Citation Name : 2014 CLD 92 LAHORE-HIGH-COURT-LAHORE Side Appellant : KHUSHI MUHAMMAD Side Opponent : MUZAMMAL KHATOON O. XXXVII, Rr. 2, 3 & Appendix B, Form No. 4---Limitation Act (IX of 1908), Art. 159--- Penal Code (XLV of 1860), S. 489-F---Institution of summary suit on negotiable instrument---Dishonouring of cheque issued as guarantee---Suit for recovery of money---Application for leave to appear and defend the suit---Limitation---Plaintiffs-respondents filed suit for recovery of money wherein application for permission to appear and defend the suit was moved by the defendant-petitioner which was dismissed by the Trial Court---Contention of defendant-petitioner was that he was not served in accordance with law---Validity---Report of the Process Server did not show that he delivered the copy of the plaint and other documents appended therewith---In a suit under O. XXXVII, R. 2, C.P.C., the summons was to be issued on Form IV of Appendix-B and it was imperative that the copy of the plaint with annexures should be sent under O.XXXVII, R.2(1), C.P.C. along with the summons and without fulfilment of that legal requirement, the service was not complete and the period of limitation did not start---Copy of the plaint did not appear to have been sent along with the summons, the period of ten days prescribed for submission of the application for leave to appear and defend the suit under Art.159 of the Limitation Act, 1908 did not start---Defendant-petitioner did not owe any amount directly and he had issued the cheque as surety for his son, who was involved in a case under S.489-F, P.P.C. and according to the agreement deed executed between the parties, the cheque was issued as guarantee and the predecessor of the plaintiffs-respondents also reserved the right to move an application for cancellation of the bail granted to son of the defendant-petitioner---Whether the suit under O.XXXVII, R. 2, C.P.C. was maintainable and the defendant-petitioner was in fact liable to make the payment required adjudication and verdict of the Trial Court and such aspect of the matter alone was sufficient to allow the application submitted by the defendant-petitioner---When important questions of fact and law emerged, then the court must exercise its jurisdiction under O.XXXVII, R.3, C.P.C. and should not hesitate in granting the leave to appear and defend the suit---Trial Court erred in dismissing the application by ignoring the important legal aspects of the matter and committed material irregularity causing gross miscarriage of justice---Impugned order was not sustainable under the law---Revision petition was accepted and impugned order was set aside and leave to appear and defend the suit was granted accordingly.
Posted on: Sun, 26 Oct 2014 13:50:37 +0000
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