with Section 151, C.P.C. And Order 37, Rule 3 (2), C.P.C. Praying that "10 days time be granted to file application for leave to defend the suit from the date of receipt of the copies of plaint and annexures" on the ground that, although it had been served by registered post as well as by publication, it had not received the copies of the plaint and the annexures which had been delivered by the bailiff to defendant No,9; and that in the absence of such copies it was unable to give the necessary instructions to its counsel for filing an application for leave to appear and defend the suit.
2. ' Mr. Muhammad Maqsood, the learned counsel for the defendant No,10, was unable to answer my query as to how the application for extension of period fixed by the statute was maintainable.
3. Section 148, C.P.C. Applies, in terms, only "where any period is fixed or granted by Court for doing of any act prescribed or allowed by this Code." It cannot apply to a period which is fixed by any statute. In the case of Holy Trinity Church Trust v. Ansari Bros., reported in PLD 1963 Lahore 488, the contention that the Rent Controller had the power to extend the period for deposit of monthly rent in proceedings under the West Pakistan Urban Rent Restrictions Ordinance, 1959, was rejected and it was observed:- "In my opinion, section 148 of the Civil Procedure Code, even if it were to be applied to the present proceedings does not help the respondent because section 148 is applicable only to cases where the enlargement is made by the Court in the time fixed by it for doing any act as prescribed or allowed by the Court. In cases falling under Rent Restrictions Ordinance the fixation of time for payment of future rent, viz. The 5th day of each running month, is provided by the statute itself and it would be defeating that statute if it were to be held that in spite of this express provision, laying down a particular date for payment of the future monthly rent, the Court can under its own powers interfere with that fixity of time by its enlargement or abridgement."
4. The principle is fully attracted to the facts of this case. The period of limitation for filing an application for leave to appear and defend the suit governed by the provisions of Order 37 of the Code of Civil Procedure is prescribed by Statute and cannot be extended under section 148 of the Code. Reference in this connection may also be made to the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali, reported in PLD 1967 SC 530.
5. Mr. Maqsood next contended that the time may be extended under section 151, C.P.C. That section, however, cannot be called in aid to nullify the e statutory provision fixing the period for filing an application to appear and defend the suit.
6. ' It was then contended by Mr. Maqsood that, in any case, the application may be treated as one under section 5 of the Limitation Act, 1908, which provides, inter alia, that any application to which section 5 may be made applicable by or under any enactment may be admitted after the period of limitation prescribed therefor, when the applicant satisfied the Court that he had sufficient cause for not making the application within such period. I inquired from Mr. Maqsood whether he would like to make a proper application under section 5 of the Limitation Act. He stated that he did not wish to do so and insisted that the present application be treated as one under section 5 of the Limitation Act.
7. ' Assuming that the application may be treated as one under section 5 of the Limitation Act, 1908, the defendant No,10 has not disclosed sufficient grounds for granting it. The only ground disclosed is that the application could not be made because copies of the plaint and the annexures were not available. The admitted facts are that the defendant No,10 was served by registered post on the 19th November, 1987, and by publication on the 20th November, 1987. It did not engage a counsel until the 24th November, 1987, and it was not until the 29th November, 1987, that Mr. Maqsood filed his Vakalatnama and filed the present application. There is no explanation as to why copies of the plaint and the annexures were not obtained from Court between the date of service of summons or the date when the defendant No,10 approached its counsel and the date when the period of ten days for filing an application for leave to appeal expired. Mr. Maqsood says that he obtained the copies from Court on the 8th December, 1987, but, according to Mr. Ansari, learned counsel for the plaintiff, he had filed only one copy of plaint and annexures for defendant No,10 (which, as stated above, were delivered by the bailiff to defendant No,9) and that he had not filed any extra copies.
8. He, therefore, contends that the defendant No,10 could not have obtained any copies from Court and must have obtained them from defendant No,9. Mr. Ansari's contention is plausible. In any event, the defendant No,10 could have filed an application for leave to appear and defend the suit within 10 days from service of summons by registered post and could subsequential have filed an affidavit to support such an application. It was held in the case of Union Bank of the Middle East Ltd. v. Messrs Zubna, Ltd. PLD 1987 Kar. 206 that "there can be no impediment in making first an application for leave to defend, c even without a copy of the plaint, within the statutory period. The grounds for leave to defend may be submitted later on, after the receipt of the copy of the plaint".
9. That view has been upheld in the case of Ahmed Autos v. Allied Bank of Pakistan Ltd. (PLD 1990 SC 497 at p.502).
10. ' Mr. Muhammad Maqsood has contended that the plaintiff had given wrong address of the defendant No,10 with a view to obtain ex parte decree and has also contended that the correct address of the defendant is SLIC Building, Wallace Road, Karachi, and not the one given in the plaint. In support of his contention, he relied upon a letter dated 22-1-1987 addressed by the plaintiff to the defendant No,10 at SLIC Building, Wallace Road, Karachi. Mr. Muhammad Asghar Ansari, the learned counsel for the plaintiff, contends that the address given in the plaint is correct and has supported his contention by referring to letter dated 13-6-1987 sent by the plaintiff to the defendant No,10 and received by it. The receipt of this letter has not been denied by the defendant No,10. Be that as it may, the fact remains that the defendant No,10 was aware of the suit as the summons was admittedly served on it by registered post as well as by publication.
11. ' In the circumstances, the application has no merit and is hereby dismissed.