' This first appeal was directed against the judgment dated 18-9-1990 of the learned Additional District Judge, Bhakkar, whereby the permission to defend the suit was not granted and the application in this respect was held to be barred by time and consequently the allegations in the plaint were treated to have been admitted and a decree for payment of Rs,25,000, the sum sued, was granted.
2. Learned counsel in support of the appeal argued that the refusal to grant permission to defend the suit is arbitrary and illegal as the appellant was misled by the notice served on him and that the prescribed summons in Form IV of Appendix B was not issued and the appellant could not therefore be punished for the mistake of the Court in not submitting the application seeking permission to defend the suit within ten days of the Notice. He argued that in the circumstances of the case, the delay, if any, should have been condoned as in the affidavit filed alongwith the application it was explained that failure to seek permission to defend the suit within prescribed time was not due to deliberate fault of the applicant-appellant. Learned counsel for the respondent on the other hand, relied on the reasoning given in the impugned judgment and argued that clerical mistake appearing in the summons does not render it defective as the summons required the appellant-defendant to apply for leave to defend within ten days from the service thereof. He argued that failure of the appellant to file application for leave to defend was deliberate and as such the learned Additional District Judge was right in rejecting the application and decreeing the suit forthwith. In support of this learned counsel relied on Maktaba Ishaat-e- Adab v. Muslim Commercial Bank 1984 CLC 374, Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252 and Bagh Ali v. Habib Bank Ltd. PLD 1986 Lah.
124.
3. I have gone through the record of the suit with the assistance of the learned counsel for the parties. The suit was filed by the respondent on 9-12-1989 for recovery of Rs,25,000 on the basis of pronote. The title of the suit shows that the suit was filed under Order XXXVII, Rule 2, C.P.C. Along with the suit a photo copy of the promissory note was filed with the note that the original promissory note will be produced in evidence. The learned trial Court directed issuance of summons on prescribed form as well as through registered post acknowledgment due. This order was repeated successively but neither there is any copy of these notices issued on record no the plaintiff- respondent has placed on record the receipts of the postal department showing despatch of registered notices. Even the acknowledgment due receipts of these notices ordered to have been issued do not appear to have been placed on record. On 25th June, 1990 the Presiding Officer was on leave and as such Reader of the Court fixed the case for 10th November, 1990, for proceeding previously ordered. On the previous date, i.e. 17-5-1990, the Presiding Officer was on tour and summons were ordered to be issued for 25-6-1990. Summons in this case were issued for 10th September, 1990. This summons was served on the appellant-defendant on 23-7-1990. Relevant portion of the summons reads as under:--- "WHEREAS{{URDU TEXT}} has instituted a suit against you under Order VII of the Code of Civil Procedure, 1908, for Rs, 25,000 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, 25,000 and the sum of Rs, x for costs together with such interest, if any, from the date of the institution of the suit as the Court may order."
' The date of hearing was mentioned as 10-9-1990 on the right upper side of the notice. The appellant entered appearance on 10-9-1990 and submitted an application for transfer of the suit to the competent Civil Judge, Bhakkar, or in the alternative to grant permission to defend the suit. It was pointed out that though in the title of the suit Order XXXVII, Rule 2, C.P.C. has been mentioned but in the summons issued by the Court Order VII, C.P.C. has been mentioned and the said summons is not the summons as prescribed under Order XXXVII, Rule 2, C.P.C. and in these circumstances if the Court is so minded to treat it as summons under Order XXXVII, C.P.C. then the defendant be permitted to defend the suit for the reasons contained in the application. The application gave reasons in clauses {{URDU TEXT}} . It was also added that in this case the factual and legal aspects need to be established by production of evidence and that the applicant is not at fault in the instant case in not seeking the permission within time as the notice served on him was incorrect as Order VII, C.P.C. pertains to suits cognizable by the Court of Senior Civil Judge in which suit there is no need to obtain permission to defend. This application was supported by an affidavit also. The respondent-plaintiff resisted this application by filing a reply wherein the assertions made were controverted by merely saying that the same are incorrect. No counter- affidavit was, however, filed.
4. The learned trial Court vide order dated 18-9-1990 rejected the application and thereby refused to grant leave to defend the suit on the ground that the application was barred by time and consequently decree for payment of Rs,25,000 was granted to the plaintiff-respondent.
5. The foremost thing to be noticed is that the suit was based on promissory note but the said promissory note was never placed on record. Secondly, the summons issued admittedly made mention of Order VII and not of Order XXXVII, C.P.C. Thirdly, the notice was not on the prescribed form.
' It is true that the summons required the defendant-appellant to obtain leave of the Court within ten days from the service thereof as otherwise the plaintiff can obtain a decree in respect of the suit amount but firstly while so asking the Court has to apply its mind and before granting the decree it should obtain on record the original negotiable instrument on the basis of which the decree is claimed. It is incumbent on the Court to apply its judicial mind more minutely in those cases where leave to defend is being refused. The more important question in the case is whether or not in the facts and circumstances of the case the appellant was entitled to be granted leave to defend the suit. The summons prescribed in Form 4 in Appendix B was admittedly not issued, and the summons served on the appellant referred to Order VII and not to Order XXXVII, C.P.C. The learned trial Court appears not to have read the summons while signing it before its issuance to the defendant-appellant. The plea of the appellant that he was misled by the summons served on him is not altogether devoid of force. The confusion prevailing in the mind of the defendant- appellant was brought to the notice of the Court by submitting an application on the date of hearing. In such like cases the discretion should have been exercised in favour of the appellant by allowing him opportunity to make his defence rather than shutting out his defence specially when the confusion prevailing was due to the mistake of the Court itself. The judgments, cited by the learned counsel for the respondent-plaintiff are distinguishable as they proceed on different facts.
I may add that the observations in the case of Maktaba Ishaat-e-Adab (supra) rather help the appellant-defendant. In that case the defendant could not be served in the ordinary way. A notice was published in the newspaper wherein it was not mentioned that the suit had been instituted under Order XXXVII, C.P.C. or that the defendant was required to obtain leave to appear and defend within ten days. The defendant appeared in Court on the date mentioned in the notice and the plaintiff-bank was directed to give a copy of the plaint to the defendant and the suit was fixed for 12th November, 1979, for filing written statement. On this date the Presiding Officer was on leave and the proceedings were adjourned to 10th December, 1979, on which date the case was adjourned to 11th December for further proceedings. On this date the counsel pointed out that the defendant had not filed application seeking leave to appear and defend the suit. The matter was then adjourned to 6th January, 1980, to consider this plea. On 13th December, 1979, the defendant moved the Court for leave to appear and defend the suit. This application was rejected as belated one and the suit was decreed. The learned Judges held that in the circumstances the trial Judge was not justified in applying rule 2(2) of Order XXXVII, C.P.C. and rejecting the application of the defendant. It was observed that the starting point of limitation for making application should be taken as 11th December, 1979, when objection with regard to non-making of the application for leave to appear and defend the suit was taken by the plaintiff and as such the application made on 13th December should be treated to have been made in time. It would be noticed that the aforesaid view was taken despite the fact that the copy of the plaint under Order XXXVII, C.P.C. had been served on the defendant on an earlier date. Another distinctive feature in the instant case is that no counter- affidavit was filed by the respondent-plaintiff to controvert the assertions made in the application seeking leave to appear and defend the suit. In these circumstances the learned trial Judge was not right in not condoning the delay and in rejecting the application.
6. For the reasons given above the judgment and decree dated 18-9-1990 of the trial Court are hereby set aside; delay is condoned and the application seeking leave to appear and defend the suit is allowed as a consequence thereof the suit stands remanded to the trial Court for trial in accordance with law. The appeal thus succeeds and is accepted with cost.