2024 CLC 1184
RFA No. 6825 of 2020
Muhammad Ali Khalid v. Muhammad Talha
Order XXXVII CPC is a special dispensation. Under this Order and unlike in a regular civil suit, procedure has been provided to file and proceed with the suit filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act 1881. In a suit filed under this Order, which is summary in nature, under Rule 3 of the said Order, a defendant who has been served, within stipulated time has to seek leave to appear and defend the suit and once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in CPC.
Unlike the regular civil suit where summons for service of the defendant are issued under Order V Rules 1 & 5 CPC, the format of which is given in Form No. II Appendix-B CPC in a suit filed under Order XXXVII CPC, under Rule 2 of the said Order, a defendant has to be issued summons in the specific format as given in Form No. 4 Appendix-B CPC.
A cumulative reading of the above summonses would show that unlike a regular civil suit, where defendant is called to appear in the court, either himself or through a representative, in a suit filed under Order XXXVII CPC defendant can only contest the suit subject to grant of leave to appear and defend the suit, that too on an application filed by him within 10 days of his service of summons (see Order XXXVII Rule 3 CPC), issued in the format given in Form 4, Appendix-B CPC (see Order XXXVII Rule 2 CPC). The text of the said summons would show that unlike summons issued in Form 2, Appendix-B CPC, the defendant is cautioned about the time line in which he has to file such an application and it is a sine qua non that the summons is to be accompanied by a copy of plaint.
Be that as it may, since the appellant was never served through the prescribed summons as contemplated in Order XXXVII Rule 2 and Form 4, Appendix-B CPC thus the publication in the newspaper could not be issued, hence, this cannot be said that he was ever served, therefore, as and when he appeared before the trial court with his application for leave to appear and defend the suit, his limitation for filing such an application would start from the day he enters appearance therefore the trial court erred in law in dismissing the application for leave to appear and defend the suit being barred by time and decreed the suit.
0 Comments