Babar Jahangir and another V. Nadir Ali,
Bench: Rozi Khan Barach
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This case involved a dispute over unpaid debt. Nadir Ali filed a summary suit against Babar Jahangir and another person under a special fast-track procedure (Order XXXVII of the Civil Procedure Code) used for recovery based on cheques. Jahangir had allegedly borrowed money and given cheques that later bounced due to insufficient funds, with the second appellant acting as surety.
Under this summary procedure, a defendant must seek the court's permission ("leave to defend") within ten days of being served, otherwise the suit is automatically decreed against them. The trial court ruled that the appellants' application for leave to defend was filed too late and accordingly decreed the suit in the respondent's favor without a full trial.
On appeal, the Balochistan High Court examined the record and found that one appellant had only received a copy of the plaint (the document containing the claim) on 16 March 2018, and the leave to defend application was filed on 26 March 2018 - exactly ten days later, counting correctly. The court held that a defendant cannot be expected to apply for leave without first having a copy of the plaint, and that the ten-day period should be counted excluding the date of service itself. Therefore, the application was actually filed within the legal deadline.
As a result, the High Court set aside the trial court's judgment and sent the case back for fresh consideration of the leave to defend application, on merits, within two months. This case highlights how strict procedural deadlines must be fairly calculated to ensure defendants get a genuine chance to defend themselves.
یہ مقدمہ ایک غیر ادا شدہ قرض کے تنازعے سے متعلق تھا۔ نادر علی نے بابر جہانگیر اور ایک دوسرے شخص کے خلاف ضابطہ دیوانی (سول پروسیجر کوڈ) کے آرڈر XXXVII کے تحت ایک سمری سوٹ دائر کیا، جو چیکوں کی بنیاد پر رقم کی وصولی کے لیے استعمال ہونے والا ایک خصوصی تیز رفتار طریقہ کار ہے۔ الزام تھا کہ جہانگیر نے رقم ادھار لی تھی اور اس کے عوض چیک دیے تھے جو بعد میں ناکافی رقم کی بنا پر بینک سے واپس ہو گئے، جبکہ دوسرا اپیل کنندہ ضامن کے طور پر شامل تھا۔
اس سمری طریقہ کار کے تحت، مدعا علیہ کو تعمیل (نوٹس کی ترسیل) کے دس دن کے اندر عدالت سے "دفاع کی اجازت" (لیو ٹو ڈیفنڈ) حاصل کرنی ہوتی ہے، ورنہ مقدمہ خود بخود اس کے خلاف ڈگری ہو جاتا ہے۔ ٹرائل کورٹ نے فیصلہ دیا کہ اپیل کنندگان کی دفاع کی اجازت کے لیے درخواست مقررہ مدت کے بعد دائر کی گئی تھی، چنانچہ مکمل ٹرائل کے بغیر مقدمہ مدعی کے حق می
Generated from the full judgment text below — not a substitute for reading the actual opinion.
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.