P L D 1983 Lahore 491 (PLP)

This revision petition arises out of the order dated 16-12-1982 passed by the Civil Judge, 1st Class, Lahore.

2. Facts relevant for the disposal of this petition are that on 14-7-1982, the petitioner/plaintiff instituted a suit before the learned Senior Civil Judge, Lahore, under Order XXXVII of the Code of Civil Procedure, claiming a decree of Rs. 3,10,000, together with interest and costs on the basis of five dishonoured cheques drawn by the respondent/defendant and payable to the petitioner/plaintiff. Summons on Form 4 of the Appendex W of the Civil Procedure Code, as visualised by Order XXXVII, C. P. C. was served on the respondent as per report dated 7-10-1982 of the Process Server which was duly endorsed by his affidavit dated 12-10-1982, read thus : (Sd.) A. Wahla (Sd.) P. S. Attested ?(Sd.) and Seal Clerk of Court 7-10-1982"

3. The respondent/defendant failed to make application for leave to appear and defend the suit within 10 days from the service of the notice as contemplated by Article 159 of the Limitation Act (IX of 1908) and instead made an application on 23-10-1982. The application was allowed by order dated 16-12-1982 of the learned Civil Judge, 1st Class, Lahore, to whom the case was entrusted ; inter alia on the ground that the respondent was served with summons on 12-10-1982. The application was submitted on 23-10-1982 because 22-10-1982 was a holiday, therefore, it was treated within limitation.

4. Learned counsel for the petitioner contends that the finding recorded by the trial Court is based on misreading of evidence, in that, the respondent was served on 7-10-198?. and not on 12-10-1982, therefore, the application for leave to appear and defend the suit was barred by time. He submitted that the trial Court has been misled by the date of attestation of the affidavit of the process-server which is 12-10-198? in coming to the conclusion that the respondent was served on 12-10-1982.

5. Mr. M. Abbas Mirza, learned, counsel for the respondent/defendant submitted that the finding of the trial Court on the question of limitation is based on evidence on record, in that, the petitioner was also served through registered post acknowledgement due on 12-10-1982. He further submitted that the process-server did not obtain date of signature of the respondent on his report, therefore, the personal service purported to have been effected on 7-10-1982 was invalid. He also emphasised that the trial Court in the exercise of power vesting in it under section 148 of the Code of Civil Procedure, enlarged the time in submitting the application by order dated 23-10-1982, therefore, even if the application was hit by limitation, the period was extended to which no exception can be taken. In this connection, he referred to the interim orders of the trial Court which read (Sd.) 6. 1 have heard arguments of learned counsel for the parties and perused with their assistance, the documents annexed with this petition.

7. Rule 10-A(i) of Order V of the Code of Civil Procedure provides that simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant by .registered post, acknowledgement due, another copy of the summons signed and sealed in the manner provided in rule

10. Rule 16 of Order V provides that where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. In the instant case, the 'serving officer failed to obtain the date of signatures of the defendant nor there was an identifier in accordance with rule

18. There was, therefore, a technical non-compliance of rules 16 and 18 which by itself is not a material irregularity, in the circumstances of the present case, inasmuch as, the respondent/defendant has not challenged the factum of personal service. The dispute only is as to the date of service which was not even raised in the application by the respondent/defendant. In any event, report of the process-server bears an endorsement duly verified by his affidavit. Thus visualised, the delivery of summons to the respondent/ defendant was a prima facie proof of service on 7-10-1982. This indeed is a rebuttable presumption which the respondent/defendant failed to displace. He neither applied to the trial Court for examining the serving officer on oath nor led any other evidence to prove that date of service of the summons was incorrectly recorded. Refer S. R. Nawaz and another v. Mirza Nasir Ali (P L D 1962 (W. P.) Lah. 185) wherein it was held with reference to Order V, rule 20 and Order IX, rule 13 of the Code that onus lies on party alleging that no substituted service has been effected as required by law and where factum of substituted service had not been challenged and report of the process-server was alleged to be mala fide against facts and based on fraud, the examination of process-server was not necessary. The mere fact that the petitioner was served through registered post acknowledgement due on 12-10-1982 (this fact has been disputed by the petitioner). in addition to the ordinary personal service on 7-1C-1982, would not automatically extend the E period of limitation which had already started when the service was personally effected. Refer Madhub Lall Durgur v. Woopendrunarain Sen (1 L R 23 Cal. 573) wherein it was held that "as regards limitation, the only date to which reference could be made was the date shown in the Sheriff's return, and that the Court could not at the present stage of the case allow the defendant to show a state of things different from that appearing in his original petition."

8. The contention that the time was extended under section 148, C. P. C. is devoid of any force. Section 148 provides that where any period is fixed or granted by the Court for,the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. It would thus be seen that the scope of the section is applicable only where the Code of Civil Procedure bas fixed or granted for the doing of any act prescribed or allowed by it. It has no reference to the time fixed by the Limitation Act. Refer Messrs Tailors Priya v. 'Messrs Gulabchand Danraj (A I R 1963 Cal. 36 ) wherein it was held that the scope of Order XXXVII, rule 2; C. P. C. was not limited to negotiable instruments as defined under section 13 of the Negotiable Instruments Act, but also to all bills of exchange whether negotiable or non-negotiable. It was further held that where application for leave to defend the suit was not made within ten days from the date of the writ of summons, the leave must be refused and the trial Judge had no power to extend the time.

9. It may however, be observed that by virtue of the High Court amendments--Lahore dated 15-11-1928, the provisions of section 5 of the Limitation Act, were made applicable to an application under r. 3, sub-rule (1) of Order XXXVII, C. P. C. A similar amendment was also introduced vide section 14 of the Code of Civil Procedure (Amendment) Ordinance (IX o t 1980). The Court has, therefore, jurisdiction under section 5 of the Limitation Act to extend the time. Submission of an application, however, is condition precedent for vesting jurisdiction in the Court to condone the delay on sufficient cause being shown. No such application was moved by the respondent, therefore, the trial Court had no jurisdiction to grant leave to appear and defend even in the exercise of his power under section 5 of the Limitation Act. What is more astonishing is that no such application wash made even in this Court and in the absence of any such application, it cannot be determined whether there was sufficient cause for the respondent's delay in making an application for leave to appear and defend the suit. In view of the above, the impugned order of the trial Court dated 16-12-1982 is set aside and the revision petition is accepted with costs. M. Y. H.????????? Petition accepted.