2012 PLP 748 (CLC)

ABDUL WAHEED KHAN, J.

Muhammad Ashfaq respondent No.1 filed a suit for recovery of an amount of Rs.26,00,000/- against the petitioner/defendant under Order XXXVII, C.P.C. on the basis of a cheque dated 24-9-2009 wherein later was summoned through, ordinary notice and summons. He filed written statement on 7-4-2011 and vide order dated 14-7-2011, the Additional District Judge, Gujar Khan struck of his right to defend the suit, which is in the following words:

"Although these lacunas are available that proper notices were not issued to the defendant but the matter in fact that till filing of wakalatnama on 22-3-2011 by the defendant till date, defendant did not make any effort to file any application for condonation of delay or he did not file any affidavit, nor he moved any application that his written statement be treated as application for leave to defend. So, in these circumstances, I found that written statement could not be treated as leave to appear and defend because affidavit or any application for condonation of delay or any objection that notices were not properly served, nor copy of the plaint was given to the plaintiff raised by the defendant till date."

2. The contentions of the counsel for the petitioner are that ordinary notices and summonses were issued and that the summonses, requiring the petitioner to file an application within the prescribed period of limitation, were not issued to him therefore, the trial court should have treated the written statement as leave to defend the suit and the same should have been decided on merits instead of striking of the right of the petitioner to defend the suit.

3. Conversely, the contentions of the counsel for the respondent are that the defendant had not been vigilant throughout the proceedings he after acceptance of notice and summons did not file an application for leave to defend the suit within the prescribed period, therefore, the trial court has rightly passed the impugned order.

4. Arguments of the counsel for the parties have been heard and record perused. A specific procedure has been laid down for summary suits under Order XXXVII C.P.C. The attested copies of the notices and summonses present at pages 25 to 27 show that the same were issued as if it was an ordinary suit for recovery of an amount. To resolve the controversy, reading of sub-Rules (1) and 2 of Rule 2 of Order XXXVII, C.P.C. is necessary which is reproduced as under:

Institution of summary suits upon bills of exchange, etc.

(1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, 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 many 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.

5. A bare perusal of the aforementioned Rule shows that in all suits upon bills of exchange, hundies or promissory notes, a plaint shall be presented in the form prescribed and the summons shall be on the Form No.4 in Appendix B which is as under:

"No.4 SUMMON 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 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 ______200... JUDGE"

6. Admittedly, the notices and summonses present at Pages 25 to 27 show that the same were issued as if it was an ordinary suit for recovery of an amount. In this view of the matter when the notices/summonses were not issued on the prescribed form available in the schedule of Code of Civil Procedure, the petitioner/defendant does not appear to be at fault. The "maxim Actus curiae neminem gravabit" (an act of the Court shall prejudice no man) is now fully engrained in our system of administration of justice. This principle was considered by the Hon'ble Supreme Court of Pakistan in the case of Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146). In the following words:

"..... the maxim "Actus curiae neminem gravabit" comes into play, with a view to obviate hardship, and which may otherwise be the result of the errors of the court itself. Thus, where a non-compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalized. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars the party acting in accordance with such directions is not held to be blameworthy." The trial court could treat the written statement as an application for leave to appear and defend the suit to meet the ends of justice.

7. For the foregoing reasons, this petition is accepted and the impugned order dated 14-7-2011 passed by the Additional District Judge, Guiar Khan is set aside. The result would be that the written statement file by the petitioner shall be treated as an application for leave to appear and defend the suit and in support whereof, the petitioner may, if so desires, file an affidavit. The parties shall appear before the trial court on 14-11-2011 for further proceedings in the matter. Revision petition allowed. Case is remanded. H.B.T./A-240/L Case remanded.