' This revision petition arises out of the order, dated 31-7-2000 passed by the learned District Judge Islamabad, whereby, the defendant-respondent No.1 was conditionally allowed to defend the suit.
2. Briefly stated the facts of the case are to the effect that; the plaintiff-petitioner had filed a suit for the recovery of Rs.83,33,333 together with mark-up @ Rs.15% per annum, under Order XXXVII, rules 1 and 2 C.P.C. On the basis of cheque number 277755, dated 14-12-1996, subject-matter of the case, issued by respondents Nos.1 and 2 for acquisition of land measuring 1500 and 900 Kanals situated in village Kipra Tehsil and District Islamabad. The process was issued to the respondents and in response thereto they have appeared in the Court and submitted report and parawise comments of the suit which were treated as application to leave to appear and defend the suit by the trial Court which was accepted and leave was granted unconditionally to the respondents.
3. Learned counsel for the petitioner contended that defendant-respondent No.1 had not filed the application for leave to appear and defend the suit in accordance with rule 3, Order XXXVII, C.P.C.
Supported by an affidavit. Further added that parawise comments is a written statement which could be filed after the filing of proper application and it could not be treated as an application under rule 3, Order XXXVII, C.P.C. Further submitted that report and parawise comments are also not supported by an affidavit. He relied on cases of Abdul Rehman v Talib Hussain (1989 CLC 1689), Malik Zafar Iqbal v. Messrs APCO through Managing Partner APCO, Bahawalpur (1998 CLC 1133) and Naeem Iqbal v. Mst. Zarina (1996 SCMR 1530).
4. On the other hand learned Standing counsel has vehemently opposed the arguments of learned counsel for the petitioner contending that huge amount of exchequer is involved in the matter and learned trial Court was competent to treat these parawise comments as an application for leave to appear and defend the suit. He has placed reliance on case of Mst. Suriya Waseem Usmani v L&M International Ltd. (2002 CLD 624). Learned Standing counsel supported the impugned order and prayed for dismissal of the instant petition.
5. I have heard the learned counsel for the parties and perused the record.
6. It is admitted position that plaintiff-petitioner had filed a summary suit under Order XXXVII, C.P.C.
On the basis of a negotiable instrument, the cheque in dispute, issued by the respondents for a consideration of land occupied by the respondents in a joint venture project. The relevant provisions of law i.e. Rule 3 of Order XXXVII, C.P.C. Has provided special prescribed procedure for trial of summary suit filed under Order XXXVII, C.P.C. Which reads as under:-- ' Rule 2 of Order XXXVII, C.P.C. Regarding institution of summary suits upon bills of exchange, etc. Enshrines as under:--
(1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree- (b)A decree passed under this rule may be executed forthwith.
(c)Rule 3 of said Order has further provided that:-- (d)The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits -which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
(3) --...............
7. From minute reading of the above referred law, it reveals that all suits filed on the basis of 'negotiable' instruments shall be filed by presenting a plaint in the form prescribed and the summons to the defendants shall be in Form No.4 in Appendix No.B.
8. If a defendant after being summoned of a summary suit does not obtain leave to appear and defend the suit, the allegations in the plaint shall be deemed to be admitted and plaintiff shall be entitled to a decree as laid down in case of Naeem Iqbal v. Mst. Zarina (1996 SCMR 1530).
9. A perusal of the application filed by the defendant-respondent No.1 establishes that it has not been filed in accordance with the provisions as contained in Rule 3 of Order XXXVII, C.P.C. Nor the same is supported by an affidavit. The said application is reproduced as under:-- ' Sir, ' It is requested that permission for defending the _case in the Court may kindly be accorded.
Parawise reply to the points raised in the petition is submitted herewith.
(2) This authority has requested Law and Justice Division through Ministry of Housing and Works for appointment of legal advisor to defend the case properly.
(Sd.)
(Sabir Hayat)
Director Technical.
10. The application seeking leave to appear and defend the suit would not be maintainable if the same is not supported by any affidavit and leave to appear to defend the suit could only be given conditionally or unconditionally on the application by the defendant, when the same was supported by an affidavit. Affidavit alone should disclose facts showing defence on merits. In absence of such affidavit, defendant could not be deemed to have any defence on merits and entitled to have leave to appear and defend suit. Reference in this context, can be made to cases of 'Malik Zafar Iqbal' and Abdur Rehman (supra).
11. Where the application was not accompanied by an affidavit which was required to be filed under sub-rule (1) of rule 3, Order. XXXVII, C.P.C. The Court would not be justified in allowing leave to appear and defend the suit to the defendant. Failure on the part of the defendant to file affidavit would also render non-compliance of relevant provision of law which is mandatory in nature.
Reliance in this respect, can be made to case of Emirates Bank International v. United Export Ltd.
12. The non-compliance of relevant provision of law would deprive of the defendant to defend the suit and the Court is bound under the law to decline the leave to defend the suit, and the effect of refusal of Court to grant leave or failure on the part of the defendant to comply with the condition of the leave, would be the same i.e. The defendant shall not be entitled to defend suit on any ground and the Court would pass a decree in favour of the plaintiff . The defence of the defendant would be disclosed in the affidavit and in such circumstances it would be incumbent upon the plaintiff to prove consideration or such other facts as the Court may deem sufficient to support the application. In this context, guidance can be sought from the observations made by the Hon'ble Judges of Supreme Court of Pakistan in case of Haji Ali Khan and Company, Abbottabad reported as (PLD 1995 SC 362).
13. As envisaged in rule 3 of Order XXXVII, C.P.C. The defendants in suit filed under Order XXXVII, C.P.C. Have no right to defend the suit without grant of leave by trial Court but this leave can be granted on the application filed by the defendant with an affidavit disclosing the defence on merits and the trial Court will not go into the truth or the falsity of the defence. It has only to examine the defences and objections in the application and where the defence is said to be illusory, leave may be refused and the suit be decreed as laid down in case of Asif Khurshid v. Saeed Ahmad (2000 CLC 913).
14. The application of defendant-respondent for leave to appear and defend the suit had not been judiciously considered by the learned trial Judge, who disposed it of with mere observation that the defendant is a Government Institution and heavy amount is involved. The trial Judge losing sight not merely of the fact that defendant's application was not supported by his affidavit and he was not entitled for leave to defend the suit. Reference in this respect, can be made to case of Muhammad Yousaf y. Allah Yar (PLD 1987 Lahore 101).
15. The reply of the plaint has been treated as an application for leave to defend the suit by the trial Judge. The reply/written statement would be filed by the defendant after the application for leave to defend the suit is allowed and the written statement/reply is not an application for leave to defend as provided in rule 3 of Order XXXVII, C.P.C. And this reply/written statement was illegally treated as an application filed under rule 3, Order XXXVII, C.P.C. By the learned trial Court.
16. In Mst. Suriya Waseem Usmani's case referred to by the learned Standing counsel, the written statement filed by the defendant was treated as an application, observing that the person should not be prejudiced on mere technicalities. The provisions of rule 3, Order XXXVII, C.P.C. By filing application along with affidavit for permission to leave and defend the suit are mandatory in nature and in such a legal situation, the Court should not deviate from the law and such deviation by the Court from the mandatory provisions of law would also prejudice the party/plaintiff.
' While deciding the said case, Hon'ble Judge of Karachi High Court had placed reliance on the cases of Syed Muhammad Saleem v. Ashfaq Ahamd Khan (1989 CLC 1883) and Mst. Samina Sohail v. Humaid Naseer Al-Owais and others (1989 CLC 1949). Both these cases were not attracted to that case as in these cases the controversy was with regard to the written statement under Order VIII, rule 1 and under Order VIII, rule 10, C.P.C. The principles laid down in these two cases were not attracted to the case in hand before the Hon'ble Judge of Karachi High Court. Learned counsel for the petitioner has placed reliance on number of judgments passed by the High Court and the Supreme Court to contradict the citation referred to by the learned standing counsel. Learned standing counsel except the above referred case law has not been able to advance any other decision rendered by any other High Court or the Hon'ble Supreme Court of Pakistan.
17. In view of the above discussion, I have no option but to accept the instant revision petition. Order accordingly. Consequently, the impugned order, dated 31-7-2000 passed by the learned District Judge, granting leave to appear and defend the suit to the defendant/respondent No.1, is set aside and the leave is refused. The trial Court is directed to proceed further with the suit in accordance with law.