2009 PLP 1817 (YLR)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that the respondent filed a suit under Order XXXVII, Rules 1 and 2, C.P.C. for the recovery of Rs.30,00,000 on the basis of a cheque dated 15-12-2005. The appellant was served on 10-6-2006 for the next date of hearing as. 28-6-2006. On 27-6-2006, he filed an application for leave to defend the suit and also filed an application for condonation of delay in filing the said application. The learned trial Court on 10-8-2006 dismissed both these applications and decreed the suit filed by the respondent without recording evidence. The same is being assailed through the instant appeal.

2. It is contended by the learned counsel for the appellant that the language of the notice, which was allegedly served upon the appellant, is ambiguous and is not in terms of Form No.4, appendix-B of Civil Procedure Code. The report of the process server also indicates that apart from the notice, no other document, i.e. copy of the plaint was delivered to the appellant. It is further argued that the learned trial Court should have recorded evidence of the plaintiff-respondent before passing a decree in his favour in order to substantiate his case.

3. On the other hand, learned counsel for the respondent contends that the notice, served upon the appellant contained the endorsement that copy of the plaint was annexed. It is further submitted that no plausible reason for the condonation of delay was disclosed in the application under section 5 of the Limitation Act.

4. We have considered the contentions of the learned counsel for the parties. We have minutely examined the printed notice which was served upon the appellant. Its printed material is absolutely ambiguous and at places it does not convey any sense. The report of the process server on the said notice also indicates that merely a notice was given to the appellant and nothing else. The constraints put on a defendant in a suit under Order XXXVII, Rules 1 and 2, C.P.C. and the period of limitation prescribed for filing an application for leave to defend make it mandatory that every step should be taken absolutely in accordance with law without any ambiguity because consequence of any lapse on the part of the defendant would result in a decree against him, even though if he had some case to defend. The wording of the notice in the instant case is undoubtedly ambiguous. Copy of the plaint was also not delivered to the appellant. Therefore, extreme measure for closing his right of defence was unwarranted in such circumstances. We have also noted that in paragraph No.7 of the impugned judgment, the learned trial Court made a tentative and passing remarks with regard to the merits of the application' for leave to appear and defend the suit and has not applied judicial mind to the merits of the application.

5. Apart from this, the learned trial Court should have recorded some evidence of the plaintiff-respondent to evaluate genuineness of the case.

6. For what has been stated above, this appeal is allowed the case is remanded and the applications filed by the appellant for leave to defend and condonation of delay shall be deemed to be pending before the learned trial Court. The same shall be decided in accordance with law. No order as to costs. First Appeal Accepted. H.B.T./M-392/L Case remanded.