ROZI KHAN BARRECH, J.---Through this appeal the appellants, who are defendants in the suit for recovery filed under Order XXXVII of C.P.C. on the basis of cheques, has challenged the order dated 02.05.2018, whereby an application for leave to defend the suit Ilas been dismissed on the ground that same has been filed after the prescribed period of limitation, and the suit filed by the respondent was decreed.
2. Briefly stated the facts of the case are that the respondent/plaintif f filed a summ ary suit against the appellants stating therein that the appellants/ defend ants borrowed a sum of Rs.24,17,000/- from him in the year 2014. The appellant/defendant No.1 gives certain cheques of different amounts to the respondent/plaintif f payable on different dates with regard to the Bank Al-Falah. Apart from the promissory note of Rs.11,57,000/- was also given by appellant No.1 in respect of cheques, while appellant No.2 stood surety on behalf of appellant No. 1. It was alleged in the plaint that when the cheques were presented to the concerned bank the same was dishonored due to insuf ficient funds.
3. Civil Suit was filed on 20.02.2018 which was duly registered and the notices were ordered to be issued. The notices remained un-served for a few days, and they were repeated. On 16.03.2018 appellant No.2 was present in person and on the same date copy of the plaint was handed over to the appellant No.2. On 21.03.2018 notice was served upon the appellant No.1 and counsel for the appellant No.1 Mr. Muhammad Zakriya Khilji, Advocate was appeared and filed power . On 26.03.2018 the appellant filed an application for leave to defend. Thereafter . objections were filed on the application for leave to defend. After hearing, the said application was dismissed being barred by time, whereafter the impugned judgment and decree was passed on 02.05.2018. Hence this appeal.
4. We have heard the learned counsel for the parties and have gone through the available record with their assistance.
5. From the case diaries, it is apparent that the appellant No.2 appeared before the learned trial court on 16.03.2018 and copy of the plaint has been supplied to him. The leave to defend application was filed on 26.03.2018, i.e. within ten days of the time when he was provided copies. Since it is not possible for the party to file leave to defend application without possessing a copy of the plaint filed by the plaintif f.
6. The service of the summons in the summary suit is effected through summons available in the Appendix 'B' of Form IV of the C.P.C. It is mentioned that "within 10 days from the service" the defendant has to obtain leave to appear and defend the suit. As the servic e was effected on 16.03.2018, copy of the same is available on record, therefore, within ten days means excludin g 16.03.2018 at lest the date of obtaining of leave to appear and defend was 26.03.2018, therefore, the application for leave to appear and defend the suit has been filed within the prescribed period of limitation.
In view of what has been discussed abov e, the judgment and decree dated 02.05.2018 passed in a summary Suit No.02 of 2018 are hereby set aside and the matter is remanded back to the trial court to decide afresh from the stage of hearing of leave to defend the application. The trial court will decide the leave to defend the application of the appellants strictly in accordance with law within a period of two months from the receipt of this order .