BINYAMEEN KHALIL vs RIAZ AHMED RAHI

ORDER

1. ABDUS SATTAR ASGHAR, J.--- This Civil Revision under section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 11-12-1997 passed by learned Additional District Judge Sheikhupurawherebypetitioner'sapplicationunderOrderXXXVII, Rule 4 of the Code of Civil Procedure, 1908 for setting aside the judgment and decree dated 19-6-1997 has been dismissed.

2. 2.Brief facts leading to this Civil Revision are that respondent lodged a suit for recovery on 14-5- 1997 under Order XXXVII, Rule 1 of theCodeofCivilProcedure,1908onthebasisofpronotedated 29-11- 1995. Prescribed summons issued on 15-5-1997 was duly served upon the petitioner on 22-5-1997 for the next date of hearing i.e. 3-6-1997. Petitioner appearing before the learned trial Court through counsel on 3-6-1997 lodged an application for leave to appear and defend the suit. The learned trial Court dismissed the petitioner's said application and decreed the respondent's suit vide judgment and decree dated 19-6-1997. Being dissatisfied petitioner lodged an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 for setting aside the judgment and decree dated 19-6-1997. The said application was also dismissed by the learned trial Court vide impugned order dated 11-12-1997.

3. 3.It is argued by learned counsel for the petitioner that the impugned order is against law and facts; that the learned trial court has failed to exercise its jurisdiction vested under the law; that the learned trial Court has miserably failed to appreciate that notice issued to the petitioner was not accompanied with copy of the plaint which constitutes a special circumstance therefore his application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 was illegally dismissed; that the impugned order dated 11-12-1997 being against law and facts and untenable is liable to be set aside.

4. 4.Arguments heard. Record perused.

5. 5.Original prescribed summons issued on 15-5-1997 is available on the record which shows that it was not accompanied with copy of the plaint. Report of the Process Server dated 22-5-1997 available on the backside of the said summons also reveals that copy of the plaint was not disbursed upon the petitioner at the time of effecting service therefore petitioner's service on the said summons could not be termed as a 'proper service' and period of limitation under Article 159 of the Limitation Act, 1908 for application for leave to appear and defend the suit could not be computed from the said date i.e. 22-5-1997 and petitioner's application for leave to appear and defend the suit lodged on 3-6-1997 could not be rejected as barred by limitation. Reference be made to Muhammad Amin v. Ali Ahmad (1986 CLC 2236 (Lahore)). Needless to say that in the absence of disbursing any copy of the plaint at the time of service of summons petitioner was not expected to furnish his defence plea in application for leave to appear and defend the suit. In the circumstances ofthiscase,findingsofthelearnedtrialCourt in its judgment dated 19-6-1997 that the petitioner has neither denied taking of loan nor execution of the pro note in the contents of the application for leave to appear and defend the suit are unfounded and devoid of any force.

6. Learned trial Court therefore fell in error while declining petitioner's application to defend the suit and passing a decree in favour of the respondent on the basis of unrebutted claim set-forth in the plaint.

7. 6.ThesolerequirementforfilinganapplicationunderOrder XXXVII, Rule 4 of the Code of Civil Procedure, 1908 is to demonstrate a special circumstance so as to enable the court to set aside the decree. In this case petitioner has pointed out a special circumstance i.e. non-supplying the copy of the plaint at the time of effecting service of summons. Bare reading of the impugned order dated 11-12- 1997 reveals that the learned trial Court has not taken notice of the above quoted special circumstance involved in this case. It is important to note that no limitation has been provided for filing of an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 therefore the matter would be governed by Article 181 of the Limitation Act, 1908 which prescribes limitation of 3 years. The learned trial Court therefore erred in law while rejecting petitioner's application under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 as well as while passing the judgment and decree dated 19-6-1997 and thus failed to exercise its jurisdiction vested under the law. The impugned order dated 11-12-1997 suffering from jurisdictional error, factual and legal infirmity is unsustainable in the eye of law.

8. 7.For the above reasons this Civil Revision is allowed and the impugned order dated 11-12-1997 passed by learned trial Court is set aside. Consequently, the application/under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 is accepted and in result thereof judgment and decree dated 19-6-1997 is also set aside and the case is remanded to the learned trial Court to furnish an opportunity to the petitioner, after providing copy of the plaint, to file afresh an application for leave to defend within 10 days and then proceed with the matter in accordance with law.