2012 PLP 1060 (CLD)

MUHAMMAD AMEER BHATTI, J.

Through this regular appeal the appellant has challenged the decree dated 25-2-2008 passed by the learned trial Court, whereby the suit of the respondent for recovery of an amount of Rs.4,75,000 on the basis of pro note dated 18-3-2006 was decreed.

2. The brief facts of the case are that the respondent filed a suit for recovery of an amount of Rs.4,75,000 on the basis of pro note dated 18-3-2006 before the learned District Judge. The appellant on 10-1-2008 filed an application for grant of permission to defend the suit along with an application under section 5 of the Limitation Act seeking condonation of delay for filing of the application for leave to defend beyond prescribed period of limitation which was duly replied by the respondent. However, learned trial Court vide judgment impugned dated 25-2-2008 decreed the suit while dismissing the application for leave to defend being barred by time.

3. Learned counsel for the appellant contends that the service upon the appellant has not effected in accordance with law and there is no evidence on the record that the plaint was attached with the copy of the notice which was alleged to be delivered to the appellant. Further contends that on 19-12-2007 when the appellant counsel had appeared, the learned Judge had adjourned the case for filing the power of attorney and written statement and for further proceedings for 10-1-2008. On the basis of this order, the learned counsel for the appellant contends that the order does not indicate whether the appellant was warned by the Court on the day when he appeared in the Court whether 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 appellant as well as the Court, the delay would have been condoned in such like cases.

4. On the other hand learned counsel for the respondent contends that the appellant at the time of filing of the application for condonation of delay has not taken this stand, hence he cannot be allowed to raise this objection at this stage and no plausible explanation has been given in the application for condonation of delay. Further contends that the notice has been issued in accordance with law which was received by the appellant but even then, he did not file the application within the period provided under the law and indicated in the notice, hence at this stage he has no right to get the benefit of any lapse on the part of the Court.

5. We have heard the learned counsel for the parties and perused the record.

6. It is observed that the interim orders of the learned trial Court show that neither the summons has been sent to the defendant/appellant according to the Order IV Appendix 'B' nor the plaint has been attached with the notice as required under Form 4 Appendix-B. It is appropriate to reproduce the Form 4 Appendix 'B': FORM IV 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 the principal amount due, the interest thereon and also cost upon the defaulting party, thus forewarning him of penal consequences in case of non-compliance. 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 appellant, 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 summons/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 order of the Court does not represent that any warning for seeking the leave to defend or handing over the copy of plaint to the defendant has been issued. Moreover, it has been noticed that learned trial Court directed the appellant/defendant to file the written statement, which amounts to creating confusion and this omission on the part of the learned trial Court is the main cause of filing of application for leave to appear and defend the suit in the Court, out of time. Had the learned Court warned the appellant/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 appellant 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 10-1-2010 cannot be held to be time-barred due to the negligence on the part of the appellant/defendant alone.

7. It is noticed that the report of process sever reflects that only Perth of summons has been handed over, meaning thereby neither the plaint was attached with the summons nor it was delivered to the appellant/defendant. So the requirement of law has not been fulfilled as such the penal clause does not attract, hence the declaration of the application of the appellant to be time-barred was not within the jurisdiction of the learned trial Court, therefore, the decree is nullity in the eye of law as the learned trial Court has failed to exercise the jurisdiction vested in it.

8. For what has been discussed above, we have come to the this convincing conclusion that the basic provisions of law have been violated by the learned trial Court and the defendant/appellant alone cannot be made to undergo penal consequences 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(sic.) In consequence of exhaustive discussion ibid, this appeal is allowed. Consequently, the judgment impugned dated 25-2-2008 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, Okara on 15-3-2012 who shall take on the matter either himself or entrust it to any Additional District Judge for its decision afresh. No order as to costs. S.A.K./M-84/L Appeal accepted.