The brief facts out of which the present revision petition arises are that the petitioner secured a loan from the respondents allegedly through a pronote dated 30-11-1989. The petitioner failed to discharge his liabilities allegedly in terms of the pronote. The respondents being aggrieved filed a suit for recovery of Rs.5,12,519.53 alongwith profit mark-up at the rate of 18 % with the further prayer that mark-up shall be paid by the petitioner to the respondents till realization of the loan before the learned Additional District Judge, Lahore, on 29-11-2001. The learned trial Court issued notice to the petitioner vide order dated 8-12-2001 for 5-1-2001. The petitioner appeared before the Court on 5-1- 2002. The Reader of the Court intimated the petitioner to file an application for leave to defend. The petitioner filed an application for leave to defend alongwith an application for condonation of delay under section 5 of the Limitation Act. The learned trial Court dismissed the application for condonation of delay on the ground that the petitioner had to file application for leave to defend till 22-12-2001 but the petitioner failed to file the same till 5-1-2002. The petitioner was directed by the trial Court to file an application for leave to defend within ten days whereas the petitioner had filed application for leave to defend after 13 days after the expiry of the limitation period.
2. The learned counsel of the petitioner submits that the petitioner received only a Pert of summons issued by the learned Additional District Judge on 12-12-2001 as is evident from report of the process-server. He further submits that the petitioner did not receive the copy of the plaint alongwith the summons issued by the learned Additional District Judge, therefore, the proper service of the petitioner was not effected in terms of the mandatory provisions of Order 37 read with Schedule attached with C.P.C. In support of his contentions, he relied upon S. Aziz Ahmad v.
Walayat Hussain 1984 CLC 3028.
3. The learned counsel of the respondent submits that report of the process --server clearly reveals that copy of the plaint was handed over to the petitioner alongwith the summons, therefore, learned trial Court was justified to dismiss the application of the petitioner as time-barred.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the report of the process-server to resolve the controversy between the parties:-- The second part of the report is not signed by the petitioner. In case the report of the process- server be read as a whole then it is crystal clear that petitioner only received the summons and the possibility cannot be ruled out that copy of the plaint was not handed over to the petitioner as the second part of the report was not signed by the petitioner. It is settled principle of law that the benefit of doubt must be given to the person who would be deprived to contest the case on merits instead of technical grounds especially when the aforesaid portion qua receiving the copy of plaint by the petitioner is not signed by the petitioner as well as by the process-server, therefore, possibility cannot be ruled out that the petitioner did not receive the copy of the plaint. The learned trial Court did not examine the case after applying its independent mind and scrutinized the backside of the summons in its true perspective. It is settled principle of law that Courts are duty bound to decide the controversy between the parties after applying their independent mind as per principle laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173. After addition of Article 2A in the Constitution, the superior Courts insisted that the cases must be decided on merits instead of technicalities as per principle laid down by the Honourable Supreme Court in Saad Muhammad's case PLD 1989 SC 532. As mentioned above, it is not clear from the backside of the summons that the petitioner has received copy of the plaint, therefore, service of the petitioner was not effected in terms of Order 37, rule 2, C.P.C. Read with Schedule attached with the C.P.C. Which is mandatory in nature. As service of the petitioner was not effect in terms of the mandatory provisions of law, therefore, the impugned order is not in accordance with law as per principle laid down by the superior Courts in the following judgments:- - S. Aziz Ahmad v. Walayat Hussain 1984 CLC 3028; Lal Muhammad through Legal Heirs v. Allied Bank of Pakistan and others PLD 1990 Peshawar 71; Hafiz Muhammad Bashir v. Habib Bank Limited 1992 CLC 1937; Cotton Export Corporation v. Nagina Cotton Industries 1993 CLC 2217; Abdul Ghafoor v. Ghulam Qadir 1989 MLD 3954; Allah Bakhsh v. Abdul Aziz 1990 MLD 230.
6. In view of what has been discussed above, the revision petition is accepted meaning thereby the leave to defend E application filed by the petitioner shall be deemed to be pending adjudication before the learned Additional District Judge, Lahore. Parties are directed to appear before the trial Court who is directed to decide the leave to defend filed by the petitioner on merits within three months. The learned counsel of the parties are directed to cooperate with the learned trial Court so that the matter may be finalized within the prescribed period.