2001 PLP 1759 (MLD)

This is an appeal against the judgment and decree, dated 1-3-1999 whereby, Asif Hussain plaintiff, in summary proceedings under Order 37, C.P.C., was granted a decree for the recovery of a sum of rupees six lacs against Zahoor Ahmed, the appellant-defendant who was refused leave to defend the suit, mainly on the ground that his petition for leave to defend was filed beyond the period of ten days. His application under section 5 of the Limitation Act was not considered.

2. The perusal of record would show that the relevant notice under Order 37, Rule 2, C.P.C. was issued on 11-1-1999 for 16-2-199:x. It is alleged that the defendant was served on 5-2-1999 and. hence was bound to file petition for leave to defend on or before 15-2-1999, whereas, he has filed such petition on 1-3-1999, beyond the prescribed period of ten days. The notice on the original file bears the endorsement of process-server Muhammad Asif on the back thereof, which indicates that though the defendant/appellant was not served in person yet the copy of the notice was h delivered at his residence on 5-2-1999. The endorsement speaks of the copy alone and not the copy of plaint along therewith, whereas, the notice issued in Form No.4 in Appendix B to the C.P.C., would require that a copy of plaint shall be annexed to the notice and be, therefore, delivered to the defendant. Provenly no copy of the plaint is delivered to the defendant and hence the service of notice is in violation of the law laid down in Order 37, Rule 2, C.P.C. The defendant cannot be punished in the circumstances and no limitation, particularly with reference to the alleged date of service would run against him (PLD 1984 Karachi 252-A) and (PLD 1998 Lahore 161).

3. The law enacted under Order 37, C.P.C. calls for summary proceedings and hence is a stringent law against the defendant. The harsher a law against the defendant or an accused, the more stringent should be the provisions of law construed against the plaintiff or the prosecution. In the present circumstances, the learned District Judge should either not have I considered the petition to be time-barred or even if so, he should have condoned the delay (which it is not) under section 5 of the Limitation Act, which is clearly applicable under Order 37, Rule 3(3), C.P.C. Even if, we consider 16-2-1999, as the date of notice because the defendant appeared in Court on that date yet a limitation would not be counted because the service is in violation of Order 37, Rule 2 read with Appendix B to the C.P.C. Still the defendant was supposed to file petition for leave to defend on or before C 26-2-1999 but the Court itself on 22-2-1999 fixed the date for petition for leave to defend as 1-3-1999. The Court should also have kept the limitation in consideration and should have fixed the date on or before 26-2 1999: The defendant is damaged by the act of Court as well, and the Courts, in the circumstances should also apprise the defendants of the period of limitation because mostly the people are ignorant and not accompanied by a counsel, as it happened in the present case.

4. Coming to the merits of the petition for leave to defend, the defendant had taken certain most important pleas therein. The first among them was, that the promissory note was fictitious and without consideration as the actual dispute between the parties was related to the mortgage of a Bungalow by the defendant in favour of the plaintiff. The copies annexed with the petition indicate that the plaintiff had also instituted a suit regarding the mortgage of the said Bungalow. Alongwith the petition in question, the defendant had filed the affidavit of one Muhammad Aftab, a marginal witness to the receipt who gave a story altogether, contrary to the execution of pronote. These were the affidavits which, in the circumstances of the case, required the recording of a thorough and detailed evidence and hence the defendant must have been allowed the leave to defend.

5. Accordingly, in the instant suit based on promissory note and filed under Order 37 of the C.P.C., the appeal is accepted, the impugned judgment and decree, dated 1-3-1999 is set aside, the petition for leave to defend is accepted and the defendant is directed to file written statement before the trial Court/District Judge. Parties to appear before the learned District Judge on 30-6-2001. H.B.T./326/P Appeal accepted.