MUMTAZ HUSSAIN SIDDIQUI vs MUHAMMAD TAHIR First Sched — 2025 PLD 53 KARACHI-HIGH-COURT-SINDH

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MUMTAZ HUSSAIN SIDDIQUI VS MUHAMMAD TAHIR First Sched., art. 159---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 2 & 3---Suit for recovery---Summary trial---application for leave to defend, filing of---Limitation---Specified time of 10 days, commencement of---Scope---Service upon the defendant---Trial Court, responsibility of---On failure of the defendant to file leave to defend application, the Trial Court passed ex-parte judgment and decree; later, Trial Court dismissed the defendant's application under O. IX, R. 13, C.P.C. read with S. 12(2), C.P.C., seeking to set aside the original judgment and decree---Validity---article 159 of the Limitation act, 1908 mandates a period of ten (10) days for submitting a leave to defend application in a suit governed by the summary procedure outlined in O. XXXVII of Civil Procedure Code, 1908---Said period commences from the date of service of the summons---Order XXXVII, R. 2, C.P.C., explicitly outlines the procedure for summons, requiring it to be served in Form No.4 of appendix B, which coincides with the 10-day period stipulated in art. 159 of Limitation act, 1908; significance of both the contents and language of Form No.4 necessitates that the party served with the summons has 10 days from the date of service to submit its Leave to Defend application---In the present case, according to the relevant Diary (Order) Sheet, the service upon the appellant/defendant was held good based on the report of bailiff---However, said report revealed that appellant was served on such date that the ninth (9th) day (from date of service by bailiff) was next date of hearing i.e. before the full 10-day period as provided by law would have elapsed---When a statute grants a defendant a statutory right to seek leave of the Court within a specified time frame (in the present case 10 days from the receipt of the summons), it establishes a clear procedural safeguard---Trial Court is expected to respect and uphold this statutory provision---By waiting for the expiration of the stipulated period before taking any action, the court ensures that the defendant has a reasonable opportunity to exercise his legal rights and present his defence---In the absence of such a waiting period, a defendant's ability to avail himself of the statutory right is compromised---Striking off the defence of a defendant before the expiration of the specified time frame undermines the fundamental principles of fairness and due process inherent in legal proceedings---In the present case, the Trial Court unfairly and prematurely deprived the appellant of his statutory entitlement to seek leave within the prescribed period, by curtailing it by just one day, thereby impeding his ability to mount an adequate defence---Under Rr. 2 & 3 of O. XXXVII, C.P.C., proceedings are summary; failure of the defendant to apply for defence within 10 days of service leads to a deemed admission of allegations in plaint, which may in turn result in a decree---Court must ensure the defendant is served and comprehends the proceedings; hence, the Legislature mandated specific forms for the plaint and summons---Therefore, it is imperative for a court to exercise caution and patience in such matters, refraining from striking down the defence of a defendant ahead of time---By allowing the statutory period to run its course, a Court ensures that the defendant's rights are fully respected and that the legal process proceeds in a manner consistent with the principles of justice and equity---High/appellate Court set-aside the ex-parte impugned judgment and decree and the dismissal order of the appellant's application (seeking setting aside of the original impugned judgment and decree) with the direction that the appellant shall file his leave to defend application in the suit within ten (10) days from today---appeal, filed by defendant, was allowed accordingly.

MUMTAZ HUSSAIN SIDDIQUI vs MUHAMMAD TAHIR First Sched — 2025 PLD 53 KARACHI-HIGH-COURT-SINDH

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