2024 PLP 681 (MLD)

Muhammad Faisal Kamal Alam, J.

Record shows that Notice of this Appeal has been served upon Respondent. A fixed date was given, but despite repeated calls the said Respondent is not present. In compliance of last Order RPs of Summary Suit No.29 of 2018 has been called and perused, to consider the observation, made on last date of hearing about service of Summons of the above Lis upon present Appellant. Summons issued to present Appellant is at page-37. Record shows it was served bearing date of 23.06.2019. From the present record learned counsel has referred to his Application at page-27, that Appellant appeared before the learned Trial Court and sought time to engage a counsel, which was given. He has also referred to the case diary, that when on the date given by the Court, that is, 01.08.2018 present Appellant (defendant in the suit) appeared through his Counsel, it was observed that since prescribed application under Order-XXXVII sub-Rule-3 of C.P.C was not moved therefore, decree is to be passed, which was accordingly passed. Learned counsel states that there is a prescribed format for summary suits. He has referred to Form No.IV of Schedule-I, Appendix-B of Civil Procedure Code and states that it is specifically mentioned that while effecting service on defendants, a copy of the plaint is to be annexed along with the claim and with a caution that within Ten days leave has to be obtained from the Court. He then compared the said prescribed summons with the summons issued in the present case. On comparison contention of the counsel is correct. In the present case the Summons was issued in the ordinary course and neither it contains the wording that copy of the plaint is annexed nor there is any caution that leave is to be obtained from Court within ten days. He has relied upon the judgment handed down by the learned Lahore High Court and reported in 1993 MLD 2320 [Sikandar v. M. Asif], wherein too summons of the summary suit served upon the appellant [of the reported case] was not in the above prescribed format; it is held, that Court while deciding such kind of cases has to consider the record minutely. In the present Appeal one of the grounds is that present Appellant has not executed the subject promissory note. He has argued that the subject promissory note is not issued by the present Appellant and this being a prima facie triable issue, a chance should have been given by the learned Trial Court to file the leave to defend application. In view of the above undisputed facts, summons issued for a suit filed under summary Chapter of C.P.C. has to be specific, because in case of failure there is a requirement, that a decree is to be followed. Secondly, the nature of summary- jurisdiction is that, unless a plausible case is made out by defendants in the leave to defend application, usually the suit is decreed without a full dress trial. The intent of the legislature for enacting such statutory provisions is that commercial disputes should be concluded and decided expeditiously, without going into procedural requirements of Civil Procedure Code, but, at the same time it does not mean that defendant on the other hand is not given an opportunity of fair trial. Undisputed facts of the present case clearly show that summon as required under Order-XXXVII of C.P.C. was not issued to present Appellant/defendant in the suit. Secondly he did appear on the date mentioned in the summons, that is, 23,06,2018 and even on that date he was not asked by the learned Court about receiving copy of the entire plaint and annexures. In my considered view this gross procedural lapse is also violative of Article 10-A of the Constitution of Pakistan, as it deprived the present Appellant from a fair opportunity of hearing and trial. Consequently, this Appeal is allowed, the impugned order is set-aside, case is remanded to the Trial Court for deciding afresh. Learned Trial Court would notify the Parties hereto and Leave to defend application will be filed within the statutory period which will be first decided by the learned Trial Court before proceeding further. JK/H-10/Sindh Appeal allowed