SHAHZAD AKHTAR Versus FARUKH JAMEEL

CH. MUHAMMAD IQBAL, J.--- Through this civil revision, the petitioner has challenged the legality of order dated 23.09.2020 passed by the learned Additional District Judge, Tandlianwala who dismissed the application for leave to appear and defend the suit filed by the petitioner being barred by limitation.

2. Brief facts of the case are that the respondent/plaintiff filed suit for recovery of Rs.8,95,303/- on the basis of cheque under Order XXXVII, C.P.C. in which the petitioner appeared filed application for leave to appear and defend the suit on 20.12.2018. The said application was dismissed by the learned Additional District Judge, Tandlianwala vide order dated 23.09.2020. Hence, this civil revision.

3. I have heard the learned counsel for the parties at full length and gone through the record with their able assistance.

4. Under Article 159 of the Limitation, 1908 the prescribed period for filing the application for leave to appear and defend the suit is ten days from the date of service of summons or the date of knowledge. The suit was filed on 27.09.2018 and the learned trial court on 13.10.2018 issued notice/summon for the service of the petitioner/defendant through registered post AD and adjourned the case for 02.11.2018. Again on 02.11.2018 when the notice/summons was not received, served or un-served then the learned trial court again issued notice/summon through registered post AD for 16.11.2018. As per orders sheet (appended at Page 16 of this petition) the process server reported that the petitioner refused to receive the notice upon which the notice was served by way of affixation of summons. On this report the learned trial court passed order for substitute service of the petitioner through publication in the newspaper daily "Asas" for 30.11.2018. On 30.11.2018, the Presiding Officer was on leave and the learned Duty Judge adjourned the case for 20.12.2018. On 20.12.2018, the petitioner filed an application for leave to appear and defend the suit as well as power of attorney but his application for leave to appear and defend the suit was dismissed through impugned order dated 23.09.2020 being barred by limitation which is in violation of the Order V, Rule 17, C.P.C. Under Order V, Rule 17, C.P.C., it was the duty of the Process Server to write the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Under Rule 19, C.P.C. when summon was returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath but in this -case this procedure has not been adopted. Further, notice/summon was issued under Order V, rule 10, C.P.C., the summons shall be made by delivering a copy thereof signed by the Judge and stamped with the seal of the Court. Furthermore, Order V, Rule 20 provided a procedure for substituted mode of service which is not followed by the learned Addl. District Judge and after knowledge, the petitioner/defendant appeared and filed application for leave to appear and defend the suit which was illegally dismissed. Neither any summons nor notice brought on record by the respondent for effecting the personal service of the petitioner/defendant. The petitioner did not append the record, as such, for just decision of the case, the record was requisitioned which shows that the publication was made in violation of under Order XXXVII, Rule 2(1) read with Order V, Rule 12, C.P.C. This publication was neither in-consonance with the law nor was validly issued, as such, the impugned order is not sustainable. Reliance in this regard is placed on a case cited as Ghulam Muhammad v. Abdul Ghaffar (2007 CLD 1633). In this case Reader of the Court issued summon. Petitioner clearly stated in his application that after knowledge he filed application. As such, order impugned is illegal which is against the parameters prescribed under Order V, C.P.C. as well as against the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases titled as Ahmed Khan v. Haji Muhammad Qassim and others (2002 SCMR 664) and Nouroz Khan v. Haji Qadoor (2005 SCMR 1877).

5. In view of above, this civil revision is allowed. Order dated 23.09.2020 passed by the learned Addl. District Judge, Tandlianwala is hereby set aside and application for leave to appear and defend the suit filed by the petitioner is well within time and shall deem pending before the learned trial court who shall decide the same in accordance with law.

SA/S-22/L Revision Petition allowed.