'ATTAULLAH KHAN, J.- Muhammad Aamir has filed this appeal wherein he has challenged the order dated 14-5-2009 passed by the Additional District Judge-Ill D.L Khan vide which his applications for leave to defend and setting aside the ex parte proceedings were dismissed.
2. The brief facts are that a suit was filed by the respondent/plaintiff against the appellant for the sum of Rs,1,09,000 against the defendant/appellant and when summoned, the appellant failed to appear and thus he was proceeded against. Thereafter, he moved the same Court for setting aside the ex parte decree but in vain vide order impugned herein. Hence this appeal.
3. The main argument of the learned counsel for the appellant is that the learned trial Court did not issue any summons as required under Order XXXVll, Rule 2, C.P.C, nor he was ever served, therefore, the impugned order is not sustainable under the law.
4. In reply, learned counsel for the respondent argued that notice/summons have been properly issued and the proceedings before the Court below were strictly in accordance with law.
5. In order to solve the controversy, reference may be made to Order XXXVll. The relevant provision is reproduced below:- RULE 2. Institution of summary suits upon bills of exchange etc;
(1) All suits upon bills of exchanges, hundies, or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed, but the summons shall be in Form No,4 in Appendix-B or in such other form as may be from time to time prescribed"
(2)..
(3) In any case in which the plaint and summons are in such form respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. "
6. The above provision contained in Rul 2, Sub-Rules (1) and (3) provides that summons on the prescribed form shall beissued in the name of defendant and, thereafter, the defendant shall apply for leave to defend to the Court under sub- rule (2). In this case, we have to see whether the summons issued as prescribed above. On the record, three summonses are available, one issued on 15-10-2008, the second on 22-10-2008 and the third on 10-11-2008. The last summons issued show that the father of the defendant was informed but all the summonses do not contain the signatures of the defendant. According to case law and the provisions of C.P.C., copy of plaint must be annexed with the notice and in case the plaint is not annexed, it does not amount to proper service. Reference may be made to Taj Ali Khan v. Haji Muhammad Ali 2003 YLR 1130, the relevant portion whereof reads as under:- "6. Where it is not clear from the record that the appellant was served in accordance with the requirements of law and that he knew the nature of the proceedings lodged against him and the mechanism to defend which is always invariably disclosed in its summons, the judgments cited by the learned counsel for the respondents, I am afraid will have no relevance to the instant. "
7. Similar principles have been laid down in the cases of Zahoor Ahmad v. Asif Hussain 2001 M LD 1759 and Abdul Karim v. Nazir Ahmad PLD 1998 Lah.
163.
8. After examining the case in view of the case-law as well as the provisions of C.P.C, referred to above, I have come to the conclusion that no summons as prescribed under the law had been served upon the appellant. It is also not proved that the plaint was annexed with the summons and resultantly the defendant/ appellant was not in the know of nature of the case. The application for condonation of delay was also not required to have been filed without any rhyme or reason.
9. In view of the facts and circumstances of the case, this appeal is accepted the impugned orders are set aside and the case is sent back to the trial Court for decision afresh strictly in accordance with law. The parties are directed to appear before the learned trial Judge on 4-1-2010.