ABDUL KARIM vs NAZIR AHMAD

' The brief facts giving rise to this appeal are that in a suit under Order XXXVII, C.P.C. For recovery of a sum of Rs,12,500 filed by the respondent-plaintiff, the appellant-defendant was served on 24-5- 1984 and on 12-6-1984 he submitted an application for permission to appear and defend the suit alleging that he remained ill from 1-6-1984 to 10-6-1984. The learned, District Judge, Bahawalpur, through the judgment and decree dated 25-6-1984, dismissed the said application and consequently decreed the suit of the plaintiff with costs.

' The learned counsel for the appellant referred the case of Muhammad Yousaf v. Allah Yar PLD 1987 Lah. 101 and submitted that on rejection of the application of the appellant-defendant for leave to appear and defend, the suit could not be straightway decreed without recording evidence. He submitted that as the appellant had fallen ill, the delay of one day in filing the said application should have been condoned.

3. There are ex parte proceedings against the respondent. Without going into the above contentions of the learned counsel for the appellant, I am inclined to accept this appeal on a more technical and legal ground. No doubt, the appellant-defendant was served personally on 24-5- 1984 for the date 19-6-1984 and under Article 159 of the Limitation Act, the period prescribed for applying for leave to appear and defend the suit under Order XXXVII of the Code of Civil Procedure, 1908, is ten days from the service of summons, but the service is said to have been effected only if it effectively bring the claim to the knowledge of the defendant. Needless to mention that.In a suit under Order XXXVII, C.P.C. Prescribed summons with the copy of the plaint should be issued, otherwise, defendant will not be able to know the nature of the suit and claim involved in it and may not move the machinery expeditiously for obtaining leave to appear and defend the suit. In fact, if the summons are not accompanied with the plaint there cannot be a proper service on the defendant and, therefore; the question of computing the period of limitation under Article 159 does not arise. The case of Ali Akbar v. Gulzar Ali Shah PLD 1984 Karachi 252 may be referred in this regard.

4. A perusal of the record shows that the appellant-defendant was served in person on 24-5-1984 for the date 19-6-1984, but only copy of the summons was delivered to him. Copy of the plaint was not attached with the summons and was, therefore, not delivered to the defendant. It would not amount to proper service on the defendant and the application for leave to appear and defend the suit was not barred by time as observed by the trial Judge. The case of Muhammad Amin v. Ali Ahmad 1986 CLC 2356 is referred.

5. As a result of the above, the appeal is accepted and the impugned judgment and decree set aside. The case is remanded to the learned District Judge, Bahawalpur for trial afresh after summoning the plaintiff. There shall be no order as to costs.