Law: Code Of Civil Procedure, 1908.

Section: 2, 3, 4 & 7, 1

Law: Limitation Act, 1908

Section: 159

Law: Financial Institutions (Recovery of Finances) Ordinance, 2001

Section: 10, 12

Law: Punjab Rented Premises Act, 2009

Section: 20, 22

Summary

A Larger Bench of the High Court resolved conflicting views regarding the procedure under Order XXXVII CPC and held that it is not obligatory for a defendant to file an application for leave to appear and defend simultaneously with an application for setting aside an ex-parte decree passed in a summary suit. Such obligation arises only after the ex-parte decree is set aside, whereupon the defendant must seek leave to appear and defend within ten days of the order restoring the suit.

The Court distinguished between:

• Ex-parte decrees (Rule 4, Order XXXVII CPC), and
• Ex-parte proceeding orders (Order IX Rule 7 CPC read with Order XXXVII),
• and clarified that limitation under Article 159 of the Limitation Act, 1908 begins only upon valid service of summons in the prescribed Form No.4, Appendix-B. Non-compliance with mandatory requirements of Order XXXVII CPC renders subsequent proceedings vulnerable.

Consequently, both F.A.O No.107 of 2019 and C.R No.901 of 2017 were allowed, and impugned orders dismissing applications merely due to absence of leave applications were set aside.