2023 PLP 1131 (CLC)

SAFDAR SALEEM SHAHID, J.

This first appeal has been directed against the judgment and decree dated 29.10.2021, whereby the learned Additional District Judge, Ferozewala, while rejecting the application for leave to defend filed by the appellant, decreed the suit filed by the respondent under Order XXXVII, C.P.C., for recovery of Rs.2,70,00,000/- on the basis of cheque.

2. Brief facts necessary for the decision of the instant appeal are that the respondent on 18.03.2020 filed a suit under Order XXXVII, C.P.C., for recovery of Rs.2,70,00,000/- alleging that he being owner of agricultural land along with urban as well as commercial properties situated within the revenue estate of Marri Chehlan, Tehsil Muridke, District Sheikhupura, hired the services of the appellant as Mushi/Manager to manage the said properties and he was managing all the works for the last more than two decades. The appellant also being a far off relative of the respondent, used to rent out and receive the rent of the properties. Few months ago the respondent having noticed changes in the living standard of the appellant probed into the matter and came to know about misappropriation of his property/money, which he admitted in presence of Haider Nadeem and Muhammad Farooq, and in lieu thereof issued two cheques, one for Rs.2,27,00,000/- and the other for Rs.10,00,000/-. Cheque worth Rs.10,00,000/- was encashed, whereas the other was dishonoured on presentation, so he lodged FIR No.2178/20 dated 02.03.2020 under Section 489-F, P.P.C. He prayed for grant of decree Rs.2,70,00,000/-.

3. The appellant was summoned and he appeared on 25.09.2020 through counsel, who submitted power of attorney and requested for adjournment for filing application for leave to defend. The case was fixed for 03.10.2020, when again on request of learned counsel for the appellant the case was adjourned to 07.10.2020 for filing of application for leave to defend. On 07.10.2020 the appellant filed application for leave to defend and the case was fixed for arguments on the said application. However, the learned trial Court, after hearing the arguments, dismissed the application for leave to defend holding the same to be time barred and decreed the suit of the respondent, through judgment and decree dated 29.10.2021.

4. Arguments heard. Record perused.

5. Admittedly, suit filed by the respondent summary in nature under Order XXXVII, C.P.C, and summonses in such matters were required to be issued on Form IV of Appendix B, C.P.C. and it was imperative that copy of the plaint and all the annexures should be sent to the defendant along with the summons and without fulfillment of that requirement, it could not be held that service was properly effected. In the circumstances, even if the defendant has been served with summons, without copy of the plaint, and he has appeared before the Court, the limitation would not run till the time he is supplied with a copy of the plaint for the reason that only on provision of copy of plaint he would gain knowledge as to what nature of suit is pending against him. Reliance in this regard can be placed upon the case of Khushi Muhammad v. Muzammal Khatoon and 10 others (2014 YLR 1779), Abdul Karim v. Nazir Ahmad (PLD 1998 Lahore 163).

6. Under Article 159 of the Limitation Act, 1908, limitation for filing application for leave to appear and defend is ten days, which starts from the date of service. A perusal of the record reveals that the appellant/defendant in this case could not have been served through summons, but he was served through publication of notice in the newspaper. Even on his appearance before the Court, through his counsel on 25.09.2020, he was not provided a copy of the plaint and the annexures. It was the responsibility of the plaintiff to provide copy of the plaint along with annexures to the defendant and not that of the defendant/appellant to demand a copy thereof. Purpose behind issuance of summons along with copy of the plaint and the annexures is that the defendant/appellant should gain knowledge of pendency and nature of the suit against him. The duty of the Court is not only to issue summons but the Court is also obliged to issue summons according to the Form IV, so that the defendant should attend the Court proceedings with a prepared mind, as intended by the summary trial under Order XXXVII, C.P.C. Unless the defendant is not informed regarding pendency of case in the required mode and manner, no delay or default can be attributed to him regarding filing of application for leave to defend within the limitation provided by law. There is some special intention behind it that suit under Order XXXVII, C.P.C, is differentiated from the ordinary suit and summary procedure has been provided for such a suit, for which Form IV has been specially formulated, wherein not only a plaint must have been attached in order to notify the defendant about the pendency of the case but also inform him through this Form that he has only limited period to approach the Court and get permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto. Unless the defendant is handed over copy of the plaint for filing of leave to defend as required by law, no delay or default can be attributed to him. Reliance in this regard can be placed on the case of Muhammad Yasin v. Sheikh Muhammad Pervaiz (2012 CLC 1141).

7. In addition to the above, the defendant/appellant appeared before the Court on 25.09.2020 through counsel and requested for time to file leave to defend. On the next date i.e. 03.10.2020 another request for adjournment for the purpose was made and the Court adjourned the case to 07.10.2020 for filing the application for leave to defend. Record does not show that even till that time defendant was provided copy of the plaint. In case it is considered that limitation was to run from the date of appearance of the appellant before the Court i.e. 25.09.2020, even then it is to be noted that the Court itself allowed him to file the leave to defend on 07.10.2020 and he filed the same on that very day. Since the application for leave to defend was filed within the time granted by the Court, the observation made by the trial Court regarding non-filing of application for condonation of delay is misconceived. When a request for adjournment was made, the trial Court should have kept in mind the period of limitation while granting time for filing the leave to defend and since the Court itself granted time till 07.10.2020, the said delay and default was not attributable to the appellant.

8. There is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man). As such, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law. Reliance in this regard can be placed on the case of Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. (2016 SCMR 834).

9. In the instant case, since the Court itself had granted time for filing the application for leave to appear and defend and the appellant had filed such application within the time granted, the facts of cases relied upon by the leaned counsel for the respondent are distinguishable from that of the case in hand and as such are not of benefits for him.

10. For what has been discussed above, the instant appeal is allowed, the judgment and decree dated 29.10.2021 passed by the learned trial Court is set aside and the case is remanded back for decision afresh, after affording opportunity of hearing to both the parties, in accordance with law. There shall be no order as to costs. MHS/S-40/L Appeal allowed.