MUHAMMAD SALEEM JESSAR, J.----Through this Civil Revision Application the applicant has challenge Order dated 23.12.2017 passed by learned XIth Additional District Judge, Karachi East in Summary Suit No.39/2017, whereby he dismissed application for leave to appear and defend the suit filed by applicant Syed Azhar Hussain Rizvi.
2. Precisely, the facts giving rise to the filing of this Civil Revision are; that respondent No 1 filed a summary suit stating therein that the Applicant is running his garment factory under the name and style of Messrs N.R Industries since 18 February 2013 and has developed a good will in the market over the last 5 years. The Applicant is the proprietor of the said business and is reputed amongst his market. Respondent No.1 is a cloth merchant and a supplier of raw clothes and he used to purchase the material from Respondent No.1 since 2014 and the payment was through cash and cheque both. It is submitted that the Applicant issued advance cheques which were encashed by respondents No. 1. It was further asserted that in the year 2016, the Applicant issued blank cheques as per usual practice. In all eight cheques were issued and the payment had been made vide voucher dated 20-7-2016 of a total amount of Rs.30,00,000/- (Rupees Thirty Lac only) which had been encashed and duly cleared which fact is evident from the statement of account. His grievance was that Respondent No.1 dishonestly and malafidely, with ill motives presented the cheques after a year, which were dishonoured, consequently he filed a Summary Suit bearing No. 39 of 2017 under Order XXXVII, C.P.C. before the District and Sessions Judge, Karachi East which was transferred to Respondent No.2. It was further stated that separate FIRs 'were also lodged by Respondent No.1 in order to harass the Applicant, which are pending before the Magistrates having the jurisdiction for adjudication and the Applicant is facing trial. Summons of the said summary suit were served upon the Applicant through Judicial Magistrate No. 28 and on 30.08.2017, Applicant's counsel filed Vakalatnama and obtained copy of the plaint and as per diary sheet the said date, learned Respondent No.2, granted time of 10 days and fixed the case on 09.9.2017 for filing Application for leave to appear and defend the suit. He further stated that applicant without any delay filed the application for leave to defend which was heard by Respondent No. 2 and the same was dismissed by vide impugned order, hence the Applicant preferred instant Civil Revision.
3. Learned trial Court vide impugned order dismissed the said application on the sole ground that the application for leave to appear and defend the suit was barred by limitation as the same was filed after a delay of two days. The applicant has challenged the said order in the instant revision application.
4. I have heard the arguments advanced by learned counsel for the parties and perused the material available on the record.
5. Learned Counsel for the applicant submitted that proper course for service as prescribed in Civil Procedure Code was not adopted, therefore, the impugned order declining the applicant from his appearance to defend the suit vide impugned order dated 23.12.2007 was not warranted by law. She next submitted that summon was served upon the applicant on 29.08.2017 through learned Judicial Magistrate where criminal case filed by the Respondent No.1 was pending; however, on 30.08.2017, Counsel for the applicant filed his Vakalatnama and received the copy of the plaint, therefore he filed application for leave to appear and defend the suit on 09.09.2017 which was fixed by the court for the said purpose. Hence, the application was filed within time and the same was not time barred. In support of her contention, she placed reliance upon the cases reported as Zahoor Ahmed v. Asif Hussain (2001 MLD 1759), Asif Nadeem v. Messrs Bexshim Corporation and others (2001 CLC 653) and Muhammad Yasin v. Sheikh Muhammad Pervaiz (2012 CLC 1141). She further submitted that since the applicant was not at fault nor the leave to defend application was time barred, therefore, there was no need to file condonation application in terms of Section 5 of Limitation Act, 1908. She prayed that by allowing revision application, impugned order may be set-aside and the applicant may be permitted to appear and contest the suit before the trial Court.
6. Conversely, learned Counsel for Respondent No.1 submitted that summon was served upon him through Magistrate on 29.08.2017 and it is not mandatory that limitation would commence from the date of providing copy of the plaint. Per learned counsel, limitation starts from the date of service of summons. He next submitted that although he was served on 29.08.2017 but he filed application for leave to appear and defend the suit on 09.09.2017 i.e. after a delay of about two(2) days. He further contended that even the applicant did not file proper condonation application before the trial Court, hence impugned order does not suffer from any illegality.
He prayed for dismissal of revision application. In support his contention, he placed reliance upon the cases reported as Mian Muhammad Amjad Amin v. Rana Bashir Ahmed (2004 MLD 938), Ahmed Shah v. Israr-ud-Din (2016 CLC 1100) and Manzoor Ahmed v. Muhammad lqbal (1994 SCMR 560).
7. The only point to be determined in this Revision Application is; as to whether the application filed by the applicant for grant of leave to appear and defend the suit was barred by limitation or not, as learned Additional District Judge, Karachi, East, has dismissed the said application on the sole ground that the said application was time barred having been filed with a delay of two (2) days.
8. In this connection, the stand taken by respondent No.1 / plaintiff is that the summons of summary suit filed by him was served upon the applicant / defendant on 29.08.2017 through learned 28th Judicial Magistrate, Karachi East where Criminal Cases Nos.565/2017 and 566/2017 were pending against the applicant / defendant under section 489-F, P.P.C. According to him, despite service of notice, the advocate for the applicant filed his Vakalatnama on the next date i.e. 30.08.2017 and received copy of plaint along with its annexures; however, he filed application to appear and defend the suit on 09.9.2017 i.e. after a delay of two days without moving any application for condonation of such delay. According to learned counsel for respondent No.1 / plaintiff, the period of limitation would commence from 29.8.2017 when the applicant received the summons through the Judicial Magistrate.
9. On the other hand, the plea taken on behalf of the applicant / defendant is that although the applicant received the summons of the summary suit on 29.8.2017; however, he received the copy of the plaint on 30th August, 2017, as such he filed the application for leave to appear and defend the suit within time i.e. on 09.9.2017.
10. From the perusal of the record it appears that on 19th August, 2017 when the suit was fixed in the Court, learned trial Court ordered for issuance of notice to the defendant/applicant through learned XXVIII-Judicial Magistrate, Karachi East and case was adjourned to 30.08.2017. When the case came up in court on 30.08.2017 following order was passed: "P.O. is on Ex-Pakistan leave. Case called. Advocate for plaintiff is present. Notice returned served through trial Court JMNo. 28, East. Mr. Aamir Tabbasum, advocate filed power on behalf of defendant and received copy of plaint. Put to 09.9.2017 for filing of leave to defend."
11. From above case diary, it is clear that the copy of plaint was received by advocate for the applicant/defendant on 30th August, 2017. Even this fact has been admitted by respondent No.1/plaintiff himself in para 3 of his counter affidavit filed in this Revision Application on 23.04.2018 wherein he, inter alia, stated, "The applicant did not appear on the same day but engaged Advocate who filed his Vakalatnama on 30-08- 2017 and so also received the copy of plaint along with annexures...." Needless to emphasize that the notice under Order XXXVII, Rule 2, C.P.C. for filing application for leave to appear and defend the suit is to be served upon the defendant in Form No.4 of Appendix 'B' to the C.P.C. which requires that a copy of plaint shall be annexed to the notice. In the instant case, admittedly the copy of plaint was received by the applicant/defendant on 30th August, 2017, as stated above.
12. Another worth-importance factor in this case is; that case diary dated 30.08.2017 shows that the trial Court itself fixed the case on 09.9.2017 "for filing of leave to defend", and the applicant / defendant in compliance with the said order filed application for leave to appear and defend the suit on the said date i.e. 09.9.2017. In this connection reference may be made to a judgment of Peshawar High Court passed in the case reported as Zahoor Ahmed v. Asif Hussain (2001 MLD 1759) wherein, while dealing with almost same situation as prevailing in the instant case, it was held as under: "The notice on the original file bears the endorsement of process-server Muhammad Asif on the back thereof, which indicates that though the defendant/appellant was not served in person yet the copy of the notice was delivered at his residence on 5-2-1999. The endorsement speaks of the copy alone and not the copy of plaint along therewith, whereas, the notice issued in Form No.4 in Appendix B to the C.P.C., would require that a copy of plaint shall be annexed to the notice and be, therefore, delivered to the defendant. Provenly no copy of the plaint is delivered to the defendant and hence the service of notice is in violation of the law laid down in Order XXXVII, Rule 2, C.P.C. The defendant cannot be punished in the circumstances and no limitation, particularly with reference to the alleged date of service would run against him (PLD 1984 Karachi 252- A) and (PLD 1998 Lahore 161).
3. The law enacted under Order XXXVII, C.P.C. calls for summary proceedings and hence is a stringent law against the defendant. The harsher a law against the defendant or an accused, the more stringent should be the provisions of law construed against the plaintiff or the prosecution. In the present circumstances, the learned District Judge should either not have considered the petition to be time-barred or even if so, he should have condoned the delay (which it is not) under section 5 of the Limitation Act, which is clearly applicable under Order XXXVII, Rule 3(3), C.P.C. Even if, we consider 16.2.1999, as the date of notice because the defendant appeared in Court on that date yet a limitation would not be counted because the service is in violation of Order XXXVII, Rule 2 read with Appendix, B to the C.P.C. Still the defendant was supposed to file petition for leave to defend on or before C 26-2-1999 but the Court itself on 22-2-1999 fixed the date for petition for leave to defend as 1-3-1999. The Court should also have kept the limitation in consideration and should have fixed the date on or before 26-2 1999. The defendant is damaged by the act of Court as well, and the Courts, in the circumstances should also apprise the defendants of the period of limitation because mostly the people are ignorant and not accompanied by a counsel, as it happened in the present case."
13. There are also other judgments of the Superior Courts wherein, inter alia, it has been held that the limitation for filing application for granting leave to appear and defend the suit begins from the date of receiving the copy of plaint. In the case of Mohammad Yasin v. Sheikh Mohammad Pervaiz reported in 2012 CLC 1141 [Lahore] it was held by a Division Bench of Lahore High Court as under: "The bare reading of the Form 4 forces to this irresistible conclusion that it is mandatory that besides accompanying the plaint, the summons must reflect the principal amount due, the interest thereon and also cost upon the defaulting party, thus forewarning him of penal consequences in case of non-compliance. The underlying purpose of this summons is also to intimate the defendant of his rights in law and also bringing to his notice that the suit is under special provisions of law, meaning thereby, these provision of law entail different/dire legal implications as compared to ordinary course of defence in a suit. Unless the form 4 along with plaint is not served upon the appellant, the basic requirement of law cannot be presumed to have been fulfilled. So, it is not only the duty of the Court to issue the summons but also the Court is obligated to issue summons according to the Form 4, so that the defendant should attend the Court proceedings with a prepared mind as intended by the summary trial under Order XXXVII, C.P.C. Unless this information is not conveyed to the defendant in the required mode and manner, no delay or default can be attributed about availing the remedy i.e. filing of application for leave to defend within limitation provided under the law. In short, the summon/form 4 is not an ordinary notice, it has some special intention and rationale behind it, differentiating it from an ordinary trial.
Since the suit under Order XXXVII, C.P.C. is a summary procedure, this special Form 4 has been specially formulated wherein not only a plaint must have been attached so as to notify the defendant about the pendency of the case but also inform him through this Form 4 that he has only specified (limited) period to approach the Court for getting the permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto. Nevertheless, the subsequent interim order of the Court does not represent that any warning for seeking the leave to defend or handing over the copy of plaint to the defendant has been issued. Moreover, it has been noticed that learned trial Court directed the appellant/defendant to file the written statement, which amounts to creating confusion and this omission on the part of the learned trial Court is the main cause of filing of application for leave to appear and defend the suit in the Court, out of time. Had the learned Court warned the appellant/defendant by handing over the copy of the plaint for filing of leave to defend as required by law, the position would have been altogether different. The appellant has been victim of the act of the Court, which furnishes sufficient cause for condonation of delay. Therefore, the filing of application for leave to appear and defend the suit on 10.1.2010 cannot be held to be time- barred due to the negligence on the part of the appellant/defendant alone.
7. It is noticed that the report of process sever reflects that only Perth of summons has been handed over, meaning thereby neither the plaint was attached with the summons nor it was delivered to the appellant/defendant. So the requirement of law has not been fulfilled as such the penal clause does not attract, hence the declaration of the application of the appellant to be time-barred was not within the jurisdiction of the learned trial Court, therefore, the decree is nullity in the eye of law as the learned trial Court has failed to exercise the jurisdiction vested in it.
8. For what has been discussed above, we have come to this convincing conclusion that the basic provisions of law have been violated by the learned Trial Court and the defendant/appellant alone cannot be made to undergo penal consequences in the face of contributory negligence on the part of Court. It is settled law that no person should suffer for act or omission of Court and act of Court should not prejudice anyone.
Reliance is placed on (2005 SCMR 720) Mian Muhammad Talha Adil v. Mian Muhammad Lutfi."
Yet in another case reported as Asif Nadeem v. Messrs Bexshim Corporation and others (2001 CLC 653) it was held by this Court as under: "The learned counsel for the applicant has maintained that the defendant's application was filed beyond 10 days from the date of summons but for the purpose of limitation time would start running from the day when the copy of the plaint was supplied to the defendant. In this case, the copy of the 'plaint was supplied under the Court direction and the application was filed within 10 days. In support of his contention, he referred the cases of Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252 and Aziz Ahmed v. Ashraf 1991 CLC 1261".
14. In the instant case also the trial Court itself fixed 09.9.2017 for the purpose of filing application for grant of leave to appear and defend the suit, therefore, the applicant was made to understand that filing of such application by 09.9.2017 would not be hit by any law including law of limitation. It is settled principle of law that for the fault of court party should not be penalized. In the case of Zahoor Ahmed (supra) while dealing with similar situation it was held as under: "....Still the defendant was supposed to file petition for leave to defend on or before C 26-2-1999 but the Court itself on 22-2-1999 fixed the date for petition for leave to defend as 1-3-1999. The Court should also have kept the limitation in consideration and should have fixed the date on or before 26-2-1999. The defendant is damaged by the act of Court as well, and the Courts, in the circumstances should also apprise the defendants of the period of limitation because mostly the people are ignorant and not accompanied by a counsel, as it happened in the present case."
15. In the case of Muhammad Yasin (supra) also, while dealing with similar situation, it was held as under: "... Moreover, it has been noticed that learned trial Court directed the appellant/defendant to file the written statement, which amounts to creating confusion and this omission on the part of the learned trial Court is the main cause of filing of application for leave to appear and defend the suit in the Court, out of time.
Had the learned Court warned the appellant/defendant by handing over the copy of the plaint for filing of leave to defend as required by law, the position would have been altogether different. The appellant has been victim of the act of the Court, which furnishes sufficient cause for condonation of delay. Therefore, the filing of application for leave to appear and defend the suit on 10.1.2010 cannot be held to be time-barred due to the negligence on the part of the appellant/defendant alone. .....................................................
8. For what has been discussed above, we have come to this convincing conclusion that the basic provisions of law have been violated by the learned Trial Court and the defendant/appellant alone cannot be made to undergo penal consequences in the face of contributory negligence on the part of Court. It is settled law that no person should suffer for act or omission of Court and act of Court should not prejudice anyone.
Reliance is placed on (2005 SCMR 720) Mian Muhammad Talha Adil v. Mian Muhammad Lutfi."
16. In my humble opinion, the dictum laid down in the above-quoted judgments relied upon by learned counsel for the applicant is fully applicable to the instant case as almost same facts and circumstances exist in the instant case like the cited cases.
17. So far as the provisions of Article 159 of the Limitation Act are concerned, no doubt it is provided in the said Article that the limitation for filing application for leave to appear and defend the suit begins when the summons are served; however, apparently it is mandatory requirement that the summons must be served in a proper manner as prescribed under the law i.e. in accordance with Form 4 of Appendix 'B' of Civil Procedure Code which clearly provides that a copy of plaint should be annexed with the summons and if it is not done, the service cannot be held good. In other words, if copy of plaint is not annexed with the summons, then service could only be held good as soon as copy of the plaint is supplied to the defendant which, in the instant case, was supplied to the defendant on the next date i.e. 30th August, 2017 on which date the trial Court fixed the case on 09.9.2017 "for filing of leave to defend" and the applicant / defendant complying with the direction of the trial Court filed the application on the said date. Needless to refer to the settled principle of law that when a thing / act is required to be done in a specific manner, it should be done in that very manner and not otherwise.
18. The case-law relied upon by the learned counsel for respondent No.1 i.e. Mian Muhammad Am/ad Amin v.
Rana Bashir Ahmed (2004 MLD 938), Ahmed Shah v. Israr-ud-Din (2016 CLC 1100) and Manzoor Ahmed v.
Muhammad Iqbal (1994 SCMR 560) are not attracted to the facts and circumstances of the instant case. In the first case of Mian Mohammad Amjad Amin (supra) while holding that the limitation for filing application for leave to appear and defend the suit commences from the date of service of summons, the provisions of Form No.4 of Appendix 'B' of C.P.C. have not, at all, been discussed which is the bone of contention in the instant case. As regards the second case of Ahmed Shah (supra), .suffice it to observe that the said case was decided by a learned Single Judge of Peshawar High Court which cannot be given preference over a D.B. decision relied upon by the learned counsel for the applicant.. Even otherwise, the facts of the said case relied upon by learned counsel for respondent of and that of the instant were altogether different. So far as the third case of Manzoor Ahmed (supra) is concerned, although the said case decided by Honourable Supreme Court, but the said case is distinguishable for the simple reason that in the said case honourable Supreme Court itself observed, "Neither before the trial Court nor the High Court any plea was taken that a copy of the plaint had not been supplied with the summons served by the Court on the appellant's son. Had such a plea been taken before the trial Court, the further question would have arisen whether service had been effected legally or not entitling the appellant to an extension of limitation for filing petition for leave to defend." From such observations of honourable Supreme Court, it is crystal clear that if a copy of plaint is not supplied along with summons to the defendant, he would be entitled to extension in time for filing application for leave to appear and defend the suit.
In this view of the matter, this case is also of no help to respondent No. 1/plaintiff, rather it goes in favour of the applicant/defendant.
19. In view of above, instant revision application is allowed and the applicant / defendant is granted leave to appear and defend the suit, of course, subject to such conditions as may be imposed by the trial Court surely in accordance with the law. The matter is remanded back to the trial Court for proceeding further on merits.