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Regular First Appeal No. 132 of 1985, decided on 12th January

---0. XXXVII, R. 2--Limitation Act (IX of 1908), Art. 159--Summary suit--Service of summons--Application for leave to defend suit-Limitation--Summons issued to defendant unaccompanied with copy of plaint in summary suit, held, would not be proper service on defendant and application for leave to defend suit would not be barred by time if filed beyond statutory period in circumstances. ---[Limitation].

Ali Akhtar v. Gulzar Ali Shah P L D 1984 Kar. 252 and Rehman Khan v. Muhammad Rafique 1984 C L C 371 ref.

---0. XXXVII, R. 2--Summary suit--Illness of defendant--Effect-Defendant supporting plea of illness by filing affidavit--Penal provisions of 0. XXXVII, R. 2 of Civil Pocedure Code, 1908, held, could not be applied against defendant to shut out defence for passing decree on basis of unrebutted claim set forth in plaint in circumstances.

Ch. Abdul Ghani for Appellant.

Malik Noor Muhammad for Respondent.

Date of hearing: 12th January, 1986.

This appeal arises out of a civil suit instituted in summary jurisdiction under Order XXXVII of the Code of Civil Procedure by Ali Ahmad for recovery of Rs.10,000 against Muhammad Amin, appellant, in the Court of District Judge, Sahiwal. Claim is based on a pronote and receipt, dated 8-5-1984. Plaint was presented on 5-3-1985. Summons in the prescribed form was issued by the learned trial Court for appearance of the defendant. Defendant, as it appears from the trial Court file, was served on 12-3-1985. He appeared in Court and applied for leave to defend the suit. As the leave petition was out of time, defendant sought condonation of delay application under section 5 of the Limitation Act now made applicable. Affidavit was also put in. Leave petition was opposed by the plaintiff. Learned Additional District Judge after considering the merits of the leave petition in the light of opposition offered by the plaintiff refused to grant permission and decreed the suit in favour of the plaintiff for the amount claimed in the plaint.

Defendant in order to defend the suit against him was obliged to seek leave within a period of 10 days from the date when summons was served upon him. Admittedly, leave petition was filed after expiry of 10 days from service of summons. Defendant pleaded illness. Plea was not accepted by the trial Court and in the result as decreed against the defendant on the basis of claim set forth in the plaint under Order XXXVII, Rule 2 (2) of the Code of Civil Procedure.

It was submitted by Ch. Abdul Ghani, Advocate that copy of the plaint did not accompany the summons. He relied on the return. Muhammad Amin, when served, noted that he received the summons without copy of the application. Presumably by this he meant copy of the plaint. norm of summons in summer suit is given in Appendix 8 For facility of reference, pro froma of summons is given below:

"SUMMON IN SUMMARY SUIT ON NEGOTIABLE

INSTRUMENT (0. XXXVII, R. 2) ""

To

(Name, description and place of residence)'

WHEREAS ...has instituted 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, frorr 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.

Given under my hand and the seal of the Court this day of 19 Judge"

There is no available material on file and none has been pointed out that copy of the plaint accompanied the prescribed summons or that it was handed over to the defendant alongwith the summons. Necessary requirements of the summons which must be accompanied by a plaint, therefore, were neither fulfilled nor complied with. Short question which arises in this civil appeal, therefore, is about the commencement of limitation period. Article 159 of the Limitation Act, provides that application for leave to appear and defend the suit under Order XXXVII should be filed within ten days from the date when summons is served. Order XXXVII provides a summary procedure. Defendant is not entitled to appear and defend the suit brought against him unless he succeeds to obtain requisite leave from the Court within ten days of the service of summons. When such onerous limitations have been placed on the right of the defendant to lead defence, it appears to be just and proper to hold that before the requisite period is made to run against him, he should be fully aware of the claim made against him in the suit and that the necessary requirement of Order XXXVII should be complied with in letter and spirit when the summons in the prescribed form alongwith the copy of the plaint is served upon the defendant, he is fully acquianted with claim against him and then is bound to apply within the requisite period of ten days for leave to appear and defend the suit. In the present case as the summons was not accompanied with the plaint, there could not be a proper service on the appellant and, therefore, the question of computing the period of limitation under Article 159 did not arise. In the summons issued to the defendant, reference to the copy of plaint, is conspicuously absent. Leave application, therefore. could not be rejected as barred by time. In support of the view taken by me, reference can with advantage be made to Ali Akbar v. Gulzar Ali Shah P L D 1984 Kar. 252 and Rehmat Khan v. Muhammad Rafique 1984 C L C 371 a Bench decision of this Court. This appeal, therefore, must be allowed on this ground alone. This apart, defendant in his leave application had pleaded that he could not enter appearance in time because of his illness. Plea of illness was supported by his affidavit. Penal provisions of Order XXXVII, rule 2 of the Code of Civil Procedure, therefore, could not have been applied against the defendant to shut out his defence for passing a decree on the basis of unrebutted claim set forth in the plaint.

For the foregoing reasons, impugned order refusing leave to appear and defend the suit is found unsustainable. I, therefore, allow the appeal, set aside the impugned order, dated 2-7-1985 of learned Additional District Judge, Pakpattan Sharif and remand the case to him with direction to re-hear and decide the leave application afresh on merits. There will be no order as to costs. Parties are directed to appear before the Court below on 19-1-1986. Record be also sent down forthwith.

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