-Suit for recovery---Cheque allegedly issued by the petitioner for the return of loan, was dishonoured---FIR had been launched prior to initiation of suit---Petitioner was arrested-

 2022 C L C 6
[Lahore]
AMAR JEET SINGH
Versus
SANT SINGH

(a) Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2 & Appendix B, Form 4---Limitation Act (IX of 1908), Article 159---Constitution of Pakistan, Art. 10A---Suit for recovery---Cheque allegedly issued by the petitioner for the return of loan, was dishonoured---FIR had been launched prior to initiation of suit---Petitioner was arrested---Superintendent jail was directed to produce the petitioner in the Court---On 19.12.2020, attendance of the petitioner was marked and he was informed that he could file his application for leave to defend the suit within ten days---Petitioner's right of filing the application for leave to defend was closed by District Judge---Order-sheet nowhere showed that the petitioner had been served summons in the prescribed Form 4 in Appendix "B", therefore, the mandatory requirement of law had never been complied with---Additional District Judge informed the petitioner that he may file his application for leave to appear and defend the suit, but no warning was given to the petitioner regarding consequences of his default---Such was mandatory to ensure that on the date when the summons was served on the defendant, he should be made fully aware of the plaintiff's claim and nature of suit by serving a copy of the plaint along with annexures---Question of computing limitation under Art. 159 of the Limitation Act, 1908, did not arise---Court's order did not reflect that petitioner was even allowed any opportunity to contact any of his relatives or any lawyer---Principle of equality of arms had been manifestly violated and the impugned order was void---Rivision petition was allowed accordingly.

(b) Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2 & Appendix B, Form 4---Constitution of Pakistan, Arts. 10A, 28 & 251---Bilingual summons (in English and Urdu), necessity of---Scope---Purpose of a summon prescribed under O.XXXVII, R.2 of C.P.C. was to convey to a defendant a summary of the claim against him, inform him of his entitlement to apply for leave to appear and defend the suit, warn him of the urgency in moving such an application (i.e. within the limitation period of ten days) and warn him of the consequences of his default---Mandatory requirement of service of summons in prescribed form would only be in consonance with the object, letter and spirit of the said R.2 as also in conformity with Arts.10A, 28 & 251 of the Constitution that the summons under the said rule was prescribed in bilingual form i.e. English and Urdu.

(c) Constitution of Pakistan---

----Art.10A---Right to fair trial---Scope---Right conferred by Art.10A applies to civil, criminal and administrative proceedings and benefit thereof extends to any person involved in the above proceedings in Pakistan and not just citizens---Requirement of fairness imposed under the said Article applies to civil and criminal litigation taken as a whole including access to justice and is not confined to fair trial once litigation is underway.

(d) Constitution of Pakistan---

----Art.10A---Fairness---Scope---Equality of arms---Principle---Fairness of the procedural safeguards, stricto sensu, the equality of arms is one of the hallmarks of such right---Principle of equality of arms, which is a judicial construction adopted by the European Court of Human Rights, means giving each party a reasonable possibility to present its cause in such conditions as would not put one party in disadvantage to its opponent---Fair balance between the opportunities afforded to the parties involved in litigation is a must.

(e) Constitution of Pakistan---

----Art. 10A---Fair trial---Integral part of every law---Scope---Principles of fair trial, as guaranteed by Article 10A of the Constitution, are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person.

(f) Constitution of Pakistan---

----Art.10A---Fair trial and due process---Right to defend---Scope---Opportunity to defend necessitates that a party should be provided access to counsel and an opportunity to answer the case against him.