Raheel Kamran, J. By short order dated 29.06.2021, the titled Civil Revision was allowed in the following terms: "For reasons to be recorded later, this civil revision is allowed. The petitioner shall file his leave to defend in the court of the learned Additional District Judge, Nankana Sahib within ten days from today."
2. Facts in the background are that the respondent filed a suit in the court of learned District Judge, Nankana Sahib under Order XXXVII of the Code of Civil Procedure, 1908 ("C.P.C.") against the petitioner for the recovery of Rs. 1700,000/- ("Suit") on the basis of cheque No.07608693 dated 20.04.2020 allegedly issued by the petitioner for the return of a loan that was dishonoured on presentation. In the instant case, before availing his civil remedy in the Suit, the respondent got registered a criminal case being F.I.R. No. 312/20 dated 14.08.2020 at Police Station City Nankana Sahib for the offence of dishonestly issuing a cheque, under Section 489-F of the Pakistan Penal Code, 1860 ("P.P.C"), and got the petitioner arrested in the aforementioned case. The suit was filed on 04.11.2020 when special summons were ordered to be issued to the petitioner. When summons were not returned on 07.12.2020, nor acknowledgment of registered post was presented in the Court, summons were ordered to be repeated on residential address of the petitioner and upon being informed about his incarceration, the Superintendent of District Jail, Shaikhupura was directed to produce the petitioner in the Court on 19.12.2020. On his production in the Court on 19.12.2020, attendance of the petitioner was marked and he was informed that he could file his application for leave to defend the Suit within ten days. On 24.12.2020, when the Petitioner was not produced in the Court, the case was adjourned to 05.01.2021 for filing of the application for leave to defend the Suit. The jail authorities were also directed to produce him on the date fixed. Finally, on his production in the Court on 05.01.2021, when the Petitioner did not file any application for leave to defend the suit, his right of filing the application for leave to defend was closed by the learned Additional District Judge, Nankana Sahib, which has been assailed in the titled Civil Revision.
3. Learned counsel for the petitioner has stated that the impugned order has been passed without satisfying the mandatory requirements of rule 2 of Order XXXVII C.P.C. inasmuch as the petitioner was never served the notice prescribed in the Schedule along with a copy of the plaint in the Suit filed by the respondent enabling him to prepare and file his application for leave to defend; that the petitioner was produced from jail in handcuffs and he was not allowed even to talk with any person; that the petitioner was resident of Muridke (as evident from his CNIC, a copy whereof is appended with the titled Civil Revision) whereas he was confined in District Jail Sheikhupura where he was neither allowed to contact any of his relatives nor engage a counsel; that the impugned order has been passed in violation of his constitutional guarantees and fundamental rights embodied in Articles 4 & 10A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").
4. Learned counsel for the respondent, on the other hand, supported the impugned order dated 05.01.2021 while stating that the same has been passed in accordance with law on failure of the petitioner to file his application for leave to defend within ten days period of limitation prescribed by law; that the petitioner was produced from the jail on 19.12.2020 and asked to file his application for leave to defend within 10 days and the impugned order was passed only on the failure of the petitioner after affording him the opportunity he was entitled in law; that the limitation of ten days period for filing of the application for leave to defend was mandatory and the learned Additional District Judge, Nankana Sahib was possessed of no discretion to extend that in any manner; that the order impugned is quite lawful and the same does not suffer from any illegality, material irregularity or jurisdictional defect warranting interference by this Court in its revisional jurisdiction.
5. Arguments heard, record perused.
6. Order XXXVII of the C.P.C. provides a summary procedure for suits filed, inter alia, on the basis of negotiable instruments. Rule 2 of Order XXXVII provides:
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 4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear and defend the suit unless he obtains leave from a judge as herein after 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--
(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be of the Negotiable Instruments Act, 1881, up to the date of institution of the suit, or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and
(b) for such subsequent interest, if any, as the Court may order under section 34 of this Code; and
(c) for such sums for costs as may be prescribed: Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way.
(3) A decree passed under this rule may be executed forthwith.
7. Form 4 in Appendix B has been prescribed in the following terms: SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O.37, r.2)
(Title)
To (Name, description and place of residence)
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 is 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 at any time after the expiration of such ten days to obtain decree for any sum not exceeding the sum of Rs. and the sum of Rs. for costs.
Leave to appear and defend 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.
Given under my hand and the seal of the Court, this day of 20.
Judge
8. Article 159 of the Limitation Act, 1908 prescribes ten days period of limitation for leave to appear and defend a suit under summary procedure referred to under Order XXXVII of the Code to run from the date when the summons are served.
9. Rule 2 of Order XXXVII provides that all such suits are to be instituted by presenting a plaint in the prescribed form, although no form for the plaint has been prescribed. This rule further provides that summons shall be in Form No.4 in Appendix B? or in any other prescribed manner. A summon in the Form 4 informs a defendant to obtain leave from the court within ten days from the service thereof, to appear and defend the suit and in default the plaintiff will be entitled to obtain a decree.
Service of summons in the aforementioned Form is a mandatory requirement of law and the period of limitation of ten days prescribed for filing the application for leave to appear and defend the suit starts from the date of service of such summon. It is nowhere recorded in the order-sheet that the petitioner has been served summon in the prescribed Form 4 in Appendix `B', therefore, the mandatory requirement of law stipulated in rule 2(1) of Order XXXVII C.P.C. has never been complied with in this case.
10. One of the objects of service of summons in the prescribed Form 4 in Appendix `B' is to warn the defendant in a suit under Order XXXVII C.P.C. about the consequences of his default to apply for the leave to appear and defend within the prescribed period of limitation. From perusal of the order dated 19.12.2020, it is manifest that although the learned Additional District Judge, Nankana Sahib informed the petitioner that he may file his application for leave to appear and defend the Suit, however, no warning was given to the petitioner regarding consequences of his default. Therefore, the said purpose or object of the service of summon in the prescribed Form cannot be said to have been achieved in this case even otherwise than the service of such summon on the petitioner.
11. Likewise, to enable a defendant to prepare and file his application for leave to appear and defend the suit under Order XXXVII, delivery of a copy of the plaint along with a summon in the prescribed Form 4 in Appendix `B 'is part and parcel of the requirement of rule 2(1) of Order XXXVII C.P.C. This is manifest from the language of the summon in the prescribed Form. It must be borne in mind that Order XXXVII provides a summary procedure, inter alia, for a suit based on negotiable instrument, whereby the defendant is not entitled to appear and defend the suit unless he has obtained a leave within ten days of the service of summon. When such a limitation has been placed on the right of a defendant, it is just, proper and mandatory to ensure that on the date when the summon is served on the defendant, he should be made fully aware of the plaintiff's claim and the nature of the suit by serving a copy of the plaint along with annexures thereto otherwise he may not be able to move the machinery expeditiously for obtaining leave to defend1 2 3 the suit.4 Nothing has been placed on record to show that in this case the petitioner was ever provided a copy of the plaint along with its annexures to enable him to prepare and file an application for leave to appear and defend the Suit.
12. It is trite law that when neither a summon in the prescribed Form has been served nor a copy of the plaint in the Suit has been delivered to a defendant, the question of computing limitation under Article 159 of the Limitation Act, 1908 does not arise. For the reasons stated herein above, the petitioner has been apparently non-suited on 05.01.2021 without establishing service of summon on him, as required under Article 159 of the Limitation Act, 1908, and without satisfying the mandatory requirements of law prescribed in rule 2 of Order XXXVII C.P.C.
13. To enjoy the protection of law and to be treated in accordance with law is inalienable right guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").
From the above discussion, it is manifest that the Petitioner has not been provided the opportunity promised to him by law to move his application for leave to appear and defend the Suit.
14. Turning now to the other plea of the Petitioner regarding violation of his fundamental right to fair trial as guaranteed by Article 10A of the Constitution. The said Article provides: 10A. Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
The text of the above fundamental right has been partly lifted from Article 6 of the European Convention on Human Rights. The expressions "civil rights", "fair trial" and "due process" have not been defined in the Constitution, therefore, the same are dependent upon judicial construction. The right conferred by Article 10A applies to civil, criminal and administrative proceedings and benefit thereof extends to any person involved in the above proceedings in Pakistan and not just citizens.
The requirement of fairness imposed under the said Article applies to civil and criminal litigation taken as a whole including access to justice and is not confined to fair trial once litigation is underway. The right to fair trial is not a qualified right but an absolute one which is neither required to be balanced against rights of other individuals or public interest nor the same is subject to any qualification such as those provided in some other fundamental rights embodied in Chapter I of Part II of the Constitution. Fairness of the procedural safeguards, stricto senso, the equality of arms is one of the hallmarks of such right. The principle of equality of arms, which is a judicial construct adopted by the European Court of Human Rights, means giving each party a reasonable possibility to present its cause in such conditions as would not put one party in disadvantage to its opponent.
In other words, there must be a fair balance between the opportunities afforded to the parties involved in litigation. The principles of fair trial, as guaranteed by Article 10A of the Constitution, are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person.
15. In this case, the petitioner has alleged violation of his fundamental right enshrined in Article 10A on the basis that neither he was served a notice in the prescribed Form nor a copy of the plaint was ever delivered to him to enable him to prepare and file his application for leave to defend. He was produced from jail in handcuffs, where he was admittedly confined in the case F.I.R. No. 312/20 dated 14.08.2020 lodged by the respondent himself. He was resident of Muridke (as evident from his CNIC) but confined in District Jail Shaikhupura where he was neither allowed to contact any of his relatives nor engage a counsel.
16. Undoubtedly, a person may legitimately seek his remedy in civil law simultaneously while setting in motion the criminal law if the transaction in question constitutes a criminal offence triable under the law of the land. There is no prohibition in law to seek a decree for the recovery of sum due on the basis of a dishonoured cheque in addition to lodging an F.I.R. simultaneously if the same has been issued dishonestly and satisfies all requirements of section 489-F of the P.P.C., however, it is duty of the courts to ensure that such recourse does not abridge or limit in any way the5 6 7 8 9 fundamental right to fair trial and due process and the defendant/accused is provided a reasonable possibility to present his cause in such conditions as would not put him in disadvantage to his accuser. In the instant case, when the Petitioner was produced in the court of learned Additional District Judge, Nankana Sahib on 19.12.2020, although he was informed that he could file his application for leave to defend the Suit within 10 days, however, there is nothing on record to suggest that a copy of the plaint and annexures thereto were provided to him and he was warned of the consequences of his failure to seek leave. The order does not reflect that he was even allowed any opportunity to contact any of his relatives or any lawyer. On 05.01.2021, the Petitioner was again produced in the court from jail and when he did not file any application for leave to defend the suit, his right to seek leave was closed mechanically in a slipshod manner. It is trite law that the opportunity to defend necessitates that a party should be provided access to counsel and an opportunity to answer the case against him. Thus the principle of equality of arms has been manifestly violated in the instant case and the impugned order is void for abridging the Petitioner's fundamental right to fair trial enshrined in Article 10A of the Constitution.
17. Before parting, I would like to observe that Form 4 in Appendix B which prescribes summon under rule 2 of Order XXXVII C.P.C., needs to be in bilingual form i.e. English and Urdu. At the cost of repetition, it is stated that the purpose of such a summon is to convey a summary of the claim against him to a defendant, inform him of his entitlement to apply for leave to appear and defend the suit, warn him of the urgency in moving such an application (i.e. within the limitation period of ten days) and warn him of the consequences of his default. Such content attempts to satisfy one of the essential requirements of the fundamental right to fair trial. However, a summon in the above Form assumes that the defendant served is able to read English or that he has assistance available to him to convey the content of the same, which is questionable as majority of the people in our society are unable to read English or may not have such assistance available to them.
Resultantly, the purpose of the summon currently prescribed runs an obvious risk of being defeated. The notion that this type of summon satisfies the requirements of fair trial right is more of a fiction, which is permissible only if actual summon in a language that the recipient can understand is not feasible. Right to fair trial is a fundamental right guaranteed to all and not just English literate persons in this society. To facilitate access to justice and ensure fair trial right, the Hon'ble Supreme Court as well as this Court have already adopted the practice of serving various notices in Urdu language. Since service of the summon in prescribed Form is a mandatory requirement of law, it would only be in consonance with the object, letter and spirit of rule 2 of Order XXXVII C.P.C. as also in conformity with Articles 10A, 28 and 251 of the Constitution that the summon under the said rule is prescribed in bilingual form i.e. English and Urdu. Accordingly, a copy of this judgment is directed to be sent to the Federal Law Secretary and the Law Secretary of Province of the Punjab for appropriate action in this regard.
18. The titled Civil Revision was accordingly allowed, and these are reasons for the decision. Habib Bank Limited v. Kayece Corporation Karachi (PLD 1980 Karachi 143) Ghulam Muhammad v. Abdul Ghaffar (2008 MLD 109); Mst. Bilqees Fatima v. Abdul Razzaq (PLD 1986 Karachi 444). Muhammad Amin v. Ali Ahmad (1986 CLC 2356); Ghulam Muhammad v. Abdul Ghaffar (2008 MLD 109); Ameer Ali v. Khuda Bux (2015 CLD 1159) Mst. Bilqees Fatima v. Abdul Razzaq (PLD 1986 Kar.444) Ali Akbar v. Gulzar Ali Shah (PLD 1984 Kar.252); Shafqat Mehmood v. Muhammad Nazir (2014 CLC 1222); Ameer Ali v. Khuda Bux (2015 CLC 1159) R(Begum) v. Tower Hamlets London Borough Council [2003] 2 AC 39 (HL) Golder v. United Kingdom [1975] 1EHHR 524.10 11 1 2 3 4 5 6 7 Naveed Asghar and two others v. the State (PLD 2021 SC 600). Although in certain cases criminal proceedings may be stayed where for example the commission of offence is inextricably linked to a final determination of the civil liability and the court considers simultaneous prosecution to be an abuse of the process. Reliance is placed on Muhammad Akbar v. State (PLD 1968 SC 281); Syed Muhammad Ahmed v. State (1972 SCMR 85); Agricultural Development Bank of Pakistan v. Sanaullah Khan (PLD 1988 SC 67); Asim TextileMills Limited v. NAB (PLD 2004 Kar. 638); Abul Shakoor Kaloodi v. the State (2003 P.Cr.L.J.
626). Muhammad Nadeem Amin v. Ch. Farasat Ullah (PLD 2006 SC 32); Ghulam Rasool v. Abdullah (1991 SCMR 1964) Meyer v. Nebraska (262 U.S. 390); Farrington v. Tokushinge (273 U.S. 284); Mullane v. Central Hanover Bank & Trust Co. (399 U.S. 306); Goldburg v. Kelly (397 U.S. 254, 263); Bodie v.
Connecticut (401 U.S. 371, 380);