The present revision application bas been filed by Habib Bank Ltd. (hereinafter for convenience sake referred to as "the plaintiff") challenging an order of the District Judge, Karachi, whereby unconditional leave to defend a suit under Order XXXVII, rule 1, C. P. C. Was granted to Zaki Muhammad Siddique, Zakir Muhammad Siddique, and Faris Z. Siddique, respondents (hereinafter for convenience sake referred to as "the defendants").
2. The plaintiff had filed a suit bearing No. 32 of 1976 in the Court of District Judge, Karachi, for recovery of an amount of Rs. 25,000, which being covered by a promissory, note fell under Order XXXVII of the Code of Civil Procedure. The case: of the plaintiff was that the promissory note was executed on 1-1-1974 so that the period of limitation for filing the suit had not expired. The defendants in their affidavit for grant of leave set up a case that the blank promissory note had been executed in favour of the plaintiff in March, 1971 and the said promissory note had subsequently been filled in to show that the same was executed on 1-1- 1974. The promissory note produced before the trial Court and a photostat copy thereof produced in tfiis Court shows that the stamp thereon was affixed on 3-3-1971 and the same was issued by the Superintendent of Stamps on 4-4-1971. On such facts the learned District Judge granted unconditional leave by an order dated 16-12-1976 and it will be profitable to reproduce para. 2 of the said order which reads as follows :- "2. I have heard the learned counsel for the parties. The Advocate for the plaintiff has opposed the application. The promissory note is dated 1-1-1974, whereas it is stamped with adhesive stamp bearing the stamp of the Assistant Stamp Office of 4th March, 1971.
This inconsistency between the dates would need investigation. It also involves question of limitation. As such, leave to defend the suit is granted."
3. Mr. Pishori has that since execution of the promissory note and consideration therefore had been admitted by the defendants the District Judge acted illegally or with material irregularity in granting leave to defend the suit unconditionally. On the other hand Mr. Z. U. Ahmad has contended that the promissory note had been executed in March, 1971 and therefore the suit was barred by time. It was further contended that the blank promissory note had been signed by the defendants and the date as now appears in the promissory note had been inserted subsequently with a view to bringing the suit within the period of limitation It has also been contended by Mr. Z. U. Ahmed that revisional jurisdiction cannot be exercised in cases of this nature because neither the order of the District Judge would be considered to be one passed without jurisdiction nor is the District Judge deemed to have acted in the exercise of jurisdiction illegally or with material irregularity.
4. Jurisdiction under section 115 of the Code of Civil Procedure is of a limited nature and can be invoked only when it is shown that the subordinate Court has-
(i) exercised jurisdiction not vested in it by law, or
(ii) failed to exercise a jurisdiction so vested, or
(iii) acted in the exercise of its jurisdiction illegally or with material irregularity.
There can be no two opinions that the District Judge had the jurisdiction to grant leave, conditionally or otherwise. The exercise of such power, even if erroneous would not attract the provisions of section 115 of the Code of Civil Procedure as far as the first clause of the said section is concerned. Normally absence of jurisdiction connotes an absence of power to deal with a particular case or exercise of powers in excess of powers conferred by law. Since Court has the power to grant leave or to refuse leave it cannot be said that the order is one without jurisdiction.
The next question is whether the jurisdiction has been exercised illegally or with material irregularity Whether an order of a Court proceeds on illegality or with material irregularity, the question would always depend upon the provisions of law that have been disregarded. Often times the adoption of a precisely prohibited course is construed as an illegality. Obviously this is not so in the instant case. It then remains to be seen whether the District Judge acted with material irregularity. The words "material irregularity" have come up for consideration by the superior Courts of this country and a fair summary of the decisions would indicate that a Court would be said to have acted with material irregularity when it commits an error of procedure which may affect the ultimate decision in the case. The illegality must be in the manner of arriving at a decision as distinct from arriving at a conclusion. If a Court has jurisdiction, its conclusion whether on a matter of law or fact, cannot be questioned in revision, unless such conclusions affect the decision of a case. The mere adoption of an irregular) mode would not attract section 115, C. P. C. If authorities are wanted for the proposition reference may be made to the cases reported in PLD 1964 SC 97, PLD 1969 Lah. 951 and PLD 1963 Kar. 551.
5. On the point of limitation a fact stands out glaringly on record that the promissory note which bears the signature of the defendants was stamped in March, 1971. No date appears under the signature of the defendants on the promissory note. The promissory note as stated by defendants has been filled up to read 1st January, 1974, as a date of its execution. The case of the defendants is that the amount was obtained in 1971 and Mr. Pishori has not controverted the case to such extent.
He has, however, stated before me that in spite of the amount having been advanced in 1971, no promissory note was obtained from the defendants. While I would not like to prejudice the case of any of the parties because the suit is pending, I must state that normally promissory notes are obtained from the bank at the time of advancing money and in all probability the blank promissory notes obtained by the bank in 1971 would not remain unutilized until 1974. In such circumstances the plea of the defendants may be plausible and the plea of the plaintiff does not appear to be incontrovertible. Suffice it to say that a serious question in regard to limitation arises for consideration in this case and the exercise of power by the District Judge is neither perverse nor opposed to the principle underlying the grant of leave to defend the suit under Order XXXVII, C. P. C.
6. The learned Advocate for the plaintiff has, however, relied on section 54 of the Stamp Act, which deals with return and refund of unused stamps and I fail to see how this provision of law can help advance the case of the plaintiff. The learned counsel also relies on sections 20 and 118 of the Negotiable Instruments Act. Both these provisions create presump--tions and it cannot be said that evidence could not be produced to dislodge these presumptions. Such reference to the provisions of the Negotiable Instruments Act also does not help the plaintiff as far as this revision application is concerned. The learned Advocate has relied on two orders of the Supreme Court in the cases of Haji Karim and another v. Zikar Abdullah (1973 SCMR 100) and Darab Shah v. Premier Bank (1976 SCMR 76). In both these cases unconditional leave was refused to the defendants and the petitions for grant of such leave were dismissed. In the case of Haji Karim it was held that a presumption under section 118 of the Negotiable Instruments Act arises when an instrument is made, drawn, accepted or endorsed for consideration but it was observed by the Supreme Court that such presumption is rebuttable. Again in the case of Darab Shah the Supreme Court came to the conclusion that the promissory note was acknowledged. The present case is distinguishable because the case of the defendants is that they executed the promissory note in 1971 but the date had been subsequently inserted so as to show that it was executed in 1974. To say the least, a factual dispute appears in this case and such a dispute did not appear in the case of Darab Shah.
7. For all these reasons, I am of the view that this Revision Application merits to be dismissed and is hereby dismissed but there shall be no order as to costs.