2007 YLR 2482 (PLP)

MIAN HAMID FAROOQ, J.

The respondent/plaintiff filed the suit for recovery of Rs.1,17,000, against the petitioner/defendant, before the learned District Judge under the summary procedure provided under Order XXXVII, C.P.C. on the basis of cheque. The learned trial Court issued summons to the petitioner, however' he could not be served. The petitioner appeared before the learned trial Court on 24-4-2007, but he filed the application for leave to appear and defend the suit on 5-5-2007. The learned trial Court after finding that the application for leave to defend the suit is barred by time, proceeded to dismiss the same, vide impugned order dated 5-5-2007, hence the present petition. Learned counsel for the petitioner contends that as the petitioner was not served and the copy of the plaint was not supplied to him, therefore, he was not legally obliged to file the application for leave to appear and defend the suit within a period of 10 days. He has further submitted that the period of 10 days fixed under Article 159 of Limitation Act starts from the date of service. He has relied upon Mansoor Textile Mills Limited, Shorkot through Syed Jamaat Ali Shah, Managing Director and another v. Jamail Akhtar Naseeb, Textile. Consultant, Faisalabad (2001 CLC 1065), Khurshid Alam v. Al-Khair Gadoon Limited through Legal Director (2003 YLR 2583) and Taj Ali Khan v. Haji Muhammad Ali (2003 YLR 1130).

3. I have heard the learned counsel and examined the available record. Admittedly, the petitioner could not be served through any of the modes prescribed under the law, he voluntarily appeared before the Court on 24-4-2007 and filed the application for leave to appear and defend the suit on 5-5-2007, thus the application filed by him was clearly barred by time. It is true that the petitioner was not served but it is equally true that he appeared before the Court on 24-4-2007 and therefore, the limitation period for filing leave application will at the most start from the date of his appearance i.e. on 24-4-2007. Article 159 of the Limitation Act provides a period of 10 days for filing application for leave to appear and defend the suit when the summons is served. It cannot be perceived that if summons could not be served and the defendant appears before the Court, the period of limitation would never start. In this case, to my mind, the period of limitation runs from the date, when the petitioner appeared before the learned trial Court. It may be noted that Article 159 of the Limitation Act does not provide that the period of 10 days for filing application for leave to appear and defend the suit will start from the date when copy of the plaint is supplied to a defendant. The learned trial Court has rightly held that the petitioner came to know about the institution of the suit on 24-4-2007, therefore, the application filed by him on 5-5-2007 was barred under Article 159 of the Limitation Act and was rightly dismissed.

4. In the above perspective, I have examined the impugned order and find that the learned trial Court while passing the impugned order did not commit any illegality or material irregularity, thus I am not inclined to interfere in the impugned order in exercise of revisional jurisdiction of this Court.

5. In view of the above, the present petition is devoid of merits, hence stands dismissed. H.B.T./M-337/L Petition dismissed.