PLJ 2014 Lahore 679
[Multan Bench Multan
[
versus
C.R. No. 82 of 2014, heard on 26.3.2014.
----S. 5 & Art. 159--Civil Procedure Code, (V of 1908), O. V, R. 24 & XXXVII, Rr. 1 & 2--Suit for recovery on basis of cheque--Petitioner was confined in judicial lock up at time of filing of suit--Summons were ordered to be served through superintendent jail--Service was not possible through ordinary mode--Petition for leave to appeal and defend the suit was dismissed on ground that same was filed beyond prescribed period of limitation--Challenge to--Period of limitation for filing petition was to start from date when he for first time put appearance before trial Court--Despite issuance of summons time and again, petitioner could not be served--Order for production from jail for service of summons and supply of copy of plaint of suit--Validity--At time of filing of suit, petitioner was confined in jail and he was not served with any summon properly--Holding of petition time barred was unjustifiable--As petitioner was behind bars at time of filing of suit it was not possible for him to get copy of plaint personally--Petitioner did not hire services of a counsel when he, for first time, executed power of attorney in favour of his counsel to defend suit filed by respondent, any counsel who was engaged in other matters could be asked by petitioner to obtain copy of plaint--When law requires an act to be done in particular manner, it has to be done in that manner alone and such dictate of law could not be termed as technicality--Petitioner was not properly served prior to a date and Addl. Distt--Judge had committed material illegality while dismissing petition on point of limitation--Petition was accepted. [Pp. 682, 683 & 684] B, C, F & G
PLD 2013 SC 255, rel.
----O. V, R. 24--Order for production of petitioner from jail for service of summons and supply of copy of plaint of suit--Despite issuance of summons time and again petitioner could not be served--Validity--It is well entrenched by now that Courts should do substantial justice instead of knocking out a person due to non-fulfillment of certain formalities which could be due to unavoidable circumstances. [P. 682] A
----Issuance of summons on subsequent dates including publication of citation in newspaper is beyond comprehension of man of prudent mind--It is of common knowledge that when a defendant is properly served with summon in a suit there remains no need to repeat the same. [P. 683] D
----S. 5--Condonation of delay in filing leave to appear and defend suit--Validity--Question of filing an application for condonation of delay arises only when any application, appeal or revision is barred by law of limitation but in matter in hand when Petition was filed within ten days from service of petitioner, question of filing of application under Section 5 of Limitation Act, 1908 is irrelevant. [P. 684] E
Date of hearing: 26.03.2014.
Judgment
By means of this Revision Petition, the petitioner has assailed order dated 16.01.2014 passed by the learned Addl. District Judge, Kabirwala District Khanewal.
2. Unnecessary details apart, the facts as spelt out in this petition are that respondent instituted suit against the petitioner under Order XXXVII Rules 1 & 2, CPC, 1908 for recovery of Rs.38,80,000/- on the basis of cheque. As the petitioner was in judicial lock-up in connection with some criminal case, the summons were ordered to be served on him through the Superintendent New Central Jail, Multan
3. The arguments, advanced by learned counsel for the petitioner, can be summed up in the words that as the petitioner was confined in judicial lockup at the time of filing of suit by the respondent, the learned Addl. District Judge should have ordered for his production before the Court for service etc; that as the petitioner was not served properly, the period of limitation for filing the Petition was to start from the date when he, for the first time, put appearance before the trial Court through his counsel; that as special procedure has been laid for trial of the suits filed under Order XXXVII, CPC any omission on the part of the plaintiff or the Court towards service of the defendant is not condonable and that the impugned order has been passed while ignoring the peculiar circumstances of the case. In addition to his oral submissions, leaned counsel has also relied on the cases reported asGhulam Rasool vs. Abdullah (1991 SCMR 1964) and Muhammad Nadeem Amin vs. Ch. Farasat Ullah (PLD 2006 Lahore
4. On the other hand, learned counsel appearing on behalf of the respondent, while defending order impugned in this petition, submits that filing of the suit by the respondent was very much in the knowledge of the petitioner inasmuch as not only in the bail petition filed before the lower Court but also before this Court, he categorically took the plea that respondent had already instituted a suit for recovery on the basis of cheque which was subject matter of case F.I.R No. 84 of 2013, thus he cannot claim that he was not properly served; that a perusal of order dated 12.08.2006 shows that the petitioner was served through an official of the New Central Jail, Multan thus he was bound to file the Petition within the stipulated period; that as no application for condonation of delay was filed by the petitioner so the Petition filed by petitioner was rightly dismissed by learned Addl. District JudgeKabirwala; that when the petitioner was in knowledge of filing of the suit by the respondent, he or his counsel was under obligation to get copy of the plaint and submit the Petition. Lastly submits that in the Petition, the petitioner has not dislodged the claim of the respondent in clear cut words and it has nowhere been mentioned therein that he was not served with any summon/notice prior to 21.09.2013. In support of his oral submissions, learned counsel has referred cases reported as Messrs Qureshi Salt & Spice Industries, Khushab vs. Muslim Commercial Bank Limited, Karachi (1999 SCMR 2353) and Abbas Ali and another vs. Asif Abbas and 3 others (2012 CLC 1762).
4. I have heard learned counsel for the parties at length and have also scanned the documents appended with this petition in addition to going through the case-law cited at the bar.
5. The period of limitation for filing of the Petition in the suit under Order XXXVII Rules 1 and 2, CPC 1908, is governed under Article 159 of the Limitation Act, 1908. According to the said Article, the period of ten days shall start from the service of the summons. Now the question which boils down for determination by this Court is as to when the petitioner was properly served. A perusal of the order sheet of the learned trial Court shows that the suit came up for preliminary hearing on 17.07.2013 when summons were issued to the petitioner for 21.08.2013 on which date though it was reported that the petitioner was served through a clerk of New Central Jail, Multan but the learned Addl. District Judge, Kabirwala finding the service unsatisfactory ordered for issuance of fresh summons for 26.08.2013 when due to the fact that summons issued to the petitioner did not return served or unserved, summons were again issued for 10.09.2013. On the said date, the learned Addl. District Judge, having found that service of the petitioner was not possible through ordinary mode, ordered for service of the petitioner through substituted mode by way of publication in Daily "Ausaf" for 21.09.2013. On the date fixed, Ch. Abdul Jabbar Ayaz, Advocate tendered his power of attorney on behalf of the petitioner and submitted the Petition on 24.09.2013 as is evident from order dated 27.09.2013. A cursory glimpse of the above factual narration shows that till 21.09.2013, the petitioner was not properly served inasmuch as service of summons issued to the petitioner upon a clerk of New Central Jail, Multan
5. A perusal of the order sheet of the trial Court shows that despite issuance of summons time and again the petitioner could not be served. In said situation the safer course for the learned Additional District Judge was to order for production of the petitioner from jail for service of the summons and supply of copy of the plaint of the suit while exercising the powers conferred upon him under Order V Rule 24, CPC. It is well entrenched by now that the Courts should do substantial justice instead of knocking out a person due to non-fulfillment of certain formalities which could be due to unavoidable circumstances. In the matter under discussion, at the time of filing of the suit, the petitioner was confined in jail and he was not served with any summon properly. In this scenario holding of the Petition time-barred is unjustifiable.
6. It is worth mentioning here that summon in a suit filed under Order XXXVII Rules 1 and 2, CPC is issued in the form available at Sr. No. 4 of Appendix-B of the Code of Civil Procedure, 1908. It has clearly been mentioned in the said form that the said summons shall be accompanied by the copy of the plaint. Further the Court shall note in the said summon that the defendant can appear before the Court after obtaining the leave from the Court within ten days from the service of the same. In the instant matter, there is nothing on record that the petitioner was properly served prior to 21.09.2013 and alongwith the summons copy of the plaint was also provided to him.
7. Now adverting to the respondent's plea that after having knowledge about the filing of the suit the petitioner was bound to get copy of the plaint by himself or through his pleader, I am of the view that as the petitioner was behind the bars at the time of filing of the suit it was not possible for him to get the copy of the plaint personally. Secondly, as the petitioner did not hire services of a counsel prior to 16.09.2013 when he, for the first time, executed power of attorney in favour of Ch. Abdul Jabbar Ayaz, Advocate, to defend the suit filed by the respondent, how it can be presumed that any counsel who was engaged in other matters could be asked by the petitioner to obtain copy of plaint.
8. Considering from another angle, if the service affected on the petitioner for 12.08.2013 was sufficient, the issuance of summons by the learned Addl. District Judge on subsequent dates including publication of citation in newspaper is beyond the comprehension of a man of prudent mind. It is of common knowledge that when a defendant is properly served with summon in a suit there remains no need to repeat the same.
9. Insofar as the plea of the respondent that in absence of any application for condonation of delay in filing the Petition, the same was rightly dismissed by the learned Addl. District Judge is concerned, suffice it to note that the question of filing an application for condonation of delay arises only when any application, appeal or revision is barred by the law of limitation but in the matter in hand when the Petition was filed within ten days from the service of the petitioner, the question of filing of application under Section 5 of the Limitation Act, 1908 is irrelevant.
10. Now coming to the case-law relied upon by learned counsel for the respondent, I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Abbas Ali and others (supra) the service of summons on the defendant was admitted but the Petition was filed beyond the prescribed period of limitation but in the case in hand when there is nothing on record to suggest that petitioner was properly served prior to 21.09.2013, the said judgment is of no help to the respondent. Further, in the case of Messrs Qureshi Salt & Spice Industries, Khushab (supra) it was held that the time of limitation in a suit filed under Order XXXVII shall start from the date when the publication was issued in the newspaper but in the instant case, there is nothing on record to show that as to when the publication of newspaper was issued. Moreover,the said case also stands distinguished on the ground that at the relevant time, the petitioner was confined in jail.
11. The assertion of learned counsel for the respondent that it has nowhere been mentioned in the Petition that the petitioner was not served with summon in jail, the Petition was rightly held time barred by the trial Court, has no worth inasmuch as instead of taking any premium of any omission on the part of the petitioner in his Petition, the respondent was bound to establish that despite proper service the petitioner failed to file Petition within the stipulated period. Despite repeated queries learned counsel for the respondent failed to refer to any document tending to manifest that the petitioner was properly served with summons while confined in jail.
12. At the cost of repetition it is observed that penal provisions against a defendant in the suit filed under Order XXXVII Rules 1 & 2, CPC can only be invoked when the notices were not only issued in the form referred supra but the same was properly served on him. When the law requires an act to be done in a particular manner, it has to be done in that manner alone and such dictate of law could not be termed as a technicality. Reliance in this regard is placed on Muhammad Anwar & others v. Mst. Ilyas Begum & others (PLD 2013 S.C.255).
13. As a necessary corollary to the discussion made in the foregoing paragraphs, I have no hesitation in my mind that the petitioner was not properly served prior to a date for 21.9.2013 and the learned Additional District Judge committed material illegality while dismissing the Petition on the point of limitation. Consequently, instant revision petition is accepted and impugned order is set aside. As a result the Petition filed by the petitioner shall be deemed to be pending and the learned trial Court shall decide the same within two months from the receipt of certified copy of this order. There shall be no order as to costs. The office is directed to immediately transmit copy of this judgment to the trial Court for compliance.
(R.A.) Petition accepted
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