MUHAMMAD MUZAMMAL KHAN, J---This revision petition assails judgment/order dated 11-9-2003 passed by the learned Additional District Judge, Lahore, whereby application of the petitioner seeking leave to appear and defend the suit by the respondents under Order XXXVII CPC was dismissed.
2. Precisely, facts relevant for disposal of this petition are that respondent filed a suit for recovery of an amount of Rs 5,40,000/- on the basis of two promissory notes, one for Rs 3,40,000/- dated 18-10- 1999, alleged to have been paid on 20-3-2000 and the other for Rs 2,00,000/-dated 18-10-1999 alleged to have been paid on 20-1-2000 before the learned Additional District Judge, Lahore.
Petitioner in response to notice by the trial Court, filed an application seeking leave to defend the suit, which was contested by the respondents and was consequently dismissed vide order dated 11-9-2003 -Petitioner / defendant, has filed the petition in hand for annulment of order of the trial Court dated 11-9-2003.
3. Respondent in response to notice has appeared through his counsel, who opposed the revision petition and supported the order of the Trial Court dismissing leave petition.
4. Learned counsel for the petitioner submits that undeniably, an application as needed by the provisions of rule 2(3) of Order XXXVII CPC praying leave to defend the suit, was filed which has incorrectly been treated as written statement by the trial Court. He further submits that in this application petitioner did raise the plea that pronotes on the basis of which the suit has been filed, are forged but in-spite of it, the Trial Court has remarked that there is not a single ground in this application, entitling permission to defend the suit. According to him, only ground of forgery was enough for grant of leave to defend the suit because the assertion of forgery cannot be determined without recording of evidence, which is only permissible after grant of leave. It is also submitted on behalf of the petitioner that whatever the form of the application may be, it was filed within prescribed period of limitation and the Court was to see its gist and not the form.
5. Learned counsel appearing on behalf of the respondent opposed submissions of the petitioner, supported the order of the trial Court and urged that petitioner did not, at all, file any petition for leave to defend the suit and instead filed a written statement, which cannot be termed as a petition needed under Order XXXVII rule 2(3) CPC. He further contended that law requires that defendant will file a separate application seeking leave to appear and defend the suit, without which defendant cannot be permitted to contest the suit. He in support of his submissions, referred to the judgment in the case of Naeem lqbal v. Mst. Zarina (1996 SCM R 1530).
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Petitioner did file an application within the prescribed period, giving thereon caption as "APPLICATION FOR LEAVE TO DEFEND ON BEHALF OF DEFENDANT" but the form in which it was drafted, is that of a written statement. Under law, Courts have power to treat an application as a written statement and a written statement as an application and at the same time, it is settled that wrong drafting or wrong quotation of law by the party or its counsel does not debar a Court from taking into consideration gist of the assertions made therein. Since no written statement could have been filed without grant of leave, in terms of Order XXXVII rule 2(3) CPC, it is unfair to teat this application as a written statement and to throw it out, simply for the reason that it was not properly drafted, by some body. I am constrained to consider this petition as an application for leave to defend the suit on behalf of the petitioner/defendant and my this view gets support from the cases of Kala Vs. Board of Revenue and another (PLD 1985 SC 208) and MstRashida Khatoon and another Vs. Muhammad Nisa and another (1983 CLC 2209).
7. Adverting to the ground taken by the trial Court that petitioner did not mention a word in the above-referred application entitling him to grant of permission to defend the suit. I have examined the application filed by the petitioner which does contain an assertion towards the end of paragraph 1 on merits that respondent/plaintiff prepared forged pronotes. In paragraph 3 of it, he did assert that he never received any amount from the respondent and did not promise for any repayment. Both these paragraphs demonstrate that pronotes, subject of suit were asserted to be forged and without consideration and to my mind, those assertions were enough for grant of leave to defend the suit, as those cannot be determined without holding a regular trial. My these observations are only tentative and are only Meant to meet the grounds on the basis of which this application was turned down by the trial Court. Since these assertions escaped notice of the learned trial Judge and his findings being contrary to record, are tainted with illegalities and irregularities as envisaged by Section 115, of CPC, his judgment/order dated 11-9-2003 cannot be allowed to be maintained.
8 The case of Naeem lqbal supra referred by the learned counsel for the respondent proceeds on altogether different facts, In this precedent case defendant had not filed any application seeking leave to appear and defend the suit, but instead he filed a regular written statement, as such, this judgment is of no help to the case of the respondent. In the instant case, as observed above, petitioner did file an application for leave to defend the suit, but it was not properly drafted.
9. For what has been discussed above, this revision petition is accepted and order dated 11-9-2003 passed by the Additional District Judge, Lahore is set aside, with the result that application for leave to defend on behalf of the petitioner, in whatever form it is, shall be treated as an application required Under Order XXXVII, rule 2 (3) CPC and will be decided on its merits, without being influenced by observations made in this order for the reasons noted above. Suit is reported to be pending hence parties are directed to appear before the trial Court on the date fixed. There will be no order as to costs. .