1. ' This judgment will dispose of First Appeal No, 71/80 and First Appeal No, 75/80 filed by the appellant against the respondent. These appeals are directed against the judgment of learned District Judge whereby two suits filed by the respondent under Order XXXVII, C. P. C. Were decreed.
2. The respondent filed Suit No, 70/79 subject-matter of First Appeal No, 71/80 on 11-10-1979 alleging that on 16-2-1978 the appellant issued a cheque drawn on National Bank of Pakistan for Rs, 16,000 in favour of respondent for valuable consideration. The above cheque when presented was dishonoured. Suit No, 75/79 subject-matter of Second Appeal No, 75/80 was filed in respect of another cheque of Rs, 16,000 dated 25-3-1978 which was also dishonoured. It was alleged that the appellant had notice of dishonour and was also informed by the respondent but no payment was made. He, therefore, filed both the suits on the basis of dishonour of cheque claiming interest at the rate of 13% per annum. In both the suits the trial Court issued summons for 8-11-1979. As the process did not return on the date of hearing the summonses were ordered to be repeated by registered post acknowledgment for 6-12-1979. Again they were not returned before the date of hearing, therefore, summonses were repeated for 7-2-1980. These summonses sent for 7-2-1980 returned served as postal acknowledgment receipt was received bearing postal seal of Thatta dated 12-1- 1980. On 7-2-1 80 the appellant appeared and filed application under Order XXXVII, rule 3, C.P.C. In each suit. The appellant stated in the affidavit that from 7-12-1979 he had gone abroad on personal business and returned to Karachi on 20-12-1979 from Bombay and again he remained out of Karachi and Pakistan from 4-1-1980 when he returned from Dubai by Gulf Air flight. Thettafter he left for his land from where he returned on 14-1-1980 to Karachi and remained busy with the Vice- President and Prime Minister of U. A. E. And returned home on 2.2-1980 in the evening. He has stated that during the night he checked his mails and found an envelope from the District Court, Thatta containing two notices pertaining Suits Nos. 70/79 and 71/79. He immediately contacted his lawyer who asked him to find out the correct position from the Court. He came to Matta on 3.2-1980 and enquired about the matters. The appellant has stated that he had only received notices on 2-2- 1980. He has explained the circumstances in which the cheques were issued which were merely to help the respondent who had promised to repay the amount advanced by these cheques. The learned trial Court dismissed the application on 7-10-1980 holding that the appellant was at his residence on 14-1-1980 and the process sent by registered post on 7-1-1980 had been received by his authorised agent as the postal acknowledge due receipt was returned on 12-1-1980. On this basis the learned trial Court dismissed the application having been filed beyond 10 days from 14-1- 1980, consequently by a consolidated judgment (5-10-1980) both the suits were decreed as prayed.
3. ' Mr. Abdul Fateh Memon the learned counsel for the appellant has contended that the service of summons effected on the appellant was not proper as copy of the plaint was not annexed with the summonses purported to have been served on 14-1-1970. Order XXXVII, rule 2 provides that the summons shall be in Form No, 4 in Appendix B or in such other form as may be from time to .Time prescribed. Form No, 4 is the pro forma of summons in the following manner : ' No, 4 : SUMMON IN SUMMARY SUIT ON NEGOTIABLE INS FRUMENF (0. XXXVII, r. 2)
4. (Title)
5. ' To (Name, description and place of residence)
6. ' 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 at 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)
7. ' 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.
8. ' Given under my hand and the seal of the Court this........................................ Day of......................... 19 Judge."
9. ' It specifically provides that the copy of the plaint shall be annexed with the summons issued by the Court. The summons issued by the trial Court did not contain copy of the plaint as its annexure.
10. In fact from the summons the words "of which the copy is hereto annexed" were deleted and in the end after the date of hearing and time the words "copy already sent" were inserted. These facts are undisputed and are identical in both the suits.
11. ' Mr. Jehamat Jethanand the learned counsel for the respondent admitted that with the summons issued for 7-2-1980 copy of the plaint had not been annexed but it had been sent to the appellant earlier. There is no evidence on record that copy of the plaint was annexed with the earlier two summonses which were issued for appearance on 8-11-1979 and 6-12-1979. In all the previous summonses similar endorsement was made giving the impression that copy of the plaint has been sent earlier. There is no evidence of despatch and delivery of the copy of the plaint to the appellant.
12. From the record it is A clear that in none of the summonses issued to the appellant copy of the plaint was annexed). Article 159 of the Limitation Act provides that application for leave to appear and defend the suit under Order XXXVII should be filed within 10 days from the date when summons is served. The question is whether in the present case the summons was served ? It has to be borne in mind that Order XXXVII, C. P. C. Provides a summary procedure for suit based on bill of exchange, hundi or promissory note. The defendant is not entitled to appear and defend the suit unless he has obtained leave within 10 days of the service of summons. When such limitations have been placed on the right of the defendants it would be just and proper to ensure' that on the date when the summons is served on the defendant he should be fully aware of the plaintiff's claim in suit.
13. 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.
14. ' The object of prescribing the form of summons is that the defendant should know the nature of the claim. The service can be said to have been effected only if it effectively brings the claim to the knowledge of the defendant. In a suit under Order XXXVII, C. P. C. Prescribed summons with the copy of the plaint should be issued otherwise the defendant will not be able to know the nature of the suit and claim involved in it and may not move the machinery expeditiously for obtaining leave to appear and defend the suit. In the present case as the summons was not accompanied with the plaint there could not be a proper service on the appellant and, therefore, the question of computing the period of limitation under Article 159 did not arise. In these circumstances the application for leave to defend could not be rejected and consequently no decree could be passed. I, therefore, allow both the appeals, set aside the order dated 2-10-1980, the decree and judgment dated 5-10-1980 and remand the case to the learned trial Court with direction to hear the appellant's application under Order XXXVII, rule 3, C. P. C. On merits. There will be no order as to costs.