Through the instant appeal, the appellant has called in question the order, dated 29-5-1999 passed by the learned District Judge, D.I. Khan whereby the application of the appellant for permission to defend the suit was rejected.
2. The epitomical sketch of the instant matter is that the respondent Allah Dad instituted a suit in the Court of District Judge, D.I. Khan for the recovery of Rs.70,000 from the petitioner on the basis of a promissory note executed on 1-10-1997. Notice to the appellant was issued which has admittedly been served upon him on 18-3-1999. The date fixed in the said notice/summon was 31-3-1999. The contents of the said summon clearly speak that within a period of ten days from the date of service of notice, the appellant was required to obtain leave for defence. In other words, the appellant was required to make an application for obtaining leave to defend the suit till 28-3-1999 but he failed to do so. On 31-3-1999 he appeared before the Court and submitted an application to the Court, a copy whereof has been attached by him with the instant file. The said application was, however, resisted by the plaintiff on the ground that the same was not within time and was also not in accordance with the provisions of Order 37, Rule 3, C.P.C. The point pleaded by the counsel for the present appellant in the lower Court in support of the said application was that the appellant/defendant is a poor and ignorant person and was not aware of the legal provision, hence in the interest of justice the defendant be allowed the leave to defend. The learned District Judge, however, did not find any force in the argument of the learned counsel for the appellant and vide his order, dated 29-5-1999, the suit of the respondent was decreed.
3. Malik Muhammad Bashir, Advocate, the learned counsel appearing on behalf of tile appellant, has argued that the judgment and decree passed by the learned District Judge is not warranted by law and the learned trial Judge was required to have allowed the appellant to appear and defend his suit. Substantiating his contention the learned counsel made a reference to the notice issued in the name of the-appellant served on him on 18-3-1999. He read the report of the executing official and said that it does not contain that a copy of the plaint was also handed over to the appellant at the time of affecting service on him and, as such, the period of ten days could not be computed against him from 18-3-1999 as according to the learned counsel, the service of the notice was defective on the above point.
4. On the contrary, the learned counsel appearing on behalf of the respondent has submitted that there is no defect in the service of notice on the appellant and the contents of the said notice clearly show that a copy of the plaint was annexed therewith. Thus, the plea of the learned counsel that no copy of the plaint was provided to the appellant is untenable. The learned counsel further contended that the appellant had never raised such a point in the lower Court and he relied on the judgment of the Supreme Court reported in 1994 SCM R 560, wherein the august Supreme Court has observed in the following words:-- ---We have heard the learned counsel for the appellant and gone through the record. Neither before the trial Court nor the High Court any plea was taken that, a copy of the plaint had not been supplied with the summons served by the Court on the appellant's son. Had such a plea been taken before the trial Court, the further question would have arisen whether service had been effected legally or not entitling the appellant to an extension of limitation for filing petition for leave to defend. The said plea not having been taken before the lower Courts, cannot be permitted to be raised now."
Thus, the plea of non-service of the notice and non-supply of copy of the plaint with the summon and such plea having not been taken before the Courts below was not entertained by the august Supreme Court.
5. I have heard the rival contentions of both the parties and have gone through the record. I may observe that the appellant when served with the notice of the Court on 18-3-1999 which clearly contained the requirement of law to appear before the Court within ten days of service of the notice, he badly failed to do so. Then on 31-3-1999 when he made appearance before the Court he submitted an application the tenor whereof clearly shows that it was not an application for obtaining permission to appear and defend the suit. In its substance, it was merely an application for adjournment of the case because an application for leave to defend must contain the grounds and reasons for obtaining such permission. The law has provided the summary procedure in such- like cases where leave to defend is to be granted on very cogent reasons which should be sufficient to satisfy that the Court to the effect that the applicant has made out a case for obtaining leave to defend. But in the said application no such ground has been mentioned. Besides this the appellant has not made any application for the condonation of the obvious delay which had occurred in this case. Thus, in the light of the above discussion, I find no force in the arguments of the learned counsel for the appellant and as such this appeal being devoid of merits is dismissed.