MUHAMMAD ALI KHALID vs MUHAMMAD TALHA O — 2024 CLC 1184 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD ALI KHALID VS MUHAMMAD TALHA O. XXXVII, Rr.1, 2, 3, 4 & O.V, Rr. 1, 5---Suit for recovery on the basis of negotiable instrument---Issuance of summons to the defendant---Form No. 4, Appendix-B of Civil Procedure Code, 1908, non-compliance of---Effect---Application for leave to appear and defend the suit filed by the appellant /defendant was dismissed being barred by time, and thereupon the suit filed by the respondent / plaintiff was decreed---Plea of the appellant/ defendant was that he was never served and as and when he came to know about the pendency of the suit, an application for leave to appear and defend the suit was filed---Validity---Order XXXVII of the Civil Procedure Code, 1908 ('the O. XXXVII, C.P.C.'), is a special dispensation---Under O. XXXVII, C.P.C., unlike a regular civil suit, procedure has been provided to file and proceed with the suit filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act, 1881---In a suit filed under O.XXXVII, C.P.C, which is summary in nature, under R.3 of the said Order, a defendant, who has been served, within stipulated time, has to seek leave to appear and defend the suit and once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in C.P.C.---Unlike the regular civil suit where summons for service of the defendant is issued under O.V, Rr.1 & 5, C.P.C., the format of which is given in Form No. 2 Appendix-B, C.P.C., in a suit filed under O.XXXVII, C.P.C., R.2 of C.P.C. a defendant has to be issued summons in the specific format as given in Form No. 4, Appendix-B of C.P.C.---Cumulative reading of the summonses, Forms 2 & 4, Appendix-B of C.P.C., would show that unlike a regular civil suit, where defendant is called to appear in the court, either himself or through a representative in a suit filed under O. XXXVII, C.P.C., defendant can only contest the suit subject to grant of leave to appear and defend the suit, that too on an application filed by him within 10 days of his service of summons (as provided under R. 3 of O. XXXVII, C.P.C., issued in the format given in Form 4, Appendix-B of C.P.C. (see R.2 of O. XXXVII, C.P.C.)---Text of both said summons would show that unlike summons issued in Form 2, Appendix-B of C.P.C., the defendant is cautioned about the time line in which he has to file such an application and it is a sine qua non that the summons is to be accompanied by a copy of plaint---Where the summons is not issued to a defendant in Form No. 4, Appendix-B, C.P.C., it will be presumed that he has not been served and his limitation for filing the application for leave to appear and defend the suit would start from the date when he appeared before the court and filed such application---In the present case, on filing of the suit by the respondent/plaintiff against the appellant / defendant ,an order was passed that summons in the prescribed form be issued to him (appellant), yet record showed that the initial two (02) summonses issued to him for next two dates of hearings (spanning two weeks or so) were not in the prescribed manner / Form 4, Appendix-B, C.P.C. as the said summonses were ordinary summonses which were issued in Form No. 2, Appendix-B, C.P.C.---Though after said two dates of hearing, for the first (and the last) time, summons in the correct format (in Form No. 4), was issued, however the Process Server reported at the back of the summons that he had received the summons (for service) one day prior to (next/fixed) date of hearing thus the time for service might be extended---Despite the fact that Process Server never served the appellant through summons issued in accordance with Form 4, Appendix-B, C.P.C., the Trial Court passed an order that since service of the appellant had been effected (which was factually incorrect) and none had entered appearance on his behalf therefore he might be served through substituted service---Since the appellant was never served through the prescribed summons as contemplated in O.XXXVII, R.2 & Form 4, Appendix-B, C.P.C., thus publication in the newspaper could not be issued---Hence, it could not be said that he was ever served, therefore, as and when he appeared before the Trial Court with his application for leave to appear and defend the suit, his limitation for filing such an application would start from the day he entered appearance---Trial Court erred in law in dismissing the application for leave to appear and defend the suit declaring the same barred by time and decreeing the suit---High Court set-aside the impugned order and decree, and resultantly, the suit filed by the respondent would be deemed to be pending before the Trial Court, which would decide the application for leave to appear and defend the suit filed by the appellant on merits and thereupon proceed with the suit---Appeal, filed by the defendant, was allowed accordingly.

MUHAMMAD ALI KHALID vs MUHAMMAD TALHA O — 2024 CLC 1184 LAHORE-HIGH-COURT-LAHORE

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