Yasin Khan Vs Atar Khan

I

JUDGMENT SHEET

PESHAWAR HGIH COURT BANNU BENCH

(Judicial Department)

RFA No.38-B of2025

Yasin Khan

Versus

Atar Khan

JUDGMENT

Date of hearing: 07.09.2026.

For petitioner: Habibur Rehman Advocale (throush video link)

For respondent: Mir Zaman Marwal advocale.

SABIT ULLAH KHAN. J.- This Regular First Appeal, filed under Section 96 of the Code of Civil Procedure, 1908, challenges the order and decree dated 28.10.2025 passed by the leamed Additional Dishict Judge-I, Lakki Marwat, in civil suit No.o5/cS of 2025, titled "Atar Khan v. Yasin Khan". By that order, the hial court dismissed the appellant/defendant's application for leave to appear and defend as time-barred and without merit, and decreed the suit, filed under Order XXXVII, Rules I artd 2, C.P.C., for recovery of Rs.21,00,000/- with costs.

2.I have heard leamed counsel for the parties at length and have gone through the record with their assistance.

3.The respondenVplaintiff filed the suit under Order XXXVII, Rules I and 2, C.P.C. for recovery of Rs.21,00,000/-. His case was that this amount had been advanced to the appellant/defendant as a loan against a pronote dated 10.08.2024, repayable by 20.12.2024, which the appellant/defendant failed to honour. The hial court first

directed issuance of summons for 28.02.2025, but the record shows that this summons was never served or refurned. Summons for affixation was then ordered, and this too was neither served nor retumed. A second summons under Order )oO(\4I was issued for 29.04.2025, which also remained unserved, and a further summons was thereafter issued for 15.05.2025, said to have been served through alfixation on 10.05.2025. The appellanVdefendant appeared before the trial court on 15.05.2025. The matter was adjourned to 06.06.2025 so that the plaintiff could file a list of witnesses, and on account of the presiding oIficer's leave and the Eid-ul-Adha holidays, the date was changed first to I 1.06.2025 and then to 17.06.2025. On this last date, the appellant/defendant filed his application for leave to appear and defend, pleading among other things that no cash consideration had actually passed and that the maffer had already been settled through a Jirga. The respondenUplaintiff, in his written reply, admitted that a controversy existed between the parties and had been referred to arbitration, though he maintained that the suit amount was still due. By the impugned order dated 28.10.2025, the lrial court held that the application had been filed beyond the ten- days period allowed under Article 159 of the Limitation Act, 1908, counting from 15.05.2025 as the date of service, and was therefore time-barred. It also held that the application was not supported by the affrdavit required under Order XXXVII, Rule 3(l), C.P.C., and that no triable issue arose in any case, since the appellanVdefendant had not denied executing the pronote. On these grounds, the application was dismissed and the suit decreed for Rs.2l ,00,000/- with costs.

4.Leamed counsel for the appellant has challenged this order mainly on the ground that none of the summonses issued in this case, whether for 28.02.2025, for affixation, for 29.04.2025, or the one said to have been afftxed on

10.05.2025 for 15.05.2025, was accompanied by a copy of the plaint. This, he submits, is contrary to the mandatory requirement of Order XXXVI, C.P.C. that summons in a sunmary suit must be issued in Form 4 of Appendix-B, C.P.C. together with a copy of the plaint. His argument is that, since service was never validly effected in the manner prescribed by law, the limitation period for filing the application for leave to appeax and defend could not be counted from the defective service relied upon by the hial court, and that the application filed on 17.06.2025 could not, on this basis, be treated as time-barred.

5.The question this appeal tums on is a narrow one: whether the ten-days period prescribed under Article 159 of the Limitation Act, 1908 for filing an application for leave to appear and defend a summary suit began to run from the date of service relied upon by the trial court, given that it is admitted that no copy of the plaint accompanied the summons served or affixed upon the appellant/defendant.

6.The record shows that none of the summonses issued in this case, whether for 28.02.2025, for affixation, for 29.04.2025, or finally for 15.05.2025 (said to have been affixed on 10.05.2025), was ever accompanied by a copy of the plaint, as Order XXXVII, C.P.C. mandatorily requires, nor was any ofthem personally served on the appellanVdefendant.

The impugned order itselfrecords that the appellanVdefendant was "summoned and served" on 15.05.2025, but it makes no finding, and the trial court record contains no material, showing that a copy of the plaint accompanied that service.

7.Leamed counsel for the respondent was specifically confronted with the position that no material was available on the trial court record to show that a copy of the plaint had ever been duly given to the appellant. He was asked in clear terms

whether any such proof existed, and he was unable to point to anything in the record that could establish that a copy ofthe plaint had, at any stage, been served upon or handed over to the appellanVdefendant along with the summons. Rather than persist with the contrary position taken in the impugned order, he fairly and candidly conceded that no copy of the plaint had in fact been provided to the appellanVdefendant. This concession, made across the bar by learned counsel for the respondent himself, puts the matter beyond dispute and leaves no room for treating the appellanVdefendant as having been validly served.

8.The appellanfs case, that service was never carried out in the form and manner the law requires, is therefore made out and stands unrebutted.

9.The legal position on this point is settled. In Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nagina Cotton Industries Ginning, Pressing and Oil Mills and others (1993 CLC 2217), it was held that the provisions of Order XXXVII, C.P.C. are penal in nature, since they limit a defendant's right to appear and defend unless leave is obtained within the prescribed time, and must therefore be construed strictly. It was held that summons in such a suit must not only { be issued in Form 4 of Appendix-B, C.P.C., but must also be accompanied by a copy ofthe plaint served on the defendant, whether personally, through an agent, or in the manner provided under Order V, Rule 17, C.P.C. Service effected without the accompanying copy of the plaint, even by publication, cannot be treated as valid service for the purpose of starting the limitation period under Article 159 of the Limitation Act. It was further held that where a defendant has not been served with summons in the prescribed form together with a copy of the plaint, the ten-day period for filing an application for leave to appear and defend does not begin

to run before the date the application is actually filed, and that such an application need not be supported by an application for condonation of delay under Section 5 of the Limitation Act.

10.Applying this settled position to the facts of the present case, since a copy of the plaint was, on the admitted record, never attached to or served with the summons issued to or affixed upon the appellanUdefendant, the ten-days period under Article 159 of the Limitation Act never started running against him. The trial court's finding that the application for leave to appear and defend, filed on 17.06.2025, was time- barred cannot stand, since it rests on a date of service that did not meet the mandatory requirements of Order XXXVII, C.P.C. The further objection that the application was not supported by an affidavit also cannot be used to defeat it in these circumstances. A defendant who was never properly served with a copy of the plaint cannot be held to a procedural requirement whose whole basis, proper service, was never fulfilled, particularly where the substance of his defence, going to the true nature of the transaction, is otherwise apparent from the application and the record.

Il. That substance is present here. Both the ( appellanVdefendant's application and the respondenV plaintiffs own written reply show that there was a dispute between the parties over land and property, which was referred to and dealt with through a Jirga, and the respondenVplaintiff has himself admitted the existence of that dispute and the arbitration held in relation to it. Whether the pronote reflects an acfual advance of cash, or was executed in connection with matters settled or still pending before the Jirga, is a question that cannot be decided at this preliminary stage. It requires evidence to be recorded and a full hial to be held. This is precisely the kind of case in which leave to

defend, subject to suitable conditions to protect the plaintiffs claim, should be granted, rather than one calling for the summary remedy of an unconditional decree.

12.For these reasons, this Regular First Appeal is allowed. The impugned order and decree dated 28.10.2025, passed by the leamed Additional District Judge-I, Lakki Marwat, in Civil Suit No.05/CS of 2025, are set aside. The appellant/defendant's application for leave to appear and defend the suit is accepted, subject to his furnishing a surety bond, to the satisfaction of the trial court, for the claimed amount of Rs.21,00,000/- (Rupees twenty-one lac only), within a period to be fixed by the trial court. Once this is done, the appellant/defendant shall file his written statement, after which the trial court shall frame issues and proceed with the trial of the suit according to law. Given that the matter pertains to the year 2025 and has already remained pending for a considerable time, the leamed trial court is directed to conclude the trial and decide the suit positively within a period ofthree months from the date the appellant/defendant furnishes the surety bond as directed above, without granting unnecessary adjournments to either party.

Announced.

Dt:07.09.2026 ffi- -sd-

IUDGE

JUDGE

4,t

(5. B)

Hon'ble Mr. Justice Sabit Ulloh Khan

It