' This regular first appeal against a decree dated 4-3-1990 passed by Ch. Shabbir Hussain, Additional District Judge, Lahore for recovery of Rs,18,000 in a suit filed by the respondent under Rule 2 of Order XXXVII, C.P.C. Arises out of the facts stated by the trial Court in paras. 3 and 4 of the impugned judgment as under:---
(3) Defendant was summoned. He appeared on 8-1-1990 before this Court. Thereafter case was adjourned on 17-1-1990. On that day defendant was absent. He did not file any application for leave to appear and defend the suit as required under Order 37, C.P.C. Therefore, ex parte proceedings were taken against him and case was adjourned on 1-2-1990 for ex parte evidence.
(4) Alongwith application under Order 9, Rule 7, C.P.C. Petitioner/defendant also filed application for leave to appear and defend the suit on 20-1-1990 before this Court."
2. It stands noticed in the interim order dated 17-2-1989 recorded in the suit that the respondent has been served through registered process and has not appeared, hence, citation in the daily `Nawa-i-Waqt' be published for his appearance on 8-1-1990. Resultantly, he appeared in the Court on that date when the trial Judge noted that reply and application for defence of suit has not been filed and he adjourned the suit to 17-1-1990 when interim order was recorded that defendant is neither represented nor has he applied for leave to defend the suit and is, hence, proceeded ex parte. The suit was adjourned to 1-2-1990 for ex parte evidence.
' There is an application under Rule 7 of Order IX, C.P.C. Available on the record with the trial Court's order, dated 17-1-1990, putting the same off to 1-2-1990 (the date fixed in the suit). Then, there is also an application for grant of leave to defend the suit bearing the date 20-1-1990 in the above terms.
3. Duplicate of the summons issued for service of the defendant is not available on the record of the trial Court and only a postal acknowledgement receipt is available at page 63 thereof bearing signature of Abdul Ghani but there is no date of service recorded thereat and even the postal stamps are not legible. Thus, there is nothing available on the trial Court's record to indicate that service thereby effected on him may have fulfilled the requirements of the aforesaid Rule 2, as regards the form of summons and in the absence thereof it is not possible to hold that he may have been served according to law for the purpose of the period under Article 159 of the Limitation Act starting to run against him. Muchless may the service effected on him through citation in the press be capable of giving start thereto. Objection on the point was specifically raised before the trial Judge who proceeded to repel it by such ingenuity of logic as is not easy to comprehend. He has recorded in para. 5 of his judgment as under:--- "5. Learned counsel for petitioner contends that petitioner was not properly served. Therefore, he could not file an application for leave to defend the suit. Even if that argument is taken to be true the defendant appeared before this Court on 8-1-1990 meaning thereby that he was properly served prior to that date?
' Not only that a conclusion with regard to proper service having been effected on him before that date (8-1-1990) is incapable of flowing from the mere fact of his appearance in the Court on that date but also the trial Judge having A himself taken the argument (with regard to want of proper service) to be true; he could not have, on the basis only of that assumption, come to the exactly contrary conclusion to the effect that he was properly served. It is well-settled that provisions of Limitation Act are necessary to be strictly construed and no inferential assumption is permissible to be made as regards the sine qua non for limitation and the time of starting of the period of limitation. In Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252 service on a defendant found to have not been properly made on the basis of Form referred to in Rule 2, conclusion was reached that period of limitation had not started to run against him.
4. Hence, petitioner's application for leave to defend the present suit could not be dismissed on the assumption that it was time-barred. Since that trial Court placed the defendant ex parte on 17-1- 1990 which is also the date of order passed by it on one of the applications to put the same off to 1- 2-1990 for being taken up with the suit and this date happened to be within ten days of the defendant's appearance in the Court on 8-1-1990, therefore, this fact could not become a basis for the suit being proceeded ex parte him to be decreed without recording of any evidence inasmuch as decree without evidence becomes liable to be passed under Rule 2(2) of Order XXXVII, C.P.C. In the specified events of default of appearance of default of obtaining leave and defending in pursuance thereof. Neither of these conditions existed in this suit, therefore, ex parte decree could not be passed in the manner that it has been.
' The order placing the defendant ex parte in the suit and the one relating to dismissal of his application for that order being set aside and even the rejection for that order being set aside and even the rejection of his application for leave to defend the suit on the assumption of its being time-barred are not sustainable and are set aside alongwith the ex parte decree dated 4-3-1990.
5. In result, suit of the plaintiff is restored so that defendant's application for leave to defend the suit be taken up by the trial Court for being decided afresh in accordance with law for the suit being proceeded with in accordance therewith from the stage it had reached in January, 1990. This appeal is allowed in the above terms and the suit is remanded to the trial Court for being proceeded with in the manner indicated above. There, however, is no order passed with regard to costs hereof.
6. Parties have been directed to put in appearance on 1-12-1991 before learned District Judge, Lahore who may retain the relevant suit on his own file or assign the same to any Court of competent jurisdiction, other than that of Ch. Shabbir Hussain, Additional District Judge.