2013 PLP 1174 (CLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioner-defendant has challenged the order dated 17-7-2012 passed by learned Additional District Judge, Jhang, whereby an application for leave to defend the suit, filed by him in a suit under Order XXXVII of the C.P.C. for recovery of Rs.20 (million) on the basis of a pro-note, was dismissed.

2. Briefly, the facts as leading to this civil revision are that the respondent-plaintiff on 27-8-2011 filed a suit for recovery of Rs.20 (million) on the basis of a pro-note dated 6-5-2009. The record of trial court is also available before this court. I have noticed that this case was filed during the summer vacation before learned Senior Civil Judge, Jhang, who sent a reference to learned District. Judge, Jhang on 12-9-2010, therefore it was entrusted to Mr. Abdul Qayyum Khan, Additional District Judge, Jhang for hearing, whereby it was registered on 19-9-2011. It was also ordered that prescribed summons in the name of defendant be issued subject to deposit of process fee as well as registered post A.D. within three days. On 6-10-2011 learned trial court noted that no report with regard to service of the defendant on his foreign address has been received and no receipt of registered A.D. has been produced. For the sake of justice again ordered for specific summons subject to deposit of process fee and registered envelope A.D. within three days and case was adjourned to 27-10-2011. On 27-10-2011 learned trial court noted that no report has been received from foreign address of the defendant, as such, it was ordered that new notice be issued for his service through registered A.D. at the expense of plaintiff to be deposited within three days and case was adjourned to 18-11-2011. On 18-11-2011 it was noted that no report from the foreign address of the defendant has been received. The court has noted that receipts of registered A.D. have been produced, therefore the substituted service through publication in daily 'Jang' Lahore was ordered and date was fixed for 14-12-2011. On this date, Ahlmad reported that fee of publication amounting to Rs.1,000 be deposited. On 3-1-2012 a counsel appeared on behalf of defendant and filed memo of appearance and stated that the defendant wants to file petition for leave to defend, therefore the case was adjourned to 7-1-2012 and application for leave to defend was filed. The reply was filed. Learned trial Court vide order dated 17-7-2012 dismissed the application. Hence, this civil revision.

3. Learned counsel for the petitioner-defendant contends that the defendant was never served through any mode. It is also important to note here that it is not on the record that by which means the notice was sent to the defendant on his foreign address. Further states that there was no report of avoiding service or even the trial court has not given any reason that why the mode of substituted service has been adopted. Learned counsel argues that when service was not effected, therefore the application filed on 7-1-2012 cannot be termed to be filed after the prescribed period of limitation.

4. On the other hand, learned counsel for the respondent-plaintiff has referred the impugned order and also read the same before the court. He argues that learned trial Court has rightly dismissed the application for leave to defend the suit and prayed for dismissal of this civil revision.

5. I have heard the learned counsel for the parties at full length and also gone through the original record of the case as well as the impugned order, with their able assistance.

6. As I have noticed above, there is no record that through which means or mode, summons were sent for the service of defendant at his foreign address, which is mentioned in the plaint and also the other address of petitioner-defendant is given of Lahore, which is certainly not within the jurisdiction of trial Court. Even the impugned order does not show that the summons on the prescribed form, which is required to be sent in Form IV of Appendix B of the C.P.C., have been sent to the court at Lahore, where the address of defendant has been given. In accordance with Order V, Rule 21 of the C.P.C. if the address of defendant is within the jurisdiction of another court, the summons be sent to that court in whose jurisdiction defendant resides. There is no record of sending summons to the court at Lahore. Even I have noticed that there is no summon on the record of the file which was sent: to the defendant. Therefore, there is no record of service upon the defendant on the file and also there is no record with the trial Court that the defendant avoided service or there was any reason with the trial Court that the defendant could not be served through ordinary means. The requirement before issuance of substituted service provided under Order V, Rule 20 of the C.P.C. has not been observed by the trial Court. As I have noted in detail the proceedings of the case and also observed that there was no occasion to order for the substituted service of petitioner-defendant in the newspaper, which is published at Lahore and same is not fulfilling the requirement of service of defendant because admittedly he was residing in the United Kingdom and furthermore, this publication also even does not fulfil the requirement of prescribed summons. There is no summons available with the original file which allegedly sent for the service of defendant at Lahore address. It is now clear that there was no proper summons issued for the service of defendant on the prescribed form and the substituted service is also not in accordance with law. When it is the position that there is no record of proper issuance of summons in accordance with Form IV of Appendix B of the C.P.C., then the disability attached to a defendant to file application for leave to defend within 10 days from the service of summons cannot be attributed to the petitioner-defendant, who got attested the application for leave to defend from the High Commissioner for Pakistan at London on 2-12-2011 and the counsel appeared on behalf of defendant first time before the court on 3-1-2012 and filed memo of appearance and then on 7-1-2012 filed application for leave to defend, therefore this application cannot be said to have been filed after the prescribed period of limitation. There was no need to file the application for condonation of delay, which was subsequently filed. In this view of the matter, in my view, this application cannot be said to have been filed after the prescribed period of limitation.

7. So far as the affidavit is concerned. Admittedly the application is authenticated, attested by the High Commissioner for Pakistan and verified. In accordance with Order XXXVII, Rule 3 of the C.P.C., the court shall give leave to appear and to defend the suit upon the affidavits, which discloses such facts as would make it incumbent upon the holder to prove consideration, or such other facts as the court may deem sufficient to support the application. In this context, light can be taken from the pronouncement of Hon'ble Supreme Court reported as "PLD 2005 Supreme Court 600 (Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others)". Furthermore, it was stated that on 6-5-2009 the execution of promissory note is alleged, the petitioner-defendant was not in Pakistan and even I have noticed that the petitioner-defendant has produced copies of his passport before the trial Court, wherefrom it is clear that he left Pakistan on 5-5-2009.

8. In the light of what has been discussed above, this civil revision is allowed and the impugned order dated 17-7-2012 passed by learned Additional District judge, Jhang is set aside. As the application for leave to defend has been filed by the petitioner-defendant, therefore learned trial Court is directed to decide the same on merits after considering the copies of passport produced by the defendant, as well as after hearing both the parties and if necessary give him opportunity to file affidavit in order to substantiate his assertions. The record of trial Court be sent back forthwith. SAK/M-1/L Revision allowed.