P L D 2012 Lahore 204 (PLP)

MUHAMMAD AMEER BHATTI, J.

This revision petition has been brought to challenge the order dated 22-11-2010 passed by the learned Additional District Judge, whereby the application for leave to defend filed by the present petitioner has been dismissed being time barred.

2. The Brief facts of the case are that the suit for recovery of Rs.8,00,000 on the basis of a cheque had been filed on 13-7-2010 by the respondent against the present petitioner before the learned District Judge Gujrat. In the suit, besides issuing summons in the ordinary manner, the summons had been published in the newspaper to effect the service of the present petitioner. However, the petitioner appeared on 7-8-2010 along with his counsel who filed the power of attorney on behalf of the petitioner before the duty Judge, as the Presiding Officer of the said Court had already been transferred. The duty Judge adjourned the case for 24-8-2010 for filing of reply and on said date case was again adjourned by the duty Judge for filing reply for 2-9-2010. However on 2-9-2010 case was entrusted by way of transfer to another learned Additional District Judge and on the said date, the present petitioner filed an application for leave to appear and defend the suit. This application was hotly contested by the present respondent/plaintiff on the main ground that the same had been filed after lapse of required period of limitation and during the pendency of this application, another application for condonation of delay had been moved which too was contested by the plaintiff/respondent and the learned Presiding Officer/Additional District Judge vide his order dated 22-11-2010 dismissed the application for condonation of delay and consequently the application for grant of leave to appear and defend the suit was dismissed being time-barred. This order has been impugned before this Court through this civil revision on the main ground that the petitioner had not been served in accordance with the provision of Order XXXVII, Rule 2 Sub-Rule 1, C.P.C. and this aspect has been ignored by the learned Trial Court. Further contends that the limitation of ten days had expired during the vacations, therefore, the petitioner was entitled to get the benefit of section 4 of the Limitation Act, hence by not exercising the jurisdiction vested in it, the learned trial Court committed illegality and material irregularity. Further contends that till 2-9-2010, the Court was vacant as no Presiding Officer was holding the Court and it was the date i.e. 2-9-2010 when the case was first time entrusted to a functioning Court, hence the period when the Court remained dis-functional cannot be counted for the purpose of limitation. Learned counsel for the petitioner further contends that the copy of the plaint was not delivered to the defendant at any stage of the proceedings and it is the requirement of law that the service will not be effected unless the plaint is delivered to the defendant. It was further contended that the orders of the Court did not indicate that the petitioner/defendant was warned by the Court on the day when he appeared in the Court that the same was the very last day for him to file application for leave to appear and defend the suit. So there being shared lapses on the part of the defendant as well as on the Court, the delay could have been condoned in such like cases. On the above contentions, the petitioner has placed reliance on (2005 YLR 2450) Sh. Salu-ud-Din v. Ahmed Saeed, (PLD 1990 Peshawar 71) Lal Muhammad through Legal Heirs v. Allied Bank of Pakistan Ltd. and 2 others, (2007 MLD 1613), Muhammad Riaz v. Syed Ibrar Shah, (2010 YLR 1422) Muhammad Aamir Rauf v. Ahmad Nawaz, (PLD 1998 Lahore 163) Abdul Karim v. Nazir Ahmad, (2003 CLC 1233) Haji Muhammad Ali v. Muhammad Ramzan, (2001 MLD 1759) Zahoor Ahmed v. Asif Hussain, (1993 CLC 2217) Cotton Export Corporation of Pakistan (Pvt.) Limited v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others, (2008 CLC 1612) Waseem Iqbal v. Tanveer Ahmad, (2008 MLD 109) Ghulam Muhammad v. Abdul Ghaffar and (1986 CLC 2356) Muhammad Amin v. Ali Ahmad.

3. On the other hand, the learned counsel for the respondent/ plaintiff contends that apart from the service through summons, the service upon petitioner/defendant has also bee affected through publication. It is added that filing the power of attorney on 7-8-2010 leaves no occasion for the petitioner to keep the matter pending for filing the leave to appear and defend the suit till the opening of the Court. Further contends that even if the benefit of section 4 of Limitation Act be extended to the petitioner, the application for leave to defend had to be filed on 1st September, 2010 and evidently the application for leave to defend had been filed on 2-9-2010, that too without any explanation for this delay as it is settled law that each and every day is to be explained for getting the benefit under section 5 of the Limitation Act. Further contends that the even if it is presumed that the defendant has not been served but after his volunteer appearance before the learned Trial Court, the application for leave to defend was to be filed within the period of ten days as provided under section 159 of the Limitation Act, 1908 from the date of appearance i.e. 7-8-2010, he is presumed to have been served and the period of limitation would run from the date when the defendant appeared before the learned Trial Court. While relying on (1999 SCMR 2353) Messers Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Ltd. Karachi through President and 3 others, further contends that the period for the purpose of computing ten days will be the date of publication of the summons in the newspaper and there is no justification on behalf of the petitioner to wriggle out from this situation, as the publication has been made on 6-8-2010, as such the petitioner/defendant was bound to file the leave to defend within ten days which he failed therefore, the application has been rightly held time-barred by the learned Trial Court. Learned counsel for the respondent further contends that though the application for leave to defend was filed on 2-9-2010, yet application for condonation of delay had been filed on 27-10-2010. In this way, neither the application for condonation of delay was entertainable nor the delay could have been condoned on such a belated application. With regard to the above contents reliance has been placed on (PLD 1986 Lahore 124) Bagh Ali v. Habib Bank Ltd. and 2 others, (2004 SCMR 836) Mian Muhammad Amjad Amin v. Rana Bashir Ahmad, (2007 YLR 2482) Muhammad Ramzan Shakir v. Muhammad Mushtaq, (2006 CLC 618) Muhammad Shareef v. Muhammad Ramzan and 3 others, (PLD 1985 Lahore 610) Lal Khan v. Allah Bakhsh and others, (1980 SCMR 375) Ikramullah and others v. Said Jamal.

4. I have considered the arguments and gone through the record of the case with the erudite assistance of the learned counsel for the parties.

5. It is noticeable that petitioner/defendant is a resident of Bagiana Kalan, Bhai Phheru/Phhoolnagar District Kasur whereas another address mentioned in the plaint is Moon Market, Allama Iqbal Town, Lahore. From the address mentioned in the plaint, it is found that the suit was filed at District Gujrat and the residence of defendant/petitioner has been shown in the plaint outside the District Gujrat. According to the provision of law, the service of the petitioner/defendant had to be effected as provided under Order V, Rules 21 and 23, C.P.C. It is appropriate to re-produce the Order V, Rules 21 and 23 C.P.C. for ready reference:-- ORDER V, RULES 21 and 23, C.P.C. "Service of summons where defendant resides within jurisdiction of another Court.

A summons may be sent by the Court by which it is issued, whether within or without the Province, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides."

23. Duty of Court to which summons is sent.-The Court to which a summons is sent under Rule 21 shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto. The order of the learned Trial Court has been scrutinized in the light of these provisions of law and it is found that while issuing the summons to the petitioner/defendant, these provisions have been overlooked, which are mandatory and a sine qua non for the service of defendant/petitioner. The tenor of the orders of learned Additional District Judge as well as the duty Judge shows that the summons were not sent to that Court for the service of the respondent in whose territorial jurisdiction the petitioner/defendant was shown to be residing in the plaint. According to this provision no direct summons for the service of the defendant shall be issued to the defendant except as provided under Order V, Rule 21, C.P.C. Obviously, the entire exercise carried out by the Presiding Officer to effect the service of the petitioner/defendant has been made in violation of the mandatory provision of law therefore, lost its legal sanctity, hence not tenable in the eye of law and liable to be struck down on this short ground. Even otherwise, the order dated 29-7-2010 shows that provision of substituted mode of service i.e. publication in the newspaper has been wrongly drawn by the learned Presiding Officer, as there is no justification to adopt the substituted mode for service unless Court does not reach to the conclusion that "the defendant was keeping out of the way for the purpose of avoiding service" but in the present case the learned trial Court vide his order dated 29-7-2010 held that the service of the defendant was not possible in the ordinary way, although on the said date it was observed by the learned trial Court that summons along with service had not been received from the other district. But there is no finding to the effect that "the defendant was keeping out of the way for the purpose of avoiding service". The only ground on which the learned trial Court had ordered the substituted service is that it was not possible to have the defendant served in the ordinary manner, which otherwise is not supported on the basis of the record. It is clearly borne out from the record that no provisions of law have been observed by the learned trial Court. In these circumstances the order for substituted service is not appreciable. It is settled law that when the law has provided a particular mode for a particular thing to be done in a particular manlier, then it should be done in that manner or it should not be done at all. Reliance is placed on 2007 SCMR 307 Raja Humayun Sarfraz Khan and others v. Noor Muhammad and (PLD 1971 SC 61) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others. There is neither any evidence on the record nor anything mentioned in the order whether this notice from the Court wherefrom it should have been sent under Order V, Rule 21, C.P.C. to effect the service of the petitioner/defendant, has been received back according to Order V, Rule 23, C.P.C. or an enquiry has been held for that purpose as required by Order V, Rules 17 to 19, C.P.C. Hence the order of the substituted service in such like manner is not within acceptable limits, as such, no service has been effected on the petitioner as provided under the law and the entire exercise done by the learned Presiding Officer is declared unlawful, without lawful authority and illegal.

6. The voluntary appearance of the petitioner on 7-8-2010 and on 24-8-2010 before the duty Judge and thereafter on 2-9-2011, the application for leave to defend has been moved, was declared time barred as it was beyond ten days period provided under Article 159 of Limitation Act. It is the basic requirement of law as provided under Order XXXVII, Rule 2 Sub-Rule (1) that the summons shall have been issued in form 4 appendix 'B' and the requirement of this form is that a copy of the plaint shall be annexed with this summon. The interim orders of the learned Trial Court show that neither the summons have been sent to the defendant/petitioner according to the Order V, Rule 21, C.P.C. nor substituted service has been ordered in accordance with law as observed ibid. Moreover, it is a condition precedent of the form 4 that not only the plaint shall be attached but also a period for filing the leave to appear and defend the suit shall have been mentioned in the form/summons. It is appropriate to reproduce the form 4 appendix 'B': FORM 4 APPENDIX B. No.4. SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O.XXXVII, R.2). (Title) To (Name, description and place of residence) WHEREAS has institute 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 the 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. The bare reading of the form 4 forces to this irresistible conclusion that it is mandatory that besides accompanying the plaint, the summons must reflect, principal amount due, the interest thereon and also duties cost upon the defaulting party, thus warning him of consequences in case of non-compliance and penal provision. The underlying purpose of this summons is also to intimate the defendant of his rights in law and also bringing to his notice that the suit is under special provisions of law, meaning thereby, these provision of law entail different/dire legal implications as compared to ordinary course of defence in a suit. Unless the form 4 along with plaint is not served upon the petitioner, the basic requirement of law cannot be presumed to have been fulfilled. So, it is not only the duty of the Court to issue the summons but also the Court is obligated to issue summons according to the form 4, so that the defendant should attend the Court proceedings with a prepared mind as intended by the summary trial under Order XXXVII, C.P.C. Unless this information is not conveyed to the defendant in the required mode and manner, no delay or default can be attributed about availing the remedy i.e. filing of application for leave to defend within limitation provided under the law. In short, the summon/form 4 is not an ordinary notice, it has some special intention and rationale behind it, differentiating it from an ordinary trial. Since the suit under Order XXXVII, C.P.C. is a summary procedure, this special form 4 has been specially formulated wherein not only a plaint must have been attached so as to notify the defendant about the pendency of the case but also inform him through this form 4 that he has only specified (limited) period to approach the Court for getting the permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto. Nevertheless, the subsequent interim orders of the Court do not represent that any warning for seeking the leave to defend or handing over the copy of plaint to the defendant is issued. Moreover, it has been noticed that learned duty Judge on 7-8-2010 and 24-8-2010 directed the petitioner/ defendant to file the reply, which amounts to creating confusion and this omission on the part of the learned duty Judge is the major cause of filing of application for leave to appear and defend the suit in the Court, out of time. Had the Court warned the petitioner/defendant by handing over the copy of the plaint for filing of leave to defend as required by law, the position would have been altogether different. The petitioner has been victim of the act of the Court, which furnishes sufficient cause for condonation of delay. Therefore, the filing of application for leave to appear and defend the suit on 2-9-2010 cannot be held to be time-barred due to the negligence on the part of the petitioner/defendant alone.

7. For what has been discussed above, I have come to the this conclusion that the basic provisions of law have been violated by the learned Trial Court and the defendant/petitioner alone cannot be made to undergo penal consequents in the face of contributory negligence on the part of Court. It is settled law that no person should suffer for act or omission of Court and act of Court should not prejudice anyone. Reliance is placed on (2005 SCMR 720) Mian Muhammad Talah Adil v. Mian Muhammad Lutfi.

8. In consequence of exhaustive discussion ibid, this revision petition is allowed. Consequently, the order impugned dated 22-11-2010 passed by the learned trial Court is set aside and application for leave to appear and defend the suit will be deemed to be pending before the learned trial Court, who shall decide the same on merit strictly in accordance with law. Parties are directed to appear before the learned District Judge Gujrat on 26-1-2012 who shall take on the matter either himself or entrust it to any Additional District Judge for its decision within a period of four months from this order. No order as to costs. S.A.K./J-2/L Revision accepted.