This Civil Revision petition under section 115, C.P.C. Has been directed against orders dated 16-8- 2001, 24-8-2001 and 3-9-2001 passed by the learned Additional District Judge-IV, Quetta during pendency of proceedings in Civil Suit No,1 of 2001 filed by the respondents under Order XXXVII, Rule 2, C.P.C.
2. The brief facts of the case are that on or about 19-3-2001 the respondent instituted Civil Suit under Order. XXXVII, Rule 2, C.P.C for recovery of Rs,10,00,000 with interest at bank rates against the petitioners in the Court of learned District Judge Quetta and the same was sent to the Court of learned Additional District Judge-V, Quetta which was registered as Civil Suit No,1 of 2001. The learned transferee Court hereinafter referred to as the learned Court, issued summons to the petitioner/defendant within the purview of Rule 2 of Order XXXVII, C.P.C. In response to the notice, the petitioner filed an application for leave to defend the suit on 3-5-2001 and, the same was adjourned to 11-5-2001 for arguments on the application filed by the petitioner. The case of the respondent/plaintiff as set up in the plaint is that on the request of the petitioner for completion of his contract 'work loan of Rs,10,00,000 was provided by him to the petitioner and subsequently; the respondent made demand for the return of the loan amount from the respondent, who in response to the demand issued three cheques in favour of the respondent/plaintiff (i) Cheque No,19182950 dated 6-6-2000 of Rs,3,00,000 drawn at Allied Bank of Pakistan, Chaman Pathak Branch, Quetta, (ii)
Cheque No, 19182948 dated 9-6-2000 amounting to Rs,2,00,000 of the aforesaid Branch and (iii)
Cheque No,019734 dated 25-10-2000 of Rs,5,00,000 drawn at the National Bank of Pakistan, Jhatpat Branch. Further the case of the respondent/plaintiff is that these three cheques were presented for payment to the concerned branches of the Banks, out of which the last mentioned cheque was presented to the concerned branch of the bank through Platinum Commercial Bank Limited, Shahra-e-Iqbal, Quetta, but al 1 the cheques were returned to the drawer as dishonored, consequently; the respondent repeatedly approached to the petitioner for payment of the loan amount to him, but he failed to discharge the liability, accordingly; on these averments suit was instituted against the petitioner.
3. The petitioner/defendant sought leave to defend the suit on the grounds that suit under Order XXXVII, Rule 2, C.P.0 in view of the averments as contained in the plaint is not maintainable and that no amount by way of loan was ever obtained or advanced to the petitioner as such; issuance of the alleged cheques for the purpose did not arise and it was alleged that the respondent was working with the petitioner/defendant as Munshi and with mala fide intentions his cheque books in respect of the bank accounts maintained by him with the Allied Bank of Pakistan Limited, Chaman Pathak Branch, Quetta and National Bank of Pakistan Branch Jhatpat were stolen by the respondent, who by misusing the said cheque books filed the suit in order to take revenge of the termination of his service made by the petitioner. Also on certain other grounds of facts mentioned in the application leave to defend the suit was sought for by the petitioner/defendant.
4. During arguments of the parties, learned counsel on 11-5-2001, the learned counsel for the defendant disputed the issuance of the cheques and the purported signatures appearing on the cheques in question and the learned trial Court with the consent of the parties learned counsel for verification of the signatures inscribed on these cheques directed that the same be sent to the concerned branches of the Banks for verification of the signatures of the defendant. On the date fixed in the matter i,e, 22-5-2001. The Manager of the Allied Bank of Pakistan Branch Chaman Pathak, Quetta furnished the report to the effect that both the above mentioned cheques bore the signatures of the' account-holder/defendant and the cheques in original were returned to the Court, whereas; no report was sent by the National Bank of Pakistan Dera Allahyar Branch, and the matter was adjourned to 2-6-2001, on which date also the requisite report was sent to the Court by the Manager of the National Bank of Pakistan Dera Allahyar verifying that the cheque amounting to Rs,5,00,000 dated 25-10-2000 was issued/bore the signature of the account-holder i,e, defendant.
Subsequently; vide order dated 13-6-2001 the learned Court directed the parties to appear in person before the Court on 18-6-2001 and on this date the learned counsel for the petitioner again took up the objection that the purported signatures appearing on the cheques in dispute have been wrongly and incorretly verified by the Banks, because none of the cheuqes in question was issued by the defendant nor he inscribed his signature on any of the cheques in dispute. On the other hand, the learned counsel for the respondents reiterated that the cheques were issued and signed by the petitioner, whose signatures already stand verified by the Managers of the Banks, however, Diary-sheet of the case dated 18-6-2001 shows that representative of the concerned Banks/Managers were requested to be summoned and the request so made by the respondent's learned counsel was accepted, accordingly; process was issued to them. The Manager of the National Bank of Pakistan Branch Dera Allahyar appeared in person before the learned Court on 16- 8-2001, who as per diary-sheet of even date stated that signature inscribed on the cheque was compared and examined with the specimen signatures card of the account-holder, which was found to be correct and genuine/the signature inscribed on the cheque in dispute was that of the account-holder bearing Account No,019734. After oral examination of the Manager made by the learned Court; learned counsel for the defendant requested that statement of the Manager be reduced into writing and opportunity of cross-examination may be afforded to him. The request so made was declined by the Court on the ground that the Manager of the Bank was summoned only for the satisfaction of the Court. Also; a miscellaneous application was filed on behalf of the respondent requesting therein that a proper order on the application for leave to defend the suit may be passed to avoid further complications. As the representative of Allied Bank of Pakistan Branch Chaman Pathak Branch was not present, accordingly; the matter was adjourned to 24-8-2001, but despite service of notice, the representative/Manager of the Branch of the said Bank was not present, consequently; the learned trial Court adjourned the matter and summoned the representative of the Bank for 3-9-2001. On this date Manager of the Allied Bank of Pakistan Limited Chaman Pathak made appearance and verified the report earlier sent by him to the Court, who also produced for inspection specimen signatures card of the account-holder i,e, Haji Behram Khan (petitioner/defendant) and revivified on oral examination that both the cheques in question bore the signature of the said account holder. It is pertinent to note that the learned Court did not reduce into writing the statement of the Manager of the Bank made before it and thought it suffice only to record substance of the examination of both the above mentioned Managers in the relevant order-sheets. After oral examination made by the Court as above said, the learned counsel for the petitioner made the submission that the Manager of the Bank was since not the expert in comparing the signatures and to give an expert opinion, verification made by him with regard to the disputed signatures before the Court was worthless. The objection so made was overruled by the learned trial Court on the ground that the Manager was summoned by the Court simply to verify the report earlier submitted by him and thus; the matter was adjourned to 11-9-2001 for the arguments of the parties' learned counsel on the application filed by the petitioner/defendant seeking for leave to defend the suit.
5. The petitioner feeling himself aggrieved of the procedure and mode adopted by the learned trial Court regarding examination of the Managers of the Banks and not providing opportunity of the cross-examination to the defendant in view of the substances of examination of the representatives of the Banks recorded in the relevant diary-sheets of the case i,e, 16-8-2001 and 3- 9-2001 are assailed in the instant revision petition.
6. The learned counsel for the parties have been heard at length. Mr. Sohail Ahmed Rajput contended that since within the time specified in the summons issued to the petitioner/defendant, application was filed by the petitioner seeking for leave to defend the suit on the grounds mentioned therein, therefore, without taking further proceedings in the matter, such as sending the cheques in dispute to the concerned branches of the bank for verification of the signatures of the account-holder and summoning the Managers of the Bank subsequently for further verification of the reports sent by them to the Court on the request of the respondents learned counsel and recording of substance of oral examination by the Court without affording opportunity of cross- examination to the defendant or his counsel was totally void, without jurisdiction and violative of the prescribed procedure as laid down under Order XXXVII, C.P.C, consequently; the reports submitted by the Managers of the Bank with regard to the cheques in dispute, as well as the substance of examination of the Managers of both the Banks reduced into writing as maintained in the relevant order sheets of the case are liable to be excluded from consideration while disposing of the application filed by the defendant for leave to defend the suit. The learned counsel further contended that it was obligatory for the learned Court to decide the application in the light of the pleadings of the parties and the material produced by each of them in support of their case without any further probe into the contentions or pleas of the parties on the ground that the same was deemed to be essential for the satisfaction of the Court but such course being not permissible under the law rendered these proceedings as nullity in the eye of law, consequently; the same be set aside and directed to be excluded from consideration.
7. On the other hand the learned counsel for the respondent argued that on account of the improper conduct of the case on the part of the petitioner/defendant and frivolous objection being repeatedly raised during arguments before the learned Court, the application for leave to defend could not be decided in the light of the pleadings of the parties and the available material, therefore, in exercise of the power vesting in it and with the consent of the parties' learned counsel; the cheques in question on which signatures of the account-holder were disputed, directed to be sent for verification to the concerned banks and the course so adopted by the learned Court was permissible under the law, secondly; for verification of the reports sent to the Court by the Managers of both the Banks, they were summoned who on appearance verified the reports to which no exception can be taken. According to the learned counsel on the application for leave to defend the suit competently and conveniently can be decided by the learned Court in the light of the available material including the reports submitted by the Managers of the Bank with regard to the disputed signatures of the account-holder/petitioner appearing on the cheques in question and before taking decision on the application, the learned Court can ascertain about the allegations as made in the pleadings and can also orally examine any person with regard to the pleas of the parties regarding admission or denial of any particular fact/s as alleged in the pleadings. The learned counsel to supplement his view point placed reliance on the reported judgment i,e, 1996 CLC (Kar) 1758 and 1999 SCMR 85.
8. The contention put forth on behalf of the parties' learned counsel have been considered in the light of the impugned orders which have been gone through carefully including the contents of the plaint and the application filed by the petitioner/defendant for leave to defend the suit. Also all the- order sheets maintained in the case, as well as the case-law cited by the respondent's learned counsel including the provisions of Order XXXVII, C.P.C. Have been gone through. It is an admitted position that the respondent instituted a suit under Order XXXVII, rule (2), C.P.C. And after registration of the suit summons in the prescribed mode was issued to the petitioner/defendant by specifying therein that he can .Apply for leave to appear and defend the suit supported by affidavit or declaration showing that there is a legitimate cause to defend the suit or reasons that he can be allowed to appear and defend the suit within specified time. In response to the summons, the defendant applied for leave to defend the suit on the grounds mentioned in the application and supported by affidavit. On behalf of the defendant his counsel made appearance and the learned Court, after hearing the parties' learned counsel in the light of their respective contentions raised before the Court, instead of deciding the application for leave to defend the suit, with the consent of the parties' learned counsel, sent the disputed cheques to the concerned branches of the banks for verification of the signature of the account-holders vide order dated 11-5-2001. On a subsequent date, i,e, 18-6-2001 in view of the reports sent to the Court by the Managers of the Allied Bank of Pakistan, Chaman Phatak Branch, Quetta and National Bank of Pakistan, Dera Allah Yar Branch; on the request of the respondent's learned counsel, it summoned Managers of A the said branches of the Bank, who were orally examined and substance of their examination was noted in the relevant order sheets. The learned counsel for the petitioners/defendant took the objections before the Court that the Managers of the Banks cannot be examined at the given stage of the proceedings and in any case if the Court was to consider substance of the examination of the representative of the Banks, he be provided opportunity to cross-examine them but such opportunity was declined on the ground that they were summoned only for the satisfaction of the Court and for verification of the reports earlier sent by them to the learned Court vide impugned order dated 16-8-2001 and 3-9-2001. Bare perusal of the provisions of Order XXXVII, C.P.C. Would go to show that on institution of a suit based upon negotiable instrument summary procedure has been provided and a defendant is not entitled to appear or defend the suit unless he obtained leave from Court to appear and defend the suit. Admittedly in response to the summons issued to the defendant, such application was filed by him and the same was required to have been decided by the learned Court on its own merits by determining as to whether leave to defend the suit was to be refused or granted and thus the trial Court was supposed to proceed as the case may be under sub-rule (2) of rule 2 and under rule 3, Order XXXVII. In the present case leave was given to appear and defend the suit but the learned trial Court, in violation of the prescribed procedure, adopted the above said course regarding verification of the disputed signatures of the account-holder by calling reports from the concerned banks, (though consented to by the parties' learned counsel) and after that summoned the Managers of the banks for verification of the reports submitted by them and orally examined them and reduced the substance of examination in the relevant order sheets, even without affording opportunity of cross-examination to the petitioner: The course so adopted by the learned trial Court in the suit filed under. Order XXXVII, C.P.C. Was not permissible under the law nor the reports submitted by the Managers of the Banks and their subsequent oral examination by the Court, can be considered for the purpose of deciding the application filed by the petitioner/defendant for leave to defend the suit. The case-law cited by the defendant's learned counsel have no application to the case in hand, hence; render no help to his contentions. Only in connection with the suits other than those instituted under Order XXXVII, C.P.C. a Court, at the first hearing of the suit, can competently ascertain from each party or his pleader whether he admits or denies such .Allegations of fact as are made in the plaint or written statement, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made and such admission and denials are required to be recorded within the meaning of Order X, rule 1, C.P.C., whereas; under rule 2 of the said Order a Court is competent to orally examine any party to the proceedings present in person. The Provisions of Order X cannot be made applicable to a suit filed under Order XXXVII, C.P.C. At the stage where even no written statement was filed and the question pertaining to the leave to defend the suit or otherwise was yet to be decided by the learned Court and, secondly; under the said Order only a party to the proceedings or their pleaders or any companion capable to answer can be orally examined by the Court within the purview of rule 2 of Order X, C.P.C. But in the instant case Managers of the Banks were orally examined by the Court out of whom none was a party to the proceedings or representative of either of them, consequently; the reports sent to the learned Court by the Managers of the banks regarding disputed signatures inscribed/appearing on the cheques in question and their subsequent oral examination by the Court being violative of the relevant provisions of law, were void and without jurisdiction to be kept out of consideration while deciding the application filed by the defendant seeking for leave to defend the suit which to be disposed of at the earliest after hearing the parties, on its own merits. Thus in view of the above discussion and reasons this Civil Revision Petition is allowed in the above terms, leaving to parties to bear their own costs.