P L D 2018 Sindh 163 (PLP)

Reader Additional District Judge (Hudood) Sukkur" (Emphasis added)

9. It is evident from the above notice that although it was mentioned therein that a summary Suit had been filed against the applicant/defendant, but he was called upon to the objections instead of an application for leave to appear and defend the Suit as specifically provided for in Rule 2(2) of Order XXXVII of the Code. Since the Suit in the present case was filed under Order XXXVII of the Code, summons therein were to be issued only in Form No.4. of Appendix B as specifically provided for in Rule 2 of Order XXXVII C.P.C., which reads as under: "

2. Institution of summary suits upon bills of exchange. etc. (1) All Suits upon bills of exchange, hundis or promissory notes, may, in case the plaintiff desires to proceed thereunder, 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. (2) In any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the Suit unless he obtains leave from a judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree ........"

10. A bare reading of Rule 2(1) of Order XXXVII of the Code shows that the requirement of issuance of summons in a Suit under Order XXXVII of the Code in Form No.4 of Appendix-B is mandatory because of the word "shall" used in the said Rule. Moreover, non-filing of application for leave to appear and defend by the defendant within the statutory period of ten days stipulated in the summons entails an adverse consequence against him. The contents and language of the said Form No.4 are of extreme importance, therefore, the same is reproduced below for convenience and ready reference: "No.4. SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O.XXXVII, R.2) (Title) To [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 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. GIVEN under my hand and the seal of the Court, this Day of . 19.... Judge" (Emphasis added)

11. Through the summons in the above-quoted Form No.4 prescribed in Appendix-B of the Code specifically for Suits filed under Order XXXVII of the Code, the defendant in such Suit is "summoned" to cause appearance in order to obtain leave from the Court within ten days from service to appear and defend the Suit by means of an application supported by an affidavit and showing that there is a defence to the Suit on merits; and, the defendant is also put on notice that in case of his default/failure, the plaintiff will become entitled to a decree. In case summonses are not issued in the said prescribed form or are not issued at all, the defendant will be totally unaware about the claim made against him by the plaintiff, the mode in and the time within which he has to defend himself and the consequences of not defending the Suit in the prescribed manner and within the prescribed limitation. Any such omission in issuing the summons or deficiency therein shall cause extreme prejudice and hardship to the defendant, and any adverse order or decree against him in such circumstances will be bad in law.

12. We have seen in the present matter that summons were not issued at all, let alone summons in prescribed Form No.4 of Appendix-B in terms of Rule 2(1) of Order XXXVII of the Code. Thus, the entire proceedings and the impugned ex-parte order passed therein were illegal and are liable to be set aside. In addition to the above, record shows that contention of learned counsel for the applicant that publication in newspaper was in respect of a Family Suit and not for the subject Summary Suit, is also correct. It is surprising and disappointing to note that the above blunder of not issuing summons in the form specifically prescribed for Summary Suits was committed by an Additional District Judge who is a senior Judge of the District Judiciary.

13. In view of the above discussion, the impugned ex-parte order is set aside. The learned District Judge Sukkur is directed to transfer Summary Suit No.03/2016 (Shahid Umar v. Abdul Qadir) from the Court of learned 1st Additional Judge Sukkur to his own Court, and to proceed with the said Suit from inception strictly in accordance with law by issuing summons in the prescribed form and manner.

14. Foregoing are the reasons of the short order announced by me on 18.12.2017 whereby the impugned order was set aside anti this Civil Revision Application and C.M.A. No.1082/2017 pending therein were allowed with no order as to costs. Office is directed to return R&P of the above mentioned Suit forthwith to learned trial Court for compliance. MH/A-19/Sindh Case remande