1. ' By this order I will dispose of two applications bearing C.M.A. No,149/9 I under section 5 of Limitation Act and C.M.A. No,150/91 under Order 9, rule 4, C.P.C.
2. ' The said two applications were filed by the plaintiff-bank in suit bearing No,1106/89 under Order 37, C.P.C. For recovery of Rs,13,59,400 against defendants. The said suit was presented on 5-8-1989 whereafter notices were issued to the defendants who were ultimately served on 15-11-1989. No application for leave to appear and defend the suit was made by any of the four defendants.
3. Accordingly the matter was fixed for final disposal before the Court on 25-1-1990 when by reason of non-appearance of the plaintiff and his counsel, the suit was adjourned to 31-1-1990 for ordeRs, On the said adjourned date again there was no appearance on behalf of the plaintiff. Consequently this suit was dismissed for non-prosecution under Order 9, rule 3; C.P.C.
4. ' On 441-1990 both the said applications were filed by learned counsel for the plaintiff Mr. Muhammad Sadiq duly supported by his personal affidavits. The affidavits are to the effect that he had no knowledge of the fixation of the case on 25-1-1990 and 31-1-1990 till 4-11-1990 when he came to know that the suit was dismissed for non-prosecution on 31-1-1990. It was stated that he was practicing in Sukkur but no notice was issued by the office to him for appearance in the Court on the said dates. As such his absence was not deliberate and if the suit is not restored, it will greatly prejudice the interest of the plaintiff as the amount involved is very heavy. Learned counsel further contended that the defendants were duly served but failed to obtain leave to appear and defend the suit, consequently, a decree had to be passed against them by the Court irrespective of appearance or non-appearance of the plaintiff.
5. ' In support of his contention learned counsel placed reliance on Ahmed Autos v. Allied Bank of Pakistan Limited PLD 1990 SC 497 in which it was held that where the defendant does not obtain leave to defend, the plaintiff's allegations in the plaint should be deemed to be admitted and the plaintiff should be entitled to decree.
6. ' Nowhere in the above-cited case it was held that on the failure of the. Defendant to "obtain leave to defend the suit, the plaintiff despite his nonappearance is entitled to a decree under Order XXXVII, Rule 2, C.P.C. Hence it is inapplicable to present case.
7. ' To substantiate his contention that a summary suit cannot be dismissed for non-apperance of the plaintiff where the defendants have failed to obtain leave to defend the suit under Order XXXVII, Rule 2, C.P.C. Learned counsel for the plaintiff placed reliance on Qaim Ali Khan v. Muhammad Siddique 1987 SCM R 733 in which the Supreme Court of Pakistan held that a date fixed for filing of replication was not a date of hearing and suit cannot be dismissed for non-appearance of the plaintiff on that. Date. This authority will not help the plaintiff because the said two dates were fixed for final disposal of the suit and not for filing replication.
8. ' What, however, follows from a bare reading of Order XXXVII, Rule 2, C.P.C. Read with Summons in Form IV of Appendix 'B' of C.P.C. Is that in so far as the defendant is concerned no specific date for his appearance before the Court could be fixed such as provided for his appearance under Order 5, rule 1. C.P.C.I. However, once he files an application for leave to defend the suit he will be heard on date to be fixed by the Court. In so far as the plaintiff is concerned a specific date is given to him to ascertain whether the defendant has been served or not and whether he has filed any application for leave to defend the suit or not. This date is a date of hearing for the plaintiff when necessary order has to be passed by the Court and when the plaintiffs appearance is made necessary. The provisions of Order XXXVII, C.P.C. Do not dispense with the appearance of the plaintiff in the Court, after filing of the summary suit or after service or non-service on the defendant or on his failure to file an application for leave to defend the suit. At the same time these' provisions are silent about it.
9. It may be observed here that although Order XXXVII, C.P.C. Contains special provisions in relation to summary suits, these provisions are not exhaustive and in case of difficulty the provisions found in other parts of Code of Civil Procedure may be imported and resorted to. I, therefore, do not agree with the learned counsel that a date fixed for final disposal of the suit is not a date of hearing for the plaintiff.
10. ' Next it was urged by the learned counsel that he was a practising Advocate of Sukkur but no notice of the dates of hearing of the suit was given to him as had been the practice of this Court. In Mst. Rehmat and 3 others v. M/s. Samz Shipping Co. Panjoo Ltd., Karachi PLD 1976 Kar. 953 cited by the learned counsel, the name of the plaintiffs counsel did not appear in the Daily Cause List as a result of which the suit was dismissed. It was held by a learned Judge of this Court that there was sufficient cause for restoration of the suit. Learned counsel also brought to my notice from the suit file that on each date when the present two applications were fixed before the Court from time to time, the office issued each time notices to the plaintiff's counsel at Sukkur. It is admittedly an established practices of the High Court of Sindh at Karachi to issue notices to an Advocate for each date of hearing if he is not a resident of Karachi. Although about a dozen times notices were issued to the Plaintiff's counsel for hearing of his two applications, no notice was issued to him when the suit was fixed for final disposal on 25-1-1990 and 31-1-1990. There is, therefore, sufficient cause for setting aside the order dated 3144990 whereby the suit was dismissed for non-appearance of the plaintiff. Further the plea of the plaintiff that his Advocate came to know of the dismissal of the suit on 4-11-1990, hence, time for filing an application under Order 9, rule 4, C.P.C. May be extended under section 5 of Limitation Act is not without force as no notice for hearing was issued to him.
11. Resultantly both the applications are allowed. Since the defendants had been served but they failed to file any application for leave to appear and defend the suit, no notice of these applications is required to be given to them.
12. ' The suit may now be fixed for final disposal, after notice to the plaintiffs counsel.