1. On 4-9-1988, Ghulam Qadir respondent filed suit for the recovery of Rs.25,000 on the basis of pronote against Allah Jiwaya appellant in the Court of District Judge, Bahawalpur. The appellant/defendant was served with notice on 7-9-1988. Instead of making application within 10 days from 7-9-1988, he filed application for leave to defend on 8-10-1988. He also filed application under section 5 of the Limitation Act, for condonation of delay on account of his illness.
2. The application was resisted. The trial Court dismissed the application and decreed the suit on 10- 10-1988, hence this appeal.
2. Learned counsel for the appellant contended that the summons issued by the trial Court for the service of the appellant/defendant under Order XXXVII, Rule 2, C.P.C. Was not accompanied with copy of the plaint, as such, there was no proper service on him. So application for leave to defend the suit could not have been dismissed as barred by time. Reliance has been placed on Muhammad Amin v. A.I Ahmad 1976 CLC 2236. Learned counsel for the respondent has tried to support judgment of the trial Court.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. An examination of the record shows that copy of the plaint was not annexed with the summons issued by the trial Court for the service of the appellant/defendant. This, to my mind, is violation of the mandatory provisions of Order XXXVII, Rule 2, C.P.C. The relevant rule and the prescribed form may be reproduced for facility of reference:-- Rule 2 of Order XXXVII: "All suits upon bills of exchange, hundis 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 No.4 in Appendix B or in such other form as may be from time to time prescribed."
3. From No. 4, Appendix B SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (0.37, R.2)
4. "To (TITLE)
5. (Name, description and place of residence)
6. WHEREAS-----------has instituted a suit against you under Order XXXVH 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 here to 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, ifany 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 is thus very much obvious that the trial Court was obliged to annex copy of the plaint with summons issued for the service of the appellant/defendant but this has not been done in this case, therefore, it can confidently be said that there was no proper service on the defendant and the fault lay with the Court itself. That being the position, there could be no justification to shut out the defence of the appellant/defendant and to impose extreme penalty by pass decree on the basis of unrebutted claim set forth m the plaint.
10. Pursuant to the above discussion, the appeal is accepted, the judgment and decree of the trial Court, dated 10-10-1988 is set aside and the case is remanded to the trial Court with the direction to rehear and decide the leave application afresh on merits. The parties will bear their own costs.
11. H.B.T./A-749/L