TAJ ALI KHAN vs Haji MUHAMMAD ALI

The respondent instituted a suit under Order XXXVII, rule 2 of the C.P.C. For recovery of an amount to the tune of Rs.4,40,000 on the basis of a promissory note dated 4-3-2000 in the Court of learned District Judge, D.I. Khan. When the appellant failed to move an application for leave to defend within 10 days, the learned District Judge decreed the suit bf the respondent, vide his judgment, dated 9-4-2001. As soon as the appellant came to know about the decree so passed against him, he moved an application for setting it aside on the ground mentioned therein. The learned District Judge after getting reply of the respondent, fixed it for evidence, vide his order, dated 21-6-2001 but afterwards on the application of the learned counsel for the respondent, he again fixed the case for arguments and after hearing the parties, dismissed it vide his order dated 16-9-2002. Hence this appeal.

2. The learned counsel appearing on behalf of the appellant contended that once the learned District Judge decided to record evidence on the application of the appellant, it was not proper to change his mind and review his order particularly when it was not questioned in a higher forum.

The learned counsel for the appellant next contended that the appellant never knew the nature of the proceedings as no plaint was accompanied by the notice served on him, therefore, such stern and stringent action could not have been taken against him.

3. The learned counsel appearing on behalf of the respondent by placing reliance on the case of Naeem Iqbal v. Mst. Zarina 1996 SCM R 1530 contended that the proceedings under Order XXXVII, rules 2 and 3 of the C.P.C. Are summary in nature and where the defendant does not obtain leave to appear and defend within the prescribed time, the allegations in the plains shall be deemed to have been admitted and the plaintiff shall be entitled to a decree. The learned counsel to give added vigour to his arguments relied on the cases of Messrs Simnwa Polyproplene (Pvt.) Ltd. And others v. Messrs National Bank of Pakistan 2002 SCM R 476, Manzoor Ahmad v. Muhammad Iqbal 1994 SCM R 560, Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 M LD 1835, M. Ashraf Parwaz v. Prof. Asghar Ali Naz 1995 SCM R 45 and the case of Syed Sarwat Hussain Zaidi v. Abdul Hameed 1999 M LD 2182 (Lah.).

4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.

5. There is no doubt that the proceedings under the above mentioned provisions of law are summary in nature and where the defendant does not submit at, application for leave to appear and defend within the prescribed time, the allegations in the plaint shall be deemed to have been admitted and the suit so instituted shall be, decreed. But at the same time, the Court seized of the matter is not relieved of its duty to see and ensure before decreeing the suit, that the person proceeded against was not only served but was also made to understand the nature of the proceedings. It was pre--eminently in this context that the Legislature in its wisdom prescribed a form for plaint and a form for the summons to be served on the defendant of such proceedings.

6. There is no material so far on the record to show that the appellant either knew the nature of the proceedings or was served in accordance with the requirements of law. In the absence of any such material no cannons of law or justice let aside those of natural justice, will justify such a stringent action against the defendant or warrant the disposal of the case in the manner resorted to by the learned District Judge. His order dated 21-6-2001 to decide the application after recording evidence thereon was perfectly in accordance with safe administration of justice, which should not have been reviewed or rescinded without any sane, sound and sensible reason. Stringent action should be taken against those, who default wilfully, but not against those, who are not at fault or whose default, if any, was because of the failure of Process Serving Agency to serve the summons in accordance with the letter and spirit of law, because no person can be punished or penalized for the acts of commissions and omissions of others.

7. It is also not understandable as to what could possibly be gained by the appellant by not appearing within the stipulated time, even if, it is assumed for the sake of arguments that he was served aria apprised about the nature of the proceedings, when he of his own accord appeared in the Court 15 days later. The learned District Judge was required to attend to all these aspects of the case before passing such alb harsh order.

8. Where it is not clear from the record that the appellant was served in accordance with the requirements of law and that he knew the nature of the proceedings lodged against him and the mechanism to defend which is always invariably disclosed in its summons, the judgments cited by the learned for the respondent, I am afraid will have no relevance to the instant case.

9. For the reasons discussed above, this appeal is allowed with a cost of Rs.5,000, the impugned judgment is set aside and the case is remanded to the learned District Judge for deciding the application of the appellant for setting aside the ex parte decree after recording evidence within a period of three months. The record of the case be sent to the learned District Judge. As this appeal has been allowed, the Civil Miscellaneous being infructuous are dismissed. The cost shall be paid by the appellant to the respondent before the trial Court.