Haq Nawaz Vs Additional District & Sessions Judge etc

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No. 46605 of 2022

Haq Nawaz Versus Additional District & Sessions Judge, Lahore and another

JUDGMENT

Date of hearing 18.03.2026.

Revision- Ch. Moazzam Tufail Gujjar, Petitioner by learned Advocate.

Respondent No. Mian Hamid Ullah Khan and Malik 2 by Khalid Akmal, learned Advocates.

Sultan Tanvir Ahmad J:- This civil revision, filed under section 115 of the Code of Civil Procedure-1908 (the “Code”), is directed against order dated 28.06.2022, whereby, the learned trial Court has dismissed the application for leave to appear and defend the suit, filed by the revision-petitioner, on account of failure to institute the same within ten (10) days from the date of receipt of summons.

2.Ch. Moazzam Tufail Gujjar, learned counsel for the revision-petitioner has submitted that the report of the process server is defective and even otherwise, a copy of the plaint was never served upon the revision-petitioner. He then reiterated ground-i of the civil revision, which reads that the revision-petitioner gained knowledge of the pendency of the suit on hearing date and he could not obtain a copy of the plaint as its additional copy was not appended by the respondent. Learned counsel for the revision-petitioner argued that on 21.03.2022 the learned trial Court adjourned the case granting an opportunity to file a leave application

and fixed the case for 19.04.2022, which essentially means that the leave application could have been filed until the fixed hearing date, therefore, the principle of actus curiae neminem gravabit applies. Added that delay, if any, is result of the misleading order of the learned Court, which must not cause prejudice to the case of the revision-petitioner.

3.Mian Hamid Ullah Khan, learned counsel for respondent No. 2, has submitted that service was effected upon the revision-petitioner on 08.03.2022 through TCS and through Court process server on 12.03.2022; that there was no irregularity in both the modes of service. He has further submitted that the revision-petitioner has not raised any objection as to defect in service in his leave application filed by him before the learned trial Court and the stance regarding irregularity in service is an afterthought, which is raised for the first time in this civil revision, to cause delay and the same is against the principles settled in “M. Ashraf Parwaz”1, “Khan Muhammad”2, “Muhammad Iqbal”3 and “United Bank Ltd”4 cases. Notwithstanding, the aforesaid arguments, learned counsel for respondent No. 2 has contended that failure to file an application under section 5 of the Limitation Act-1908 (the “Limitation Act”) for condonation of delay is fatal for this case.

4.I have heard the arguments and carefully gone through the record with the able assistance of learned counsel for the parties.

“M. Ashraf Parwaz Versus Prof. Asghar Ali Naaz (1995 SCMR 45).

“Khan Muhammad and Others Versus Mst. Zainab Bibi through Legal Heirs and Others” (2000 SCMR 1227).

“Muhammad Iqbal Versus Pahoo Mal (1995 MLD 1064 (Quetta)).

“United Bank Ltd Versus Messrs S. g. Rauf and Company and 2 Others” (PLD 1990 Karachi 312).

5.Order XXXVII Rule 2 of the Code requires the summons to be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. This is followed by the command that in any case in which the plaint and summons are in such forms, the defendant shall not appear or defend the suit unless he obtains leave from a Judge; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree. The period for filing leave application is given in Article 159 of the first schedule of the Limitation Act, which reads:-

Sr. Description of Suit Period of Time from No. Limitation which period begins to run 159 For leave to appear and [Ten days] When the defend a suit under summons is summary procedure served.

referred to in section 128(2)(f)[or under Order XXXVII] of the [Code of Civil Procedure, 1908 (V of 1908.]

6.Form No.4 in Appendix B requires a copy of plaint to be attached with the summons. This Form also stipulates the period of ten days for filing leave. Reading of the aforesaid provisions of law and Form, leaves no doubt that the summons issued for the suit filed under Order XXXVII of the Code must be in Form No.4 in Appendix B, which makes it necessary to attach the plaint. The intent of legislature in prescribing this Form and the requirement of summons of suit under Order XXXVII of the Code to be as per the Form, is to enable the defender to know the nature of the claim and the short period allowed by law to file the leave

for defending the claim, which starts from the service as per Article 159 of the Limitation Act.

7.In “National Bank of Pakistan”5, “Muhammad Siddique”6 and “Mian Muhammad Amjad Amin”7 cases, the above provisions are strictly construed while holding that Article 159 of the Limitation Act has direct nexus with Order XXXVII of the Code and they are interdependent. It will be beneficial to reproduce the following extract from “Mian Muhammad Amjad Amin” case (supra), which is also examined and upheld by the Honourable Supreme Court of Pakistan:-

“...As noted above, the summons were served on 20-3-2002 and therefore, the appellant could have filed an application seeking leave to appear and defend the suit within a period of 10 days from 20-3-2002 and thus, the last date for filing such an application comes to 30-3-2002, while the application was filed on 16-4-2002, therefore, the said application was patently barred by time. It has been held in Emirate Bank International v. Dost Muhammad Cotton Mills 1993 MLD 54, that if the defendants failed to file an application for leave to appear and defend the suit within the prescribed period of 10 days, then they are under a duty to explain each day's delay in filing their application after the expiry of the period of limitation.”

(( (Underlining is added) )

8.In the present case, on 07.03.2022 the learned trial Court ordered to issue summons as per Form No. 4 in Appendix B with specific direction to attach a copy of the plaint with same and to stipulate period of ten (10) days for filing leave application. The summons through process “National Bank of Pakistan and another Versus Emirates Bank International LTD, Karachi (1993 SCMR 931).

“Muhammad Siddique Versus Muhammad Ashraf (2000 YLR 2471).

“Mian Muhammad Amjad Amin Versus Rana Bashir Ahmad (2004 MLD 988).

server is also part of the record, which clearly indicates that leave is required to be filed in ten (10) days. Its filled part contains all the required particulars of the case followed by clear clause that a copy of the plaint is attached with the summons. The back of summons reveals that it is received by the revision-petitioner on 12.03.2022. The process server has also given his report thereupon. It is recorded by him that the revision-petitioner himself has received the summons. A short affidavit is also given beneath the report. The learned counsel for the revision-petitioner tried to cause confusion with another date (18.03.2022) at the back of summons but the same indicates the date of its deposit with the learned Court. Even otherwise, no benefit of the same can be given to the revision-petitioner as he filed the leave application on 31.03.2022. Summon was also sent through TCS service. The respondent-side has provided tracking result, which shows that it was delivered on 08.03.2022.

9.Having failed to satisfy the Court as to any defect in service, learned counsel for the revision-petitioner has attempted to take refuge of order dated 21.03.2022 passed by the learned trial Court. He stated that learned Court has permitted the revision-petitioner to file the leave application until 19.04.2022, therefore, principle of actus curiae neminem gravabit should be applied. Order dated 21.03.2022 of the learned trial Court reads as under:- “Power of attorney on behalf of the defendant has been submitted today by Mr. Ch. Liaqat Ali Anjum Adv. Now to come up for submission of application for leave to appear and defend the suit within time for 19.04.2022.

10.A perusal of above reflects that the learned Court has directed or permitted to file leave within time as envisaged by law and merely fixed the next hearing date as

19.04.2022. A person with ordinary prudence, by no stretch of imagination can confuse the same as extending limitation, which even otherwise, is a matter of statute. Needless to observe that a learned advocate of the revision-petitioner was also present on 21.03.2022. The principle referred, therefore, is of no help to the revision-petitioner.

11.It is further observed that grounds in civil revision as well as arguments of the learned counsel for the revision-petitioner are superficial and contradictory to each other that offend the principle of allegans contraria non est audiendus. Firstly, he stated that process server has not served revision-petitioner and that a wrong report is given to the learned trial Court, which resulted into delay in filing leave. Then he argued that he learnt about the suit on 21.03.2022 without explaining that if the summons were not served then what made him to appear in the learned Court. Upon failure to satisfy, he moved onto take shelter of the Court”s order by stating that a misleading impression was given to him. He argued that a copy of plaint could not be obtained from the learned trial Court because its additional copy was not available. Order-sheet reflects that the revision- petitioner had never requested the learned trial Court for a copy of the plaint and as a matter of fact he simply kept on seeking adjournments to argue the case. Similar conduct has already been discouraged in “Mian Muhammad Amjad Amin”8, whereby, the Honourable Supreme Court of Pakistan while upholding a judgment of this Court, has observed as under:-

“A perusal of the documents further demonstrates that the petitioner has taken up “Mian Muhammad Amjad Amin Versus Rana Bashir Ahmad (2004 SCMR 836). Also see “Mashooq Ali Rajpar Versus Raja Abdul Hameed and another (2021

MLD 850 / 2021 CLD 783).

wavering stances to cover up his belated approach before the learned Additional District Judge. There he put up his case that he could not file the application for leave to defend in time as he was unable to move from his bed from 8-3-2002 till 9-4-2002. Since he could not substantiate the same, as such it did not find favour with learned Additional District Judge. Before the High Court, the petitioner did not urge the ground of illness as noted by the learned Single Judge who further held that the petitioner did not bring any material on record to substantiate his indisposition. He took another plea that he was not provided with the copy of the plaint at the time of service of summons on 20-3-2002 which was given to him on 10-4-2002. This plea too was never agitated earlier. The medical certificate appended for the first time also does not support his case. It is totally vague in nature and does not establish his case as taken up by him at the time of making the application to appear and defend. In the said application, as already stated, he mentioned his inability in moving from bed due to illness from 8-3-2002 till 9-4-2002. However, in the certificate he had been advised rest from 9-3-2002 till 22-4-2002. All the above-stated resume demonstrates that the petitioner has failed to explain his belated approach and no illegality has been committed by the learned Single Judge of the Lahore High Court in dismissing his R.F.A.”

(Emphasis supplied)

12.It is also significant to note that the revision- petitioner has even failed to file any application under section 5 of the Limitation Act, which is applicable to such applications under Order XXXVII Rule 3 of the Code. There is an inordinate delay of about nineteen (19) days. The revision-petitioner should have filed an application for condonation of delay to satisfy the learned trial Court that he had sufficient cause for not filing leave application within ten (10) days9. Submission of application under section 5 of “Ahmad Shah and another Versus Israr-ud-Din (2016 CLC 1100 (Peshawar)).  “Abbas Ali Versus Asif Abbas and 03 Others” (2012 CLC 1762).

the Act is a condition precedent for vesting jurisdiction in the Court to condone the delay on sufficient cause being shown10.

13.For what has been discussed above, the civil revision, being devoid of merits, stands dismissed. No order as to costs.

(Sultan Tanvir Ahmad) Judge Approved for reporting Announced on 06.04.2026.

Judge J.A. Hashmi/-

“Dr. Sher Dil Batra Versus Abdul Rehman Wahla (PLD 1983 LHR 491).