Hidayatullah vs Muhammad Mushtaque OXXXVII, R — 2024 MLD 681 KARACHI-HIGH-COURT-SINDH

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Hidayatullah VS Muhammad Mushtaque OXXXVII, R.3---Constitution of Pakistan, Art. 10-A---Suit for the recovery of loan on the basis of pro note---Leave to appear and defend suit---Summons not issued to the defendant---Application filed by the defendant for leave to appear and defend the suit filed against him on the basis of pro note was dismissed being time barred---Record showed that prescribed application under O. XXXVII, R. 3 C.P.C. was not moved therefore, decree was to be passed, which was accordingly passed---Validity---In the present case the summons was issued in the ordinary course and neither it contained the wording that copy of the plaint was annexed nor there was any caution that leave was to be obtained from Court within ten days---In the present appeal one of the grounds was that present appellant had not executed and issued the subject promissory note and that being a prima facie triable issue, a chance should have been given by the trial Court to file the leave to defend application---In view of said undisputed facts, summons issued for a suit filed under summary Chapter of C.P.C. had to be specific, because in case of failure there was a requirement, that a decree was to be followed---Secondly, the nature of summary jurisdiction was that, unless a plausible case was made out by defendants in the leave to defend application, usually the suit was decreed without a full dress trial---Undisputed facts of the present case clearly showed that summons as required under O. XXXVII of C.P.C. was not issued to present appellant/defendant in the suit---Secondly defendant did appear on the date mentioned in the summons and even on that date he was not asked by the Court about receiving copy of the entire plaint and annexure---Hence such gross procedural lapse was also violative of Art. 10-A of the Constitution, as it deprived the present appellant from a fair opportunity of hearing and trial---Consequently, appeal was allowed.

Hidayatullah vs Muhammad Mushtaque OXXXVII, R — 2024 MLD 681 KARACHI-HIGH-COURT-SINDH

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