2015 PLP 1159 (CLD)

SHAHAB SARKI, J.

This Civil appeal has been filed against the judgment dated 12-2-2014 passed in Summary Suit No. 27 of 2012 Re -Khuda Bux v. Amir Ali passed by IIIrd Additional District Judge, Khairpur and consequent decree dated 17-2-2014. Briefly stated the facts of this appeal are that respondent/ plaintiff filed a summary suit against the appellant stating therein that the appellant/defendant borrowed a hum of Rs. 350,000 from him on 13-5-2012 for a period of one month and issued his Cheque dated 15-6-2012. Thereafter when the above referred Cheque was dishonoured upon presentation the subject suit was filed on 11-10-2012 which was duly registered and notices were ordered to be issued. The notices remained unserved for a few days and they were repeated on 17-11-2012 whereafter on the next date of hearing on 27-11-2012 the appellant was present in person and he moved his application seeking time for engaging Counsel and he also requested for grant of copies of the plaint. On the next date of hearing on 3-12-2012 his counsel duly filed Vakalatnama and again sought adjournment on the ground that copies of the plaint had not been served upon him. On 6-12-2012 the copies were supplied to the counsel for .the appellant/defendant and he sought time to file application for leave to defend which was filed on 15-12-2012 thereafter objections were filed on the application for leave to defend and after hearing, the said application was dismissed being barred by time, whereafter the impugned judgment and decree were passed. Mr. Tariq G. Hanif Mangi learned Counsel for appellant, has argued that the service was not effected upon him as per the requirements and mandatory provisions set-out in the Civil Procedure Code and since the copies of the plaint were not provided to him, therefore, the appellant and the Counsel sought time and when they were supplied to him on 6-12-2012 then within 10 days i.e. on 15-12-2012 he filed his leave to defend application which was within time and it was wrongly dismissed by the trial Court. He further argued that infact the matter has proceeded ex parte and he has not been provided an opportunity to lead his defence and has been condemned unheard and he has prayed for setting aside the judgment and decree as they have been passed without consideration of his leave to defend application. In this regard he has placed the reliance upon PLD 1984 Karachi 252 (Ali Akber v. Gulzar Ali Shah) and 1993 CLC 2217 Karachi (Cotton Export Corporation of Pakistan (Pvt.) Limited v Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others. Miss Lubna Jaffery the learned Counsel for the respondents on the other hand has argued that no illegality or irregularity has been committed by the trial Court while passing the impugned judgment and decree and therefore, it does not warrant any interference. She has further argued that since the original of the Cheque and the written memo were duly presented before the trial Court, therefore, the judgment and decree was proper and within the four corners of law. She has finally argued that the appellant was present in person on 27-11-2012 and he should have filed the leave to defend application within 10 days thereof, and further that the order dismissing the leave to defend application has not been assailed by the appellant. The learned counsel in rebuttal, has argued that it is a settled principle of law that when an appeal is filed against the final judgment and decree it incorporates all the interim orders passed during the course of the trial and in his support has paced reliance upon PLD 1985 SC 405 (Mst. Khursheed Begum v. Ahmed Bakhsh and another). I have heard the arguments of the learned Counsel, perused the record and examined the case-law cited at bar. From the case diaries it is apparent that the appellant appeared before the trial Court on 27-11-2012 and in an application moved by him it has specifically been mentioned that he needs copies of the plaint as the same have not been supplied. He also sought time for engaging Counsel and on the next date of hearing on 3-12-2012 when his Counsel filed his Vakalatnama he also sought the copies of the pleadings. The trial Court had been granting adjournments and nowhere from the case diaries it is borne out that copies of the plaint and annexures were provided to the appellant before 6-12-2012. The leave to defend application was filed on 15-12-2012 that is within 10 days of the time when he was provided the copies. Since it is not possible for a party to file a leave to defend application without possessing the copies of the plaint filed by the plaintiff therefore, in my humble view the leave to defend application could not have been filed prior to the same. In this regard I am fortified by the dictum laid down in PLD 1984 Karachi 252 (supra), wherein it has been held as follows; "The service can be said to have been effected only if it effectively brings the claim to the knowledge of the defendant. In a suit under Order XXXVII, C.P.C. prescribed summons with the copy of the plaint should be issued otherwise the defendant will not be able to know the nature of the suit and claim involved in it and may not move the machinery expeditiously for obtaining leave to appear and defend the suit. In .the present case as the summons was not accompanied with the plaint there could not be a proper service on the appellant and, therefore, the question of computing the period of limitation under Article 159 did not arise". In view of what has been discussed above the judgment dated 12-2-2014 and decree dated 17-2-2014 passed in Summary Suit No. 27 of 2012 are hereby set aside and the matter is remanded back to the trial Court to decide afresh from the stage of hearing of leave to defend application. The trial Court will decide the leave to defend application of the appellant strictly in accordance with law within a period of one month from receipt of this order. AG/A-163/Sindh Case remanded.