' On 13-4-1977, M/s. Habib Bank Limited filed a suit under Order 37, C.P.C. For the recovery of Rs,2,930 against Hafiz Muhammad Bashir appellant in the Court of the learned District Judge, Sargodha.
Since despite service of summons, the defendant-appellant failed to appear before the trial Court, therefore, he was ordered to be proceeded against ex parte, vide order dated 1-6-1977, and the case was adjourned to 7-6-1977. On 7-6-1977, the learned District Judge, decreed the suit on the ground that the defendant-appellant having not appeared and sought leave to defend the suit the plaintiff-bank was entitled for payment of Rs,2,930 as prayed.
2. Before me, the learned counsel for the appellant has contended that summons, as required under Order 37, rule 2. {Form 4 Appendix 13') of the Civil Procedure Code were not issued, therefore, the suit could not have been decreed on the ground that the defendant had failed to apply for leave to defend the suit within ten days of the service of the summons. Learned counsel for the respondent has frankly and rightly conceded.
3. An examination of the summons issued to the defendant reveals that the summonses issued to the defendant-appellant were not in Form No,4 in Appendix 'B'. Although the trial Court in its order had clearly stated that "Notice as prescribed by Rule 2 of Order 37, C.P.C. May issue to the defendant", yet summons to settle the issues under Rule 5 of Order V, C.P.C. A were issued to the defendant. That being the position, the suit could not have been decreed on the ground that defendant had failed to apply for leave to defend. So, there is no option but to accept this appeal.
The judgment, and decree of the trial Court is, therefore set aside and the case is sent back to the it Lai Court for fresh proceedings in accordance with law. The parties shall bear their own costs.