P L D 1986 Karachi 444 (PLP)

The plaintiff has filed this suit under Order XXXVII, rule 2 for recovery of Rs. 1,30,000 on the ground that the defendant had issued two cheques, dated 1‑5‑1982 and 5‑5‑1982 for Rs. 50,000 and Rs. 80,000 respectively which on presentation were dishonoured. It seems that although the suit was entitled under Order XXXVII, C. P. C. ordinary summons was issued to the defendant, for filing written statement. The defendant filed an application under section 148 for extension of tune for filing written statement. Later, he filed‑written statement and also application under Order XXXVII, rule 3, C. P. C. and another application under section 5 of the Limitation Act. On 2‑3‑1986 the matter came up for hearing when applications namely, application under Order XXXVII, rule 3 and application under section 5 of the Limitation Act were fixed for hearing. On that day order was passed holding that as the ordinary summons was issued to the defendant, he could not be expected to file an application under Order XXXVII, rule 3, C. P. C., and therefore, application under section 5 was held to be redundant and was dismissed. However, the learned counsel for the plaintiff wanted to file counter affidavit to application under Order XXXVII, rule 3, C. P. C. which was allowed. The parties have filed their counter‑affidavit and rejoinder. Mr. Abdul Rashid the learned counsel for the defendant has contended that as the ordinary summons was issued to the defendant, he was. not required to file an application under Order XXXVII, rule 3 and in pur suance of summons written statement was filed. Accordingly to him the application under Order XXXVII, rule 3 has been filed by way of abundant caution which in the facts and circumstances was not necessary. Mr. Muhammad Shafi Muhammadi contended that he was under the impression that the summons has been issued under the form provided by Order XXXVII, C. P: C. Under Order VII, rule 9 the plaintiff is required to supply draft form of summons alongwith the plaint. It is the duty o A the plaintiff to furnish proper summons and fee for service, to the office, for issuance to the defendant. The summons were thus issued in the Form provided by Order V, C. P. C. due to the mistake of the plaintiff. The question is whether in these circumstances a defendant can be required to file application under Order XXXVII, rule 3 for leave to appear and defend the suit. Order XXXVII provides summary procedure for suits' based on bill of exchange, Hundis or promissory notes. Order XXXVII, rule 2 provide that all such suits are to be instituted by presenting a plaint in the prescribed form. But no form for the plaint. has been prescribed. Reference can be made to Habib Bank Ltd. v. Kayece Corporation Karachi (P L D 1980 Kar. 143). This Rule further provides that the summons shall be in Form No. 4 in Appendix 'B' or in any other prescribed manner. The summons in Form 4 informs the defendant to obtain leave from the Court within ten days from the service thereof, to appear and defend the suit and in default the plaintiff will be entitled to obtain a decree. The form of summons issued under Order XXXVII, rule 2(1) is completely different from the ordinary summons issued under Order V, rule 1, C: P. C. This makes a difference as by the summons issued .under Order XXXVII, rule 1 the defendant is not required to file written statement but asked to obtain leave to appear and defend the suit within the prescribed time. He is further warned of the consequences which may follow in case of default. Order XXXVII, rule 2 provides that where the plaint and summons are in the prescribed form the defendant will not be allowed to appear and defend the suit unless leave to appear and defend is obtained from the Court. Further that in default the averments made in the plaint shall be deemed to be admitted and .the . plaintiff shall be entitled to a decree. This clearly follows that unless the summons is in the prescribed form the question of seeking leave to appear and defend does not arise. As Order XXXVII, rule 2 provides a particular mode of summons and penalises the defendant for its non‑compliance, it has to be treated a mandatory and should 'strictly be complied with. In the present case summons was issued in the form required by Order V, C. P. C., therefore, although the suit was filed under Order XXXVII, the summons was no issued as provided by Order XXXVII, rule 2, the defendant could not be required to seek leave to appear and defend the suit. The application filed under Order XXXVII, rule 3 was by way of abundant caution and completely redundant. It is dismissed and the written statement filed by defendant is accepted on record. M. B. A. Appeal dismissed.