BAGH ALI vs HABIB J3ANK LTD. AND 2 OTHERS

ORDER

' This appeal has arisen out of a suit filed by respondent No, 1, Habib Bank Ltd., Bhadian Branch, District Kasur, against the appellant, Bagh Ali, and respondents Nos. 2 and 3, namely, Ch. Muhammad Ishaque and Muhammad Mansha, for recovery of Rs, 9,047 under Order XXXVII, rule 2 of the Code of Civil Procedure, in the Court of District Judge, Kasur. Initially, the defendants in the suit evaded service but eventually entered appearance before the learned District Judge and sought adjournment. On a date that followed the next date, an application was submitted by the appellant for permission to defend the suit. The said application was filed after ten days of the first appearance of the appellant before the learned trial Court. Relying on Article 159 of the First Schedule to the Limitation Act, 1908, it was, therefore, held by the learned District Judge that the application was time-barred. The appellant had not moved application, under section 5 of the Limitation Act, for condonation o delay. Affidavit which was required to be submitted under sub- rule (1) of rule 3 of Order XXXVII of the Code of Civil Procedure was also not appended to the application. The learned District Judge, therefore, too the averments made in the plaint as having been admitted and decreed the suit jointly and severely against the defendants. This appeal is directed against the judgment and decree passed by the learned District Judge.

2. It was contended by learned counsel for the appellant that the summons issued to the appellant was not in proper form and, therefore, the impugned judgment and decree could not be passed by the learned District Judge. In this connection, he invited my attention to Annexure `D' which is a photostat copy of the summons issued to the appellant for 18th December, 1984. It is a summons for settlement of issues which is required to be issued under rules 1 and 5 of Order V of the Code of Civil Procedure. It is in Form No, 2 which has been set out in Appendix 'B' to the said. Code. Appendix 'B' relates to processes. Argument of learned counsel for the appellant was that instead of the above summons, the learned District Judge should have issued summons in Form No, 4 of the said Appendix. Form No, 4 is in respect of summons to be issued in summary suits filed, on the basis of negotiable instruments, under Order XXXVII, rule 2 of the said Code.

3. Report made by the process-server on the summons (Copy Annexure "D') issued to the appellant was to the effect that he had left the place given in his address and, therefore, service could not be effected on him. Since the said summons was not served on the appellant, he cannot make capital out of its wrong form. There was no occasion for his having been mislead by the form of the above summons because it did not reach his hands. He has not placed on record any other summons. It was not pleaded by his learned counsel that any other summons was served on him. According to the learned District Judge, the appellant had evaded service for some time and then entered appearance before him. Under Article 159 of the First Schedule to the Limitation Act, application for permission to defend the suit should have been filed by the appellant within ten days of the service of the summons on him. As the same was not served on him, he could make the said application within ten days of his first appearance before the learned trial Court. Admittedly, however, the application was submitted by him after ten days of his first oppearance. It was, therefore, time- barred. It is not disputed that the C appellant had not made petition, under section 5 of the Limitation Act, for condonation of delay in the submission of the application for leave to defend the suit. This application was also not accompanied by affidavit which was required to be filed under sub-rule (n of rule 3 of Order XXXVII, of the Code of Civil Procedure. Learned District Judge was, therefore, justified in not allowing leave to the appellant to defend the suit. It has been laid down in sub-rule (2) of rule 2 of Order XXXVII of the slid Code that if no leave is obtained, averments in the plaint shall be deemed to be admitted and the plaintiff shall he entitled to a decree. Since leave to defend the suit was not granted to the appellant, learned District Judge had rightly passed decree in favour of respondent No, 1 (plaintiff) by taking allegations in the plaint as having been admitted.

4. There is no merit in this appeal. It is dismissed in limine.

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