2003 PLP 1233 (CLC)

Where law had prescribed a thing to be done in a particular manner, doing of that act in any other manner would amount to illegality. Akbar Ali Khan for Petitioner. Mansoor Abbas for Respondent. Date of hearing: 7th March, 2003. Haji Muhammad Ali has file the present revision under section 115, C.P.C. against the order dated 28-2-2002 of the learned District Judge, D I. Khan by which the application filed by the defendant, who is respondent herein, for leave to appear and defend the suit was accepted.

2. The brief facts, giving rise to this revision, are that the plaintiff, who is petitioner herein, brought a suit against the respondent under Order XXXVII rule 2, C.P.C. for the recovery of Rs.750,000 on the basis of a Pronote dated 2-1-2001. Summons was issued to the respondent as prescribed in Form No.4 of Appendix 'B', C.P.C. but he could not be personally served. Ultimately, the respondent was ordered to be served through substituted service in a newspaper. Accordingly, the summons was published in daily 'Ausaf', Islamabad dated 29-5-2001 for 7-6-2001. On 11-6-2001, the respondent appeared in Court and submitted an application that he be-allowed to appear in Court and to defend the suit. The petitioner contested this application. On 21-7-2001 the respondent further filed an application stating therein that as on account of some misconception, he filed the application late, therefore, if there would be any delay, the same may be condoned. After hearing the learned counsel for the parties, the learned trial Court condoned the delay on the ground that the respondent is living in D.I. Khan while the summons has been published in daily 'Ausaf', Islamabad and allowed the respondent to appear in Court and to defend the suit vide order dated 28-2-2002. Against this order of the learned trial Court, the petitioner has filed the present revision petition.

3. I have heard the learned counsel for the parties and have perused the record.

4. The petitioner has challenged the impugned order of the learned trial Court on two grounds, firstly; that the application to appear and to defend the suit was barred by three days, for the condonation of which, no plausible explanation was offered and secondly; the very application is not supported by any affidavit, as such, there was no proper application in the eyes of law before the Court.

5. So far as the first argument of the learned counsel for the petitioner is concerned, it is without force, for the reasons, firstly; that the service of a summons through substituted service in a newspaper is a weak type of service and cannot be equated with personal service. The words, "when the summons is served" appearing in Column No.3 of Article 159 of the Limitation Act, 1908, apparently means personal service for the purpose of Order XXXVII rule 2, C.P.C. and giving it here any other meaning, would lead to miscarriage of justice, secondly, perusal of the summons published in daily 'Ausaf', Islamabad shows that the same does not substantially conform to the summons in Form No.4 of Appendix 'B', C.P.C. The procedure under Order XXXVII, C.P.C. being of summary nature for which special form of summons has been prescribed by Order XXXVII rule 2 vide Form No.4 Appendix 'B', C.P.C. The provisions of this rule are mandatory in nature, for the non compliance of which by the Court, the respondent could not be published. Where the law prescribes a thing to be done in a particular, manner, the doing of that act in any other manner amounts to illegality. In a case reported in PLD 1984 Karachi 252, the delay was condoned for the reason that the summons issued under rule 2 of Order 37,C.P.C. was issued to the defendant without a copy of the plaint and the service was held to be improper. Recently, this Court in a case reported in PLJ 2002 (Peshawar) 17 condoned the delay on the ground that no copy of a plaint was attached with the summons and service of the summons was held to be in violation of the law laid down in Order 37, rule 2, C.P.C.

6. As far as the second argument of the learned counsel for the petitioner is concerned, this is also without force. Though the application for leave to appear and to defend the suit is not supported by an affidavit but later on, the respondent filed the same on 2-11-2001 without any objection from the petitioner, as such, the defect, if any, objection from the petitioner, as such the defect if any stood cured.

7. Accordingly, this revision petition being without merits fails and is hereby rejected. H.B.T./798/P Revision petition rejected.