2008 PLP 1612 (CLC)

SYED ASGHAR HAIDER, J.

The respondent filed a suit for recovery of Rs.1,50,000 under the provisions of Order XXXVII, C.P.C. on the basis of a cheque allegedly issued by the petitioner in favour of the respondent. Notice in ordinary manner was issued to the petitioner/defendant and he was served in person on 24-10-2007. He filed an application on 8-11-2007, to seek leave to defend the suit. It was dismissed holding that it was barred by afflux of time. Aggrieved thereof the present petition.

2. The learned counsel for the petitioner contended that the proceedings were filed against him under the provisions of Order XXXVII, C.P.C. which mandates that summons have to be issued in form 4 to Appendix "B" of the Code of Civil Procedure, 1908, this is a sine qua non, for effective service of the defendant, in case the summons is not issued in the prescribed form, it is violative of the spirit of law and tantamounts to non service in the eye of law. The record clearly reflects that no summon as contemplated by Order XXXVII, rule

2. C.P.C. was issued by the learned trial Court, in fact, an ordinary notice was issued, therefore, requirements as ordained by law were not fulfilled, the petitioner was not served properly, consequently the dismissal of his application on the basis of Limitation is unwarranted, as no effective service took place.

3. The learned counsel for the respondent contended that Article 159 of the Limitation Act prescribes a period of 10 days for filing an application to appear and defend the suit under the provisions of Order XXXVII, C.P.C., the defendant admittedly was served on 24-10-2007, he thus could file an application for leave to appear and defend the suit by 3-11-2007, but the same was filed on 8-11-2007, thus it clearly was filed beyond the period of limitation as granted by law and rightly dismissed. The impugned order, therefore, is unexceptionable.

4. Heard.

5. The provisions of Order XXXVII, C.P.C. contemplate a summary procedure for trial of suits, it normally applies to commercial transactions and can be filed on the basis of a bill of exchange, Hundi, promissory note and cheque etc. The purpose of this enactment is to ensure quick decision of the dispute on one hand and limit the right of defence of a delinquent defendant to defend the suit unless he obtains leave of the Court by showing good cause. This is a special procedure, therefore, every provision enacted is required to be adhered to and strictly followed. The language couched in Order XXXVII, rule 2, reads:

"All suits upon bills of exchange, Hundies, or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4, in Appendix B or in such other form as may be from time to time prescribed." Therefore, to ensure effective service of the defendant law has made it incumbent and mandatory that summons be issued in Form 4 to Appendix "B" of the Code of Civil Procedure, 1908. Form 4 Appendix "B" reads as:

No.4 summons in summary suit on negotiable instrument (Order XXXVII, rule 2). (Title) (Name description and place of residence) Whereas __________ has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. ___________ balance of principal and interest due to him as the __________ of a ____________ of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. ___________ and the sum of Rs. __________ for costs (together with such interest, if any, from the date of institution of the suit as the Court may order). Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit. Given under my hand and the seal of the Court, this _________ day of _______ 20 _________ Judge

6. The procedure devised under Order XXXVII, C.P.C. is a special procedure. As the procedure devised is special and also summary in nature, therefore, obviously safety valves were incorporated to safeguard the interest of the defendant as well, otherwise he would be placed in a disadvantageous position qua the plaintiff. Therefore, it is mandatory that summonses, which accompany the plaint, are in special format prescribed by law, indicating the principal amount due, the interest thereon and also the duties cast upon the defendant warning him of consequences in case of non-compliance and penal provisions. Because normally litigants are not acquainted with this procedure, and an ordinary notice, would not dwell upon their rights and liabilities, therefore, the purpose of this summons is also to intimate the defendant of his rights in law and avoid confusion of filing a written statement in ordinary course of defence in a suit, the time frame for which is also different. Thus, if the summon is not issued in Appendix B Form No.4, it is fatal to the character of the suit, and the natural consequence thereof is that the suit is to be tried as a normal civil suit for which, obviously the procedure is by contesting the same by filing a written statement, and there is no need to obtain leave of Court.

7. The present suit although was filed under the provisions of Order XXXVII; C.P.C., but the summons/notice, issued, was not in Appendix "B" Form No.4, therefore, the suit obviously lost its nature and character and was thus required to be tried as a normal suit, the bar, therefore, of filing an application to obtain leave to defend the suit was wrongly applied, as the application was not required to be filed, therefore, the question of dismissing it on the ground of limitation was improperly invoked. The impugned order is thus not tenable. I am fortified in this view from the following precedents:

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 and Zubair Muhammad v. United Bank Limited 2004 CLD

112. Resultantly this petition is allowed, the impugned order is set aside, the trial Court shall proceed to try the same in accordance with the procedure devised for ordinary civil suits, itself or by a Court of competent jurisdiction. M.H./W-18/L Revision allowed.