2014 PLP 92 (CLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 24-10-2012 passed by the learned Additional District Judge, Rawalpindi, whereby an application moved by him in a suit for recovery of Rs. 28,00,000 (twenty eight lacs) under Order XXXVII, C.P.C. filed by the respondents against him, was dismissed and the leave to appear and to defend the suit was refused.

2. The learned counsel for the petitioner has contended that he was not served in accordance with law; that unfortunately he could not appear on the date fixed i.e. 23-1-2012 for the reasons beyond his control so was proceeded against ex parte and thereafter, he moved an application for setting aside of the ex parte proceedings and an application for permission to appear and to defend the suit on 7-2-2012; that the money was not directly payable by the petitioner and he stood surety for his son, Navid Satti during the hearing of the bail petition and was liable to make the payment only if the later was not in a position to discharge his liability; that even otherwise, under the agreement executed between the parties, the respondents had the right to move an application for cancellation of bail of Navid Satti so substantial questions of law required adjudication and as such the leave to defend should have been granted in the interest of justice.

3. The learned counsel for the respondents has vehemently opposed the petition. It is contended that under Article 159 of the Limitation Act, 1908 an application for leave to appear and defend can be filed within 10 days of the service of summons but initially the petitioner did not appear in the court and then moved the application without filing an application for condonation of the delay; that the petitioner admitted the liability in the "Jarga" and issued the cheque so a statement was made by the predecessor of the respondents in case F.I.R. No.55 of 2008 Police Station Sadiqabad to the effect that he had no objection on acceptance of the bail petition. It is urged that the liability stood admitted so no ground was available to grant leave to appear and defend.

4. The perusal of the record reveals that the petitioner was served in person on 21-1-2012. The report of the Process Server does not show that he delivered the copy of the plaint and other documents appended therewith. In a suit under Order XXXVII, Rule 2, C.P.C. the summons is to be issued on Form IV of appendix-B. It is imperative that the copy of the plaint with annexures should be sent under Order XXXVII, Rule 2(1), C.P.C. along with the summons. Unless this legal requirement is fulfilled, the service is not complete and the period of limitation does not start. For the sole reason that the copy of the plaint does not appear to have been sent along with the summons, the period of ten days prescribed for submission of the application under Article 159 of the schedule of the Limitation Act, 1908 did not start at all. Even otherwise, it is an admitted fact that the petitioner did not owe any amount directly and he had issued the cheque as surety for his son, who was involved in a case under section 489-F, P.P.C. due to issuance of a cheque with dishonest intention in a dispute over the plot. According to the agreement deed admittedly executed between the parties, the cheque was issued as guarantee and the predecessor of the respondents also reserved the right to move an application for cancellation of the bail granted to Navid Satti, son of the petitioner. Whether the suit under Order XXXVII, Rule 2, C.P.C. was maintainable and if the petitioner was in fact liable to make the payment require adjudication and verdict of the trial Court under these circumstances. This aspect of the matter alone was sufficient to allow the application submitted by the petitioner. When such important questions of fact and law emerge in view of the respective contentions of the parties, then the Court must exercise its jurisdiction under Order XXXVII, Rule 3, C.P.C. and should not hesitate in granting the leave to appear and defend the suit. The learned trial Court erred in dismissing the application by ignoring the above-mentioned important legal aspects of the matter and as such has committed material irregularity causing gross miscarriage of justice. The impugned order is not sustainable under the law. The petition is accordingly accepted and the impugned order is set aside. The leave to appear and defend the suit is accordingly granted. The copy of this order be sent to the learned trial Court for information and further orders. AG/K-14/L Leave granted.