1994 PLP 560 (SCMR)

RUSTAM S. SIDHWA, J: ‑‑‑Manzoor Ahmad appellant has filed this appeal against the judgment of a learned Single Judge of the Lahore High Court, Bahawalpur Bench, dated 4‑12‑1985 dismissing his regular first appeal.

2. The brief facts of the case are that on 23‑7‑1985 Muhammad Iqbal respondent filed a summary suit under Order XXXVII, rule 2, C.P.C. for the recovery of Rs.30,000 on the basis of a promissory note alleged to have been executed by Manzoor Ahmad appellant. Notice was issued to the appellant for his appearance in Court on 25‑7‑1985. It appears that the said notice was received by Allah Ditta, son of the appellant, on 30‑8‑1985. On 15‑9‑1985 the appellant petitioned the Court for permission to defend the case, but since no grounds were mentioned in the said petition justifying grant of leave and no application had been filed under section 5 of the Limitation Act for the condonation of delay of 5‑6 days, the learned District Judge, Bahawalpur, refused leave and decreed the suit for Rs.30,000 in favour of the respondent. Being aggrieved by the said judgment, the appellant preferred a regular first appeal in the Lahore High Court, but the same was dismissed by a learned Single Judge on 4‑12‑1985 as the appellant had not disclosed facts which would have made it incumbent for the respondent to prove consideration or such other facts which the Court could have thought necessary to grant leave and as no affidavit had beef filed and the application was also barred by time.

3. On behalf of the appellant it is submitted that the notice which was sent to the appellant to appear in Court on 25‑7‑1985 to defend the case contained a clear statement that the copy of the plaint was annexed thereto, but that neither the said notice nor the copy of the plaint was received by the appellant. It is submitted that since the cop of the plaint was not annexed with the notice, the notice was bad in law. In this connection the learned counsel relies upon Muhammad Amin v. Ali Ahmad (1986 CLC 2356), Mst. Balqis Fatima v. Abdur Razaq (PLD 1986 Kar 444) and United Bank Ltd. v. Ali Habib & Co. (1988 CLC 292). It is further submitted that the notice was not received by the appellant, but by his son Allah Ditta on 30‑8‑1985, who also did not inform the appellant about the date of "egg and that the appellant came to know through some relative of the respondent that some suit had been instituted against him in the Court of the District Judge, Bahawalpur, whereafter he contacted a petition‑writer old after discovering that a case had been instituted against him, he engaged the petition‑writer, who in turn engaged a lawyer, who filed the applied on seeking leave to defend, but without making inquiries from him.

4. On behalf of the respondent it is submitted that no plea was taken before the trial Court or the High Court regarding the non‑service of the plaint with the summons served on the appellant' son. It is further submitted that in the petition filed by the appellant seeking leave to defend, the facts later submitted before the High Court were not given nor was any affidavit filed therewith nor any cogent reasons advanced as would have compelled the Court to grant leave.

5. We have heard the arguments of the learned counsel for the appellant and have gone through the record. Neither before the trial Court nor the High Court any plea was taken that a copy of the plaint had not been supplied with the summons served by the Court on the appellant's son. Had such a plea been taken before the trial Court, the further question would have arisen whether service had been effected legally or not entitling the appellant to an extension of limitation for filing petition for leave defend. The said plea not having been taken before the lower Courts, cannot be permitted to be raised now. As regards the further submissions raised by the learned counsel, we agree with the view of the learned Single Judge that, was incumbent upon the appellant, as envisaged under Order XXXVII, rule 2, C.P.C. to have sought leave to defend the suit upon an affidavit disclosing such facts as would have made it incumbent on the respondent to prove consideration or such other facts which would have compelled the Court to gray such leave. Unfortunately, neither was such an affidavit filet, but the petition was barred by time, for which no application under section 5 of the Limitation Act had been filed for the condonation of delay. In these circumstances, the order of the learned Single Judge does not call for any interference. There being no merit in this appeal, the same is dismissed. AA./M‑1866/S ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.