' CH. IJAZ AHMAD, J.---Brief facts giving rise to the present appeal are that a promissory note was allegedly executed by respondent in favour of appellant on 14-1-1998. The respondent failed to discharge his liabilities in terms of the promissory note. The appellant filed a suit for recovery of Rs.8,50,000 on the basis of promissory note dated 14-1-1998 in the Court of District Judge, Faisalabad, which was fixed before the learned Additional District Judge on 27-1-2000. The following order was passed by the Presiding Officer:-- "Summons be issued in the form No.4 of Appendix 'B' to the defendant for 16-2-2000."
' The appellant failed to deposit the Process Fee. The Presiding Officer passed the order to issue notice to the respondent/defendant on 16-2-2000 for 1-3-2000. Notices were issued to the respondent/plaintiff. Substituted service was ordered in Weekly "Kehkashan" vide order dated 20- 3-2000 for 13-4-2000. Thereafter the case was fixed on 20-3-2000. Respondent/defendant did not enter appearance on 13-4-2000, therefore, ex parte proceedings were ordered against the respondent/defendant and the case was adjourned for recording ex parte evidence for 20-4-2000.
The respondent/defendant filed application for setting aside the ex parte order dated 13-4-2000 which was accepted with costs amounting to Rs.400 vide order dated 28-4-2000 by the trial Court on the statement of the counsel of the appellant who had given statement that ex parte order be set aside. Respondent filed application for leave to appear and defend before the trial Court on 13- 5-2000.
Thereafter the respondent filed application under section 5 of the Limitation Act for condonation of delay on 19-9-2000. Both the aforesaid applications were accepted by the trial Court vide order dated 29-6-2001. Thereafter the trial Court on account of divergent pleas of the parties framed the following issues:-- ' Issues
(1) Whether the plaintiff is entitled to recover Rs.8,50,000 from the defendant on the basis of promissory note dated 14-1-19.98? OPP
(2) Whether this Court has no jurisdiction to entertain this suit? OPD
(3) Whether the alleged promissory note does not fall in the definition of promissory note and receipt, if so, its effect? OPD
(4) Whether insufficient revenue stamp has been affixed on the promissory note and receipt, if so, its effect? OPD
(5) Whether the promissory note is without consideration, if so, its effect? OPD
(6) Whether the suit is premature in view of preliminary Objection No.7 of the written statement?
OPD
(7) Whether the suit of the plaintiff is frivolous, baseless and mala fide, if so, its effect? OPD
(8) Whether the suit is time-barred? OPD
(9) Relief.
' The trial Court dismissed the suit vide judgment and decree dated 25-10-2000.
2. The learned counsel of the appellant submits that the respondent/ defendant failed to file application for leave to appear and defend the suit within prescribed period of 10 days under the provisions of C.P.C. i.e. Order XXXVII, C.P.C., therefore, the trial Court erred in law to entertain the application of the respondent/defendant to appear and defend the case. Further submits that the application of the respondent/defendant for setting aside ex parte order dated 13-4-2000 is also not maintainable as the respondent/ defendant did not secure an order from the Court to appear and defend the suit under the provisions of C.P.C., therefore, basic order is without lawful authority.
Further submits that it was in the knowledge of respondent/defendant that appellant has filed suit against the respondent for recovery on the basis of promissory note on 28-4-2000. The respondent/defendant filed application for leave to appear and defend the suit on 13-5-2000 without filing an application under section 5 of the Limitation Act which was filed on 19-9-2000, therefore, the order dated 29-6-2001 is without lawful authority and this fact was not considered by the trial Court in the impugned judgment. Further submits that the impugned judgment is the result of misreading and non-reading of evidence. Further submits that execution of the promissory note was admitted by the respondent/defendant and the trial Court did not frame proper issues on the divergent pleas of the parties that the promissory note was executed under duress by the respondent and the appellant has secured the execution of the promissory note with the connivance of the police, therefore, the impugned judgment is without lawful authority and result of misreading and non-reading of evidence. Further submits that nobody is penalized by the act of the Court.
3. Learned counsel of the respondent submits that ex parte order was set aside on the statement of the counsel of the appellant as is evident from order dated 28-4-2000, thereafter, appellant did not agitate order dated 28-4-2000 before this Court, therefore, it has attained finality and appellant has no legal right to challenge the same on the well-known principle of approbate and reprobate.
He further submits that appellant did not challenge the vires of the order till date, therefore, the plea of the appellant is not tenable in the eye of law. Further submits that respondent/defendant has taken a specific plea in para.6 of the application under section 5 of the Limitation Act to the effect that the copy of the plaint was not supplied to the respondent/defendant but this fact was not denied by the appellant in the reply of the application, therefore, impugned order dated 29-6- 2001 is valid in the eye of law. Further submits that the trial Court has passed the order after proper appreciation of evidence, therefore, appeal is liable to be dismissed.
4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record also.
5. It is better and appropriate to reproduce relevant facts in chronological order to resolve the controversy between the parties.
6. Promissory note was executed allegedly on 14-1-1998. Suit was filed on 27-1-2000 by the appellant/plaintiff against the respondent. Ex parte- proceedings were ordered on 13-4-2000 which was set aside by the trial Court on 28-4-2000 on the conceding statement of the learned counsel of the appellant. Respondent filed application for leave to appear and defend the suit before the trial Court on 13-5-2000 and also filed application under section 5 of the Limitation Act on 19-9-2000. The aforesaid applications were accepted by the trial Court on 29-6-2001. It is better and appropriate to reproduce para.6 of the application under section 5 of the Limitation Act and reply of the appellant/plaintiff. {{URDU TEXT}} ' Reply to para.6 is reproduced as under:-- {{URDU TEXT}} ' Also relevant paragraph No.(ii) of application under Order XXXVII(3), C.P.C. To appear and defend the suit and its reply are reproduced as under for the purpose to resolve the issue in question:-- {{URDU TEXT}} ' The trial Court framed the aforesaid. Issues in view of the divergent pleadings of the parties. The suit was dismissed vide judgment and decree dated 25-10-2000. In case the aforesaid facts are put in juxtaposition, it is crystal clear that the respondent has taken definite stand in the application that the respondent/ defendant has not received copy of the plaint which was received by him on 13-5-2000 and application for leave to defend was filed by him before the trial Court on 13-5-2000, therefore, the trial Court was justified to entertain the application of the respondent /defendant that it was not time-barred and leave to defend was granted which is in consonance with the law laid down by the Superior Courts In arriving to this conclusion, we are fortified by the law laid down in "Abdul Karim's" case PLD 1998 Lahore 163. It is an apparent fact that the citation was published in weekly Kehkashan which almost has no circulation in Faisalabad. As is evident from the record of the lower Court, the appellant failed to bring on record any sufficient material to show that the proclamation was received by the defendant/respondent, therefore, trial Court was justified to set aside the ex parte order. In arriving to this conclusion, we are fortified by the law laid down by the superior Courts in the following judgments:-- ' Muhammad Faryad's case PLD 1993 Lahore 469.
' Muhammad Akbar Sheikh's case PLD 1997 Karachi 584.
' Ghula.m Muhammad's case 1987 CLC 1156.
It is pertinent to mention here that dispute is between the two private parties with regard to promissory note executed by respondent in favour of the appellant. Order XXXVII, rule 2 prescribes procedure according to which summons are to be issued to defendant along with a copy of plaint.
There is no evidence on record to show that any summons was received by the respondent/defendant along with copy of plaint, therefore, trial Court was justified to accept the application filed by the respondent/defendant under section 5 of the Limitation Act. Even otherwise as mentioned above, copy of the plaint was received by the respondent/ defendant on 13-5-2000.
The respondent/ defendant has filed application for leave to defend before the trial Court on the same clay, therefore, application was within time. In arriving to this conclusion, we are fortified by the law laid down in the judgments ' Ali Akbar's case PLD 1984 Karachi 252 ' Muhammad Amin's case 1986 CLC 2236 ' Altaf Hussain's case 1990 MLD 1258 ' Abdul Ghafoor's case 1989 MLD 3954 ' Abdul Ghani's case 1994 MLD 1117 ' Zahoor Ahmad's case 2001 MLD 1759 The ratio of aforesaid cases is that summons must be accompanied along with copy of the plaint which is requirement of Order XXXVII, rule 2, C.P.C. Read with Form No.4 of Appendix B, prescribed in C.P.C. In the schedule. The application of the respondent/defendant was not time-barred and the contention of the learned counsel of the appellant that respondent/ defendant has filed application for condonation of delay after filing application for leave to appear and defend has also no force in view of the law laid down by Karachi High Court in Messrs United Bank Limited's case 1988 CLC 292.
It is settled principle of law that nobody should be penalized by the act of the Court as per law laid down in Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others PLD 1975 Lahore 7. In case the pleadings of the parties be put in the juxtaposition, then the trial Court failed to frame the issue relating to the controversy between the parties, therefore, the appellant is non-suited on a technical ground without F providing opportunity to the appellant/ plaintiff to rebut the allegations levelled by the respondent/defendant in the application that the promissory note was got executed by the appellant from the respondent/ defendant under the influence and connivance of the police. It is appropriate to reproduce para.8 of the written statement to resolve this controversy:.-- {{URDU TEXT}} ' This fact brings the case in the area that the trial Court has dismissed the suit without application of judicial mind which is not in consonance with the law laid 'down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173.
7. In view of what has been discussed above, we uphold the leave granting order of the trial Court and set aside the impugned judgment and decree by framing following additional issues:- "Whether the promissory note was got executed by the plaintiff from the respondent with the connivance/undue influence of the police or not, if so, its effect? OPD ' Parties are directed to appear before the trial Court on 28-6-2005. The trial Court is directed to allow the parties to lead their evidence to the extent of additional issue and thereafter decide the case as expeditiously as possible.