This civil revision has arisen out of a suit brought by the respondent, National Bank of Pakistan, Grain Market Branch, Sheikhupura, against the petitioner, Sheikh Muhammad Shafique, for recovery of Rs.19,546.10. The suit, which was heard by an Additional District Judge of Sheikhupura, under Order XXXVII of the Code of Civil Procedure, was filed on 14th April, 1980. On 16th April, 1980 it was directed by the learned Additional District Judge that summons shall issue to the petitioner (who was defendant in the suit) for 30th April, 1980. In the summons sent to the petitioner, it was stated that if he wanted to seek leave to defend the suit, he should make application for the purpose, within 10 days from the date of service of the summons. The petitioner did not appear before the learned Additional District Judge on 30th April, 1980 nor the aforesaid application was submitted by him before that date. It was noted by the learned Additional District Judge on 30th April, 1980 that service of the summons had been effected on the petitioner. He, therefore, heard the suit in his absence and decreed the suit ex parte on the same date. This civil revision is directed against the judgment and decree thus passed by the learned Additional District Judge.
2. It was inter alia contended by learned counsel for the petitioner that the learned trial Court had itself allowed ten days' time to the petitioner to obtain permission to resist the suit but the said learned Court decreed the suit without waiting for running out of the said period. According to learned counsel for the petitioner ten days' period expired on 10th May, 1980 but, as stated above, the suit was passed ex parte on 30th April, 1980. It was maintained, by learned counsel for the petitioner that it was the statutory right of the petitioner to make application to defend the suit within ten days of the service of the summons on him but he was not allowed to avail of the whole of that statutory period. It was, therefore, alleged by him that the learned Additional District Judge committed illegality in passing the ex parte decree on 30th April, 1980.
3. In reply, it was submitted by learned counsel for the respondent that the petitioner had been guilty of contumacy and, therefore, the learned trial Court was justified in passing the impugned judgment and decree against him It was explained by him that on the summons issued to the petitioner it was noted by him that his name was Sheikh Muhammad Shafique but in the summons his name was given as Sheikh Shafique Alunad. It was also added b) learned counsel for the respondent that since the case had been fixed by the learned trial Court for 30th April, 1980, it could be decreed ex parte on the said date although period of ten days referred to above had not expired b) then.
4. It has been laid down in Rule 2 of Order XXXVII of the Code of Civi] Procedure that summons shall be issued in Form No.4 in Appendix 'B' or it such other form as may be from time to time prescribed.
Contents of Form No.4 make the following reading- "NO.4 SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (037, 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 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).
Leave to appear may be obtained on an applicaton 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 of19 Judge."
(Underlining is by me)
5. It was not the plea of learned counsel for the respondent that any Form other than Form No.4 has been prescribed in terms of the provisions of Rule 2 of Order XXXVII of the Code of Civil Procedure.
Learned counsel for the parties were unanimous that in this case summons was issued in Form No.4 which required the defendant (petitioner) "to obtain leave from the Court within ten days from the service" of the summons. Thus, the petitioner had statutory right to seek leave of the Court within ten days of the receipt of summons. Learned trial Court should, therefore, have waited for the expiration of the said period before passing a decree against the petitioner, but, admittedly, it decreed the suit before the said period had run out. In view of the period allowed to the defendant to file application for permission to defend A the suit, it was improper on the part of the learned Additional District Judge to fix a very short date for appearance of the defendant. As indicated above, he decided to hear the case after 14 days of the issuance of summons to the petitioner.
While adopting this course, he had not taken into account the period which is usually taken by the Process Serving Agency for effecting service of processes. This, to say the least, was an unfortunate lapse of the learned Additional District Judge.
6. As for the objection raised by the petitioner that his name had not been correctly mentioned in the summons, even if this objection was wrong, it does not amount to contumacy on his part.
Assuming, without conceding that his conduct was contumacious, that too did not furnish justification for shutting out the defence of the petitioner by passing adverse order against him without permitting him to avail of full period prescribed by law and also allowed by the learned trial Court to the petitioner for seeking leave to defend the suit. If the said learned Court had erred in fixing 30th April, 1980, as the next date of hearing it was its own fault and the petitioner should not suffer therefor. There is well-known maxim that nobody should suffer for the act of the Court. I regret to say that, in this case, the learned trial Court proceeded with undue haste and passed the impugned judgment and decree in violation of the relevant provisions of law and its own direction embodied in the summons.
1. Therefore, cannot help accepting the civil revision, setting aside the impugned judgment and decree and remanding the suit for fresh hearing and decision.
7. Both the learned counsel agree that after remand, the suit win now be heard by the Special Judge, Banking, Lahore, and not by the learned Additional District Judge, who had passed the judgment and decree assailed herein. I, therefore, accept this civil revision, with costs, set aside the judgment and decree under challenge and remand the suit to the Special Judge, Banking, Lahore, with the direction that fresh time will be allowed to the petitioner to make application for permission to defend the suit and then the suit shall be redecided in accordance with law.
8. Parties shall appear before the learned Special Judge, Banking, Lahore, on 17th October, 1991.
AA./M-33/L