2012 C L C 1141

[Lahore]

Before Muhammad Ameer Bhatti and Muhammad Khalid Mehmood Khan, JJ

MUHAMMAD YASIN----Appellant

versus

Sheikh MUHAMMAD PERVAIZ----Respondent

Regular First Appeal No.126 of 2008, heard on 29th February, 2012.

(a) Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of pro note---Application
for leave to defend suit---Suit decreed after dismissal of such application---Defendant's plea
was that he was not served in terms of provisions of R. 2 of O.XXXVII, C.P.C.; and that his
counsel appeared on 19-12-2007, but court did not warn him that same was the last day for
filing leave application, rather adjourned proceedings to 10-1-2008 for filing power of
attorney and written statement---Validity---Record showed that neither defendant was
served with summons in Form IV, Appendix-B nor was copy of plaint attached thereto----
Underlying purpose of issuance of summons in Form IV accompanying plaint and reflecting
principal amount due, interest thereon and cost upon defaulting party would be to intimate
defendant of his rights in law in suit under special provisions of law---Delay or default in
filing of leave application within prescribed period could not be attributed to a defendant,
unless he was informed in required statutory mode and manner---Trial Court on 19-12-2007
had not handed over copy of plaint to defendant for filing of leave application, rather had
adjourned proceeding for 10-1-2008 for filing written statement---Filing of leave application
on 10-1-2008 could not be said to be time-barred due to negligence on his part, rather he had
been victim of such act of Trial Court---Requirements of law had not been fulfilled while
serving summons upon defendant---Defendant alone could not be made to undergo penal
consequences in face of contributory negligence on part of Trial Court---Impugned decree
was nullity in the eye of law---Trial Court had not exercised its jurisdiction in accordance with
law---High Court set aside impugned decree and directed Trial Court to decide leave application on
merits in accordance with law.

(b) Act of Court---

----Act or omission of court---No person should suffer for an act or omission of court---Act
of court should not prejudice anyone.

Mian Muhammad Talah Adil v. Mian Muhammad Lutfi 2005 SCMR 720 rel.

Mian Shah Abbas for Appellant.

Date of hearing: 29th February, 2012.

JUDGMENT

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 stan d,
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 by 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,

(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 summon/torn 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 special ly
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 shou ld 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-A. In consequence of exhaustive discussion ibid, this appeal is allowed. Consequently,

S.A.K./M-84/L Case remanded.