' ABDUL RASOOL MEMON, J.--- This appeal has been preferred' against the judgment dated 24-12- 2011 and decree dated 4-1-2012 in Summary Suit No,63 of 2011 passed by Vth Additional District Judge, Karachi South in favour of the respondent/plaintiff whereby the leave to defend application filed by the appellant/defendant was dismissed and the summary suit filed by the respondent/plaintiff was decreed as prayed.
2. Brief facts of the case as disclosed in the plaint are that the respondent had family terms with the appellant and at his request on 21-2-2009 the respondent gave him a loan to the tune Rs,600,000/- in presence of witnesses namely Shafaat Hussain and Mohammad Hanif; when the respondent demanded for return of the loan, the appellant issued him the Cheque No,PLS-4485258 dated 9-2-2010 drawn on Habib Bank Ltd. Civic Centre, Gulshan-e-Iqbal Branch, Karachi for Rs,600,000/-, but when the said cheque was presented on 10-2-2010 for encashment it was dishonored; the respondent again presented the said cheque to the bank on 16-2-2010 but it was again dishonored; thereafter on 30-4-2010 the appellant issued another Cheque No,7505022 to the respondent drawn on United Bank Ltd, Civic Centre, Gulshan-e-Iqbal, Branch in the sum of Rs,600,000/-, but this time the said cheque was not accepted by the Bank due to difference of signature. After repeated demands the appellant paid Rs,200,000/- to the respondent in the month of September, 2010, but the balance amount had remained unpaid; consequently the respondent filed Summary Suit No,63 of 2011 wherein on 19-10-2011 the appellant was served with the notice through bailiff and he filed an application for leave to defend on 2-12-2011 to which the respondent filed counter-affidavit and raised preliminary objection that the application for leave to defend had been filed after ten days of service of summons. The trial Court holding that the application for leave to defend was filed 42 days after service of the summons without an application for condonation of delay, therefore, it was time-barred and was dismissed and the suit of the respondent/plaintiff under Order XXXVII, Rules and 2, C.P.C. Was decreed as prayed with costs.
2-A. The learned counsel for the appellant has argued that the trial Court did not take into consideration the payment receipts duly acknowledged by the respondent. It is further contended that the appellant had filed a Suit No,1089 of 2011 for cancellation of the subject cheque. He has contended that service against the respondent was held good on 22-11-2011 and the application for leave to defend was filed on 2-12-2011 within ten days as required under Article 159 of the Limitation Act, 1908. Therefore the application for leave to defend filed by the appellant was within time and the trial Court has wrongly calculated the period of limitation. He has contended that for counting the limitation the Court has to consider the period from the date on which the service was held good and not from the date on which the alleged summonses were served upon the appellant. The learned counsel for the appellant further contended that the summons received by the appellant is not in accordance with the pro forma mentioned in Form-4 of Appendix-B the C.P.C., therefore, the question of computing the period of limitation under Article 159 for filing of leave to defend application does not arise. He has contended that the judgment of the trial Court is not in accordance with law and be set aside and the appellant may be allowed to defend the suit. In support of his contentions he has placed reliance on the case of ALI AKBAR v. GULZAR ALI SHAH (PLD 1984 Karachi 252)
3. On the other hand, learned counsel for the respondent argued that as per Article 159 of the Limitation Act leave to appear and defend the suit under summary procedure referred to in section 128(2)(f) or under Order XXXVII C.P.C., 1908 is only ten days and time will be counted from the date when the summonses were served upon the appellant/defendant and in the instant suit the summon was received by the appellant on 19-10-2011 and this fact is clearly mentioned in the diary dated 31-10-2011 and affirmed by the bailiff Saleem whose statement was recorded before the Presiding Officer of the said Court on 11-11-2011. He argued that service was held good by the trial Court on 2-11-2011 and that too was on the basis of receipt of summons by the appellant on 19-10- 2011. Therefore, on the very face of it the application for leave to defend is barred by limitation. In support of his contentions he has placed reliance on the following cases.
(1) Messrs ARK INDUSTRIAL MANAGEMENT LTD. v. Messrs HABIB BANK LIMITED (PLD 1991 SC 976),
(2) NATIONAL BANK OF PAKISTAN v. MESSRS ELEGZENDER and COMPANY and 2 others (PLD 1987 LAHORE 290)
(3) Messrs AHMAD AUTOS and another v. ALLIED BANK OF PAKISTAN LIMITED (PLD 1990 SC 497),
4. I have considered the arguments advanced by the learned counsel at bar and gone through the record of the case as well as the relevant law.
5. To ascertain whether summons of summary suit served upon the appellant was in accordance with the pro forma prescribed under rule 2 of Order XXXVII or otherwise, I have consulted the R&P and perused the pro forma of summons actually served upon the appellant which is reproduced as under:--- "To The Defendant above named ' Whereas plaintiff has instituted a Summary Suit under Order XXXVII, Rules 1 and 2, C.P.C. For recovery of Rs,4,00,000/- against you before this Court.
' You are hereby summoned to appear in this Court in person or by a pleader duly instructed and able to answer all Material questions relating to the suit, or who shall be accompanied by some person able to answer all such question on 31-10-2011 at 8-00 a.m. To answer the claim and as the day fixed for your appearance is appointed for the final disposal of the suit you must be prepared to produce on that all the witnesses upon whose evidence and all the documents upon which you intend to reply in support of your defence.
' Take notice that in default of your appearance on the day before mentioned the suit will be heard and determined in your absence.
' Given under my hand and the seal of this Court on 17th October, 2011."
6. It will be pertinent to reproduce rule Order XXXVII, C.P.C. Here which reads as under:--- "2. Institution of summary suits upon bills of exchange, etc.--- (1) All suits upon bills of exchange, 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" (underlining is mine)
' For convenience sake the pro forma provided in Form No,4 in Appendix B is also reproduced as under:--- "To ' Whereas has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908; for Rs, balance of principal and interest due to him as the of a of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you.
In default whereof the plaintiff will be entitled to any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs, and the sum of Rs, for costs together with such interest, if any from the date of the institution of the suit as the Court may order.
' Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit. (emphasis is mine)
7. Perusal of summons served upon the appellant does not indicate that the copy of the plaint was annexed with the said summons but is mentioned, as received by the appellant. Moreover, on perusal the two summonses it appears that the summons issued to the appellant though indicate that it was a suit of negotiable instrument under Order XXXVII; but the summonses does not mention the limitation for moving the Court within ten days from the date of service thereof. It may also not lost sight of the fact that when period of limitation under Article 159 of the Limitation Act to move an application for leave to appear and defend the suit under Order XXXVII is prescribed it would be just and proper, to ensure that on the date when the summonses are served upon the defendant, should be fully aware of the plaintiff's claim. Summonses issued to the defendant should be in the prescribed form which is intended to acquaint the defendant with the nature of claim and also to warn him of the limitations imposed upon his right of defence and the period within which application for leave to appear and defend the suit is to be filed. The object of prescribing the form of summons is that the defendant should know the nature of claim of the plaintiff and the service will be said to have been effected only if it positively brings the claim to the knowledge of the defendant. In the present case the summonses are silent about the period of limitation, therefore, the question of computing the period of limitation under Article 159 did not arise. In this respect reliance may be placed on case of ALI AKBAR v. GULZAR ALI SHAH (PLD 1984 Karachi 252), wherein it is observed as under:--- "Furthermore, the requirements of Order XXXVII, rule 2 should be complied with. The summons issued to the defendants should be in the prescribed form which is intended to acquaint the defendant with the nature of claim and also to warn him of the limitations imposed upon his right of defence and the period within which application for leave to appear and defend the suit has to be filed. Unless the summons is issued in the prescribed form and served there will be no proper service on the defendant and further proceedings in pursuance of service of such summons will not be legal and proper."
8. In view of my above discussion, the impugned order rejecting the application for leave to defend cannot be sustained consequently no decree could be passed. I therefore, allow the appeal, set aside the impugned judgment and decree and remand the case to the trial Court with directions to hear the appellant's application under Order XXXVII, Rule 3, C.P.C. Afresh on merits. There will be however no order as to costs.