SYED AFSAR SHAH, J.--- Through the instant Regular First Appeal, legality and validity of the order dated 4.9.2010 rendered by learned Addl. District Judge-III, Peshawar has been called in question at the instance of the appellants cited as defendants in the suit for the recovery of Rs,2,40,000/- instituted under Order XXXVII of the Code of Civil Procedure, whereby an application made at the instance of the appellants for leave to appear and defend the suit was dismissed by the learned trial court vide order impugned by maintaining that the application which was required to be made within ten days from the date of service was not made within the statutory period as envisaged by Article 159 of the Limitation Act from the date of service.
2. The facts leading to the filing of the present appeal as reflected from the plaint are that Israr-ud- Din, the respondent/plaintiff by availing the lease facility provided to him by Faisal Bank Ltd, purchased a motorcar which he later on transferred to the appellants/defendants for a sum of Rs,5,00,000/-, out of which an amount of Rs,2,50,000/- was paid in cash whereas for the remaining sum, appellant/defendant No,2 issued two cheques bearing No,CA-F 3803831 dated 14-04-2009 and CA-F 3803832 dated 14-04-2009 payable at Askari Bank Ltd., Peshawar Cantt: to the respondent/plaintiff which on presentation in the bank concerned were not honoured as the account for which the impugned cheques were issued has already been closed and it was in that background that the respondent/plaintiff while adhering to Order XXXVII, C.P.C. Knocked the doors of the court of Additional District Judge by filing the recovery suit.
3. Learned counsel appearing on behalf of the appellants while making reference to the copy of the summons argued that no doubt the process was issued in the name of the appellants being defendants on the prescribed summons meant for the suits to be instituted .Under Order XXXVII of the Code of Civil Procedure but nevertheless perusal of the report of process server reveals that Ahmad Shah, appellant/defendant No,1 was not served in person rather through his son. He went on to say that keeping in view the report of Process Server dated 7.7.2010 it is more than clear that copy of the plaint did not appear to have been sent along with the summons, hence the period of limitation of ten days prescribed for submission of the application for leave to appear and defend the suit under Article 159 of the Limitation Act, 1908 did not start.
' As against that learned counsel for the respondent/plaintiff argued that since in pursuance of the summons issued in their names by the learned trial court fpr 13.7.2010 the appellants/defendants who were also having the services of their counsel put their appearance, therefore, in the given circumstances they could not agitate the plea that at the time of their service they have not been given copy of the plaint because after their appearance in the court, they were bound to get copy of the plaint by themselves or through their pleader.
' Developing his arguments learned counsel for the respondent added that in view of the provision of Article 159 of the Limitation Act and again failure of the appellants to make a request for condonation of delay, their application for leave to appear and defend the suit was rightly dismissed by the learned lower 'court.
4. I have considered submissions of the learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.
5. There is no two opinion about the fact that the proceedings under Order XXXVII, rules 2 and 3, C.P.C. Are summary in nature and where the defendant does not submit an application for leave to appear and defend within the prescribed time, the allegations in the plaint shall be deemed to have been admitted and the suit so instituted shall be decreed. I am aware of the fact that at the same lime the court seized of the matter is not relieved of the responsibility to see and ensure before decreeing the suit that the person proceeded against was not only served but was also made to understand the nature of the proceedings. It was pre-eminently in this context that the Legislature in its wisdom prescribed a form for plaint and a form for the summons to be served on the defendant of such proceedings.
' In the present case, the suit was filed in the court of learned District Judge, Peshawar on 28.6.2010 and on the same day, it was entrusted to Additional District Judge-IV, Peshawar for disposal/further legal proceedings at that end. On receipt of the case/suit in his court, the learned Addl. District Judge issued summons to the appellants/defendants for 13.7.2010. On the date so posted in the court of learned Addl. District Judge the appellants/defendants put their appearance in the court along with their counsel. Vakalatnama placed on record further speaks about the same facts. Simple is that in pursuance of their service the appellants along with their counsel put their appearance in the court on 13.7.2010. So far as the service of the appellants in pursuance of which they put appearance in the court is concerned, copies of the summons are available on file and perusal of the same would show that appellant No,1 was served through his son herein appellant No,2 wherein he (appellant No,2) is stated to have been served personally. The appellants/defendants were served on 7.7.2010 for the date which is 13.7.2010. The service of the appellants have been made on Form 4 of Appendix B of the Code of Civil Procedum,-. However, copy of the plaint did not appear to have been sent along with summons as in this respect the report of the Process Server concerned is silent or for that matter there is no such report that the appellants have been served with a copy of the plaint. This very point has vehemently been agitated by the learned counsel for the appellants as he was of the view that if the copy of the plaint is not delivered to the defendant, he would be unable to know the nature of the suit and hence Article 159 of the Limitation Act will have no application. I think the learned counsel for the appellants has misconceived the situation in that the appellants have been served on 7.7.2010. The date fixed was 13.7.2010 and under the provision referred to earlier they ought to have filed their application for leave to appear and defend the suit within ten days of their service which was 17.7.2010.
' On 13.7.2010 the appellants along with their counsel put appearance in the learned lower court, whereafter, the case was fixed till 4.9.2010 for further proceedings on the said date and on which date the appellants filed an application for leave to appear and defend the suit. The pivotal question for determination before this court is to see as to whether the appellants were in the know that the respondent has filed a suit against them under Order XXXVII, C.P.C. Admittedly and as stated earlier copy of the plaint did not appear to have been sent along with summons but so far as the summons are concerned, these have bee n properly issued on Form 4 of Appendix B.
Anyway, the purpose of the legislation is that in view of the period of limitation which is ten days from the date of service, the parties should know about the proceedings. In the present case, when the appellants attended the court along with their counsel how they could say that they were not aware of the nature of the suit. When they were having the services of their counsel, they were supposed to know the nature of proceedings. Even if, the period of limitation is reckoned from the date of appearance of the appellants along with their. Counsel in the court on 13.7.2010 why they did not file application for leave to appear and defend the suit till 23.7.2010 if at all. They opted to file application for leave to appear and defend the suit on 4.9.2010 which is at very remote distance from the prescribed period for limitation. Moreover, the appellants have not filed even an application for condonation of delay as envisaged in section 5 of the Limitation Act. They have not given any explanation much less satisfactory as to why they did not seek leave to appear and defend the suit within the prescribed period. Rel. Manzoor Ahmad v. Muhammad lqbal (1994 SCM R 560) and Muhammad Ashraf Parwaz v. Prof Asghar Ali Naz (1995 SCM R 45).
' While going through the record of the case one could reach to an irresistible conclusion that the appellants have not been able to submit application for leave to appear and defend the suit within the period as envisaged in Article 159 of the Limitation Act and which position stands rightly appreciated by the trial court. Rel: "Naeem 'Oral v. Mst. Zarina" (1996 SCM R 1530),
6. In view of the above discussion, the appeal being without substance stands dismissed.