2022 Y L R 570
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
BABAR JAHANGIR and another ---Appellants
Versus
NADIR ALI ---Respondent
Regular First Appeal No. 52 of 2018, decided on 31st February, 2020.
Civil Procedure Code (V of 1908) ---
----O. XXXVII, Rr. 2, 3 ---Suit for recovery --- Application to appear and defend the suit ---
Limitation ---Application for leave to defend the suit was dismissed by the Trial Court
declaring the same as barred by time and subsequently decreed the suit of the respondent ---
Held, that appellant appeared before the Trial Court and copy of plaint was supplied to him --
-Application for leave to defend was filed within ten days of the time when he was provided
copies ---Service in the summ ary suit was to be effected through summons available in the
Appendix 'B' of Form -4 of the Civil Procedure Code, 1908, wherein it was mentioned that
"within 10 days from the service" the defendant had to obtain leave to appear and defend the
suit---Record revealed that the service, in the present case, was effected on 16 -03-2018,
therefore, within ten days meant excluding 16 -03-2018, the date of obtaining of leave to
appear and defend, was 26- 03-2018---Application for leave to appear and defend the suit,
therefore, had been filed within the prescribed period of limitation--- High Court set aside
impugned decree and judgment, and remanded the matter ---Appeal was disposed of
accordingly.
Muhammad Zakria Khilji for Appellants.
Muhammad Ismail Baloch for Respon dent.
Date of hearing: 23rd December, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this appeal the appellants, who are
defendants in the suit for recovery filed under Order XXXVII of C.P.C. on the basis of cheques, has challenged the order dated 02.05.2018, whereby an application for leave to defend the suit has been dismissed on the ground that same has been filed after the prescribed period of limitation, and the suit filed by the respondent was decreed.
2. Briefly stated the facts of the case are tha t the respondent/plaintiff filed a summary
suit against the appellants stating therein that the appellants/ defendants borrowed a sum of
Rs.24,17,000/ - from him in the year 2014. The appellant/defendant No.1 gives certain
cheques of different amounts to the respondent/plaintiff payable on different dates with regard to the Bank Al -Falah. Apart from the promissory note of Rs.11,57,000/ - was also
given by appellant No.1 in respect of cheques, while appellant No.2 stood surety on behalf of
appellant No.1. It w as alleged in the plaint that when the cheques were presented to the
concerned bank the same was dishonored due to insufficient funds.
3. Civil Suit was filed on 20.02.2018 which was duly registered and the notices were
ordered to be issued. The notices re mained un- served for a few days, and they were repeated.
On 16.03.2018 appellant No.2 was present in person and on the same date copy of the plaint
was handed over to the appellant No.2. On 21.03.2018 notice was served upon the appellant No.1 and counsel f or the appellant No.1 Mr. Muhammad Zakriya Khilji, Advocate was
appeared and filed power. On 26.03.2018 the appellant filed an application for leave to defend. Thereafter. objections were filed on the application for leave to defend. After hearing, the sai d application was dismissed being barred by time, whereafter the impugned
judgment and decree was passed on 02.05.2018. Hence this appeal.
4. We have heard the learned counsel for the parties and have gone through the available
record with their assistance.
5. From the case diaries, it is apparent that the appellant No.2 appeared before the
learned trial court on 16.03.2018 and copy of the plaint has been supplied to him. The leave to defend application was filed on 26.03.2018, i.e. within ten days of the t ime when he was
provided copies. Since it is not possible for the party to file leave to defend application
without possessing a copy of the plaint filed by the plaintiff.
6. The service of the summons in the summary suit is effected through summons
available in the Appendix 'B' of Form IV of the C.P.C. It is mentioned that "within 10 days from the service" the defendant has to obtain leave to appear and defend the suit. As the
service was effected on 16.03.2018, copy of the same is available on record, therefore, within ten days means excluding 16.03.2018 at lest the date of obtaining of leave to appear and defend was 26.03.2018, therefore, the application for leave to appear a nd defend the suit has
been filed within the prescribed period of limitation.
In view of what has been discussed above, the judgment and decree dated 02.05.2018
passed in a summary Suit No.02 of 2018 are hereby set aside and the matter is remanded back to the trial court to decide afresh from the stage of hearing of leave to defend the
application. The trial court will decide the leave to defend the application of the appellants strictly in accordance with law within a period of two months from the receipt of this order.
MQ/49/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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