ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

First Appeal No.150 of 2017

[Masood Ahmed v. Muhammad Ashraf Gondal]

Date	Order with signature of Judge

Hearing of Case.

1. For hearing of CMA No.2623 of 2016.

2. For Regular hearing.

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

13.08.2026

M/s. Khaleeq Ahmed and Muhaymin Aizaz, Advocates for the Appellant.

M/s. Farhan Zia Abrar and Shazia Manzoor, Advocates for the Respondent.

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ARSHAD HUSSAIN KHAN J; Through this First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (C.P.C.), the Appellant has challenged the Judgment dated 09.01.2008 and Decree dated 23.01.2008 passed by the learned District & Sessions Judge, Karachi-West, in Summary Suit No. 08 of 2007. By virtue of the impugned judgment and decree, the summary suit instituted by the Respondent/Plaintiff under Order XXXVII Rule 2 C.P.C. for recovery of Rs.21,50,000/- along with interest and costs was decreed against the Appellant.

2. The facts giving rise to the present appeal, as set out in the plaint, are that the Respondent/Plaintiff instituted Summary Suit No.08 of 2007 under Order XXXVII Rule 2, C.P.C. against the Appellant/Defendant for recovery of Rs.21,50,000/-. The claim arose out of an alleged transaction for the sale and delivery of second-hand textile machinery for a total consideration of Rs.26,50,000/-. According to the Respondent, the Appellant initially issued two post-dated cheques of Rs.5,00,000/- each, out of which one was encashed, whereas the other, bearing No.CA-2449369, was dishonoured. The Appellant thereafter, allegedly issued three further cheques, namely Cheque No.2840603 for Rs.2,00,000/-, Cheque No.2840604 for Rs.2,00,000/-, and Cheque No.2840605 for Rs.1,00,000/-, besides executing a Promissory Note dated 05.12.2006 for Rs.11,50,000/-. The said cheques were allegedly dishonoured and the amount under the Promissory Note also remained unpaid. Consequently, the Respondent instituted the aforesaid suit for recovery of the outstanding amount of Rs.21,50,000/-. During the proceedings before the learned trial Court, summons were directed to be issued to the Appellant, who was stated to be residing/carrying on business at Faisalabad. Thereafter, substituted service through publication in a newspaper was ordered on 21.08.2007. Treating the Appellant as duly served and having failed to file an application for leave to defend within the prescribed period, the learned trial Court proceeded against him and ultimately passed the impugned ex- parte judgment and decree.

3. Learned counsel for the Appellant vehemently argued that the impugned judgment and decree are not sustainable in law, as the service of summons upon the Appellant was defective and contrary to the mandatory requirements of Order XXXVII Rule 2 C.P.C. read with the relevant provisions of Order V C.P.C. He contended that, even after ordering substituted service through newspaper publication, the learned trial Court proceeded against the Appellant without affording him the prescribed period of ten days from the date of valid service/knowledge to enter appearance and seek leave to defend. According to learned counsel, the trial Court acted prematurely without first satisfying itself that proper service had been effected upon the Appellant through the Sessions Judge, Faisalabad, or that copies of the plaint along with the relevant documents and annexures had been duly supplied to him. Learned counsel further contended that the dispute between the parties was not amenable to summary adjudication, as it involved disputed questions of fact relating to the alleged sale and supply of second-hand textile machinery, defects therein, and the nature and adjustment of payments allegedly made through banking channels. Such controversies, according to him, raised substantial and bona fide triable issues requiring recording of evidence and could not lawfully have been determined merely on account of the Appellant’s alleged failure to seek leave to defend. He, therefore, prayed that the impugned ex-parte judgment and decree be set aside and the Appellant be afforded an opportunity to contest the suit on merits in accordance with law.

4. Conversely, learned counsel for the Respondent, while relying upon the written objections filed on record, strongly opposed the appeal and supported the impugned judgment and decree. He contended that pursuant to publication of the summons in Daily Jang dated 21.08.2007, the Appellant appeared through counsel before the learned trial Court on 04.09.2007 and undertook to file Vakalatnama, which was subsequently filed on 12.09.2007. He further submitted that a copy of the plaint was initially dispatched to the office of the Appellant’s counsel through TCS courier and, thereafter, a complete copy of the plaint along with its annexures was personally delivered to the Appellant’s counsel on 18.10.2007 against his written acknowledgment and signature. Thus, according to learned counsel, the Appellant had actual knowledge of the proceedings and was duly supplied with the requisite pleadings and documents, yet deliberately failed to file an application for leave to appear and defend within the prescribed period of ten days. Learned counsel further submitted that the Appellant had neither denied the underlying transaction relating to purchase of the machinery nor the issuance of the negotiable instruments forming the basis of the suit, which remained dishonoured/unpaid to the extent of Rs.21,50,000/-. He, therefore, argued that, in the absence of a timely application for leave to defend, the allegations contained in the plaint were rightly deemed admitted in terms of Order XXXVII Rule 2(2), C.P.C., and the learned trial Court was fully justified in passing the impugned decree in favour of the Respondent. He accordingly prayed for dismissal of the appeal.

5. Having heard the learned counsel for the parties and upon perusal of the record, as well as the objections filed by the Respondent, we have given anxious consideration to the rival contentions. The record reflects that on 10.04.2007, the learned Trial Court admitted the underlying suit and ordered issuance of summons to the Appellant. On 07.05.2007, the matter was adjourned to 30.05.2007 for want of a report from the learned District Judge, Faisalabad. On 30.05.2007, the matter was again adjourned to 17.07.2007 for the same reason, and thereafter, on 17.07.2007, it was further adjourned to 31.07.2007, again for want of the requisite report. On 31.07.2007, the learned Trial Court directed that service upon the Appellant be effected through publication. Pursuant thereto, notice was published in Daily Jang, Lahore, on 21.08.2007. When the matter came up before the learned Trial Court on 28.08.2007, the Appellant was ordered to be proceeded against ex-parte and the Respondent was directed to file ex-parte proof. Subsequently, on 04.09.2007, learned counsel appeared on behalf of the Appellant and furnished an undertaking to file the Vakalatnama, besides moving an application seeking supply of a copy of the plaint along with its annexures. Upon becoming aware of the ex- parte order dated 28.08.2007, the Appellant, on 05.09.2007, also filed an application seeking recall thereof. The record, however, does not disclose that any order was passed on the Appellant's application seeking supply of a copy of the plaint along with its annexures. Insofar as the application seeking recall of the ex-parte order dated 28.08.2007 is concerned, the same was dismissed by the learned Trial Court on 07.01.2008. Shortly thereafter, on 09.01.2008, the suit filed by the Respondent was decreed through the impugned judgment.

6. The fundamental question that requires determination in the present proceedings is whether the learned Trial Court was justified in proceeding ex-parte against the Appellant on 28.08.2007, before the expiry of the mandatory period of ten days available to the Appellant for filing an application for leave to appear and defend the suit.

7. Admittedly, the notice was published in Daily Jang, Lahore, on 21.08.2007, whereas the learned Trial Court proceeded ex parte against the Appellant on 28.08.2007, i.e., only seven days thereafter. Therefore, even if the publication is assumed to constitute valid and sufficient service, the statutory period of ten days provided to the Appellant under Order XXXVII Rule 3 C.P.C. for seeking leave to appear and defend had not yet expired. The order proceeding ex-parte was thus passed prematurely, without allowing the Appellant the full period prescribed by law.

8. It may be observed that the procedure prescribed under Order XXXVII C.P.C. is summary and exceptional in nature, as it restricts the ordinary right of a defendant to contest a civil suit unless leave to defend is obtained from the Court. Consequently, strict adherence to the procedural safeguards provided thereunder is indispensable. In particular, service of summons in the prescribed Form No.4 of Appendix B to the C.P.C., along with a copy of the plaint and the documents relied upon, assumes material significance, since the period for seeking leave to defend can only operate meaningfully when the defendant has been duly informed of the claim against him and furnished with the necessary pleadings and documents.

9. Viewed in this context, the record does not establish due compliance with the prescribed procedure. The Appellant was treated as having been sufficiently served solely on the strength of the newspaper publication dated 21.08.2007. There is, however, no material on record demonstrating that the prescribed summons, together with the plaint and its annexures, had earlier been duly served upon the Appellant through the learned District & Sessions Judge, Faisalabad, where he resides and carries on business. Mere substituted service through publication could not, in the circumstances, be regarded as a substitute for compliance with the mandatory safeguards governing proceedings under Order XXXVII C.P.C.

10. Moreover, the subsequent events are equally significant. On 04.09.2007, learned counsel appeared on behalf of the Appellant, undertook to file the Vakalatnama and sought supply of the plaint along with its annexures. On the very next day, i.e., 05.09.2007, the Appellant moved an application seeking recall of the ex-parte order dated 28.08.2007. The record does not show that the application seeking copies of the plaint and annexures was ever decided or that the requisite documents were supplied pursuant thereto. Notwithstanding the Appellant's appearance and his attempt to participate in the proceedings, the recall application was dismissed on 07.01.2008 and the suit was thereafter decreed ex-parte on 09.01.2008.

11. In our view, the Appellant's subsequent appearance could neither validate the prematurely passed ex-parte order nor cure the non-compliance with the mandatory procedure prescribed under Order XXXVII C.P.C. Once the ex-parte order itself had been passed before expiry of the statutory period, all subsequent proceedings founded thereon remained affected by that procedural defect. The learned Trial Court was required to afford the Appellant the complete statutory period and a meaningful opportunity to seek leave to appear and defend after due service and supply of the requisite pleadings and documents. The course adopted by the learned Trial Court, therefore, cannot be sustained in law.

12. Additionally, the defence sought to be raised by the Appellant, inter alia, concerning the previous banking transactions between the parties, the alleged supply of defective machinery, and the disputed execution of the promissory note forming the basis of the suit, prima facie raises questions of fact and law requiring proper adjudication. In a summary suit, where the right of a defendant to contest the claim is already circumscribed by the special procedure prescribed under Order XXXVII C.P.C., strict observance of the procedural safeguards assumes greater significance. A decree carrying serious civil consequences ought not to follow where the very foundation of service and supply of the requisite pleadings and documents remains deficient. In the circumstances of the present case, the Appellant was deprived of a fair and meaningful opportunity to seek leave to defend and to have his defence considered in accordance with law.

13. In view of the foregoing discussion and observations, we are of the considered view that the impugned judgment and decree cannot be sustained in the eye of law. Consequently, the instant First Appeal is allowed, and the impugned Judgment dated 09.01.2008 and Decree dated 23.01.2008, passed by the learned Trial Court in Summary Suit No.08 of 2007, are hereby set aside. The matter is remanded to the learned Trial Court for proceeding afresh in accordance with law. Since the Appellant is now fully aware of the proceedings, he shall be treated as duly served and shall file his application for leave to appear and defend within ten (10) days from the date of this order. Upon filing thereof, the learned Trial Court shall decide the said application on its own merits, strictly in accordance with law, without being influenced by any observations made herein concerning the merits of the respective claims and defences of the parties.

Since the matter pertains to the year 2007 and has remained pending for a considerable period, the learned Trial Court is directed to proceed with the matter expeditiously and make every endeavor to conclude the proceedings, preferably within a period of three (03) months from the date of receipt of a copy of this order. Unnecessary adjournments shall be discouraged, and the parties shall extend full cooperation to the learned Trial Court for expeditious disposal of the matter.

The appeal stands disposed of in the above terms alongwith pending application(s), with no order as to costs.

JUDGE

Naveed PA