1999 PLP 3349 (MLD)

(a) Civil Procedure Code (V of 1908)

O. XXXVII, R.2, Appendix B, Form No. IV

Summons not issued in Form No. IV, Appendix B, C.P.C.

Effect

Summons not issued in such form would not vitiate judgment and decree passed by Court which otherwise was competent to decide the matter. Mian Mushtaq Ahmed for Applicant. A.R. Mirza for Respondent. This is a civil revision application under section 115 of C.P.C. directed against an order, dated 15-2-1995 passed by IVth Additional District Judge Karachi East in Suit No.7 of 1994 and Execution Application No.2 of 1992 Saleemuddin Qureshi v. Khawaja Masood Anwar whereby an application under section 12(2), C.P.C. read with section 151, C.P.C. filed by applicant for setting aside the judgment and decree passed in Suit No.7 of 1994 on 18-9-1994 was dismissed hence the present revision application. Brief facts of the case are that respondent Saleemuddin Qureshi filed a suit under Order 37, rule 2, C.P.C. for recovery of Rs.72,000 on the basis of pronote executed by applicant/defendant/J.D. for having received the said amount as friendly loan, consequently summons (though not strictly as required by law) was issued to the applicant/defendant who put in appearance before the Court and made an application under Order 37, rule 3, C.P.C. for leave defend alongwith his affidavit and no counter affidavit was filed by respondent but after hearing leave to defend was refused on 31-5-191. Accordingly the judgment and decree was passed on 31st May, 1994. applicant/defendant did not prefer an appeal against the said judgment and decree but filed an application under section 12(2), C.P.C. on 21-12-1994 which was heard and ultimately dismissed as per impugned order. The contention of learned counsel for applicant is that the summon Form No. IV, Appendix 'B' as required by rule 2 of the Order 37, C.P.C. not issued but a notice was issued and that the learned Trial Court illegally refused to grant leave to defend the suit when there was no counter-affidavit from the side of the respondent/plaintiff in respect of pleas taken by the applicant as such there was no justification to disallow the application for lea. e to defend consequently, the judgment and decree passed would be invalid and illegal. Section 12(2), of C.P.C. runs:-- "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment and decree or order and not by a separate suit." Admittedly, in the instant case, the applicant/defendant did appear in the Cot and filed an application for leave to defend the suit alongwith his affidavit when no counter-affidavit was filed by the respondent but the trial Court after hearing refused to grant permission to the applicant/defendant for leave to defend the suit. Refusal to grant leave would neither amount to fraud nor amount to mis-representation and there could not be said to be want of jurisdiction. The order if illegal, improper on factual and legal side, could have been challenged before the next higher Court but it was not challenged in appeal. Mere fact that the summons was not issued in the form prescribed would not itself vitiate the judgment and decree passed by the Court which otherwise was competent to decide the matter. The said provisions of rule 2 of Order 12, C.P .C. are not attracted in the instant case as the contentions raised not fall within the mischief of fraud, misrepresentation or want of jurisdiction. Learned counsel has placed reliance upon Muhammad Yasin v. Mst. Rafia Bibi @ Rafia Sultana and another (PLD 1983 Lah. 377), Mst. Dilbar Hamid v. Dr. Ghulam Bheek Khan and others (1997 SCMR 610); Sunni View Cooperative Housing Society v. Irshad Hussain and others (1993 CLC 2336) and Ghulam Muhammad v. M. Ahmad Khan and six others (1993 SCMR 662). The facts of cited cases are quite different and distinguishable to the facts of instant case and are of no help to the case of applicant. Accordingly, I do not find merits in the contentions and revision which is hereby dismissed. Q.M.H./M.A.K./M-284/K Revision dismissed.