' On 28th October 1978, the Judge Small Cause Court, Lahore, decreed a suit brought by the respondent, National Bank of Pakistan, against the petitioner, Muhammad Iqbal Fasih for recovery of Rs, 993.30 on the basis of a loan advanced by the respondent to the petitioner. The petitioner has, therefore, come up in revision to this Court.
2. Learned counsel for the petitioner contended that the procedure adopted by the learned Judge of the Small Cause Court was not in accordance with law. He pointed out that the process issued by the learned trial Court was a notice requiring the petitioner to appear before the said Court for filing reply to the proceedings launched against him by the respondent. It was vehemently urged by the learned counsel for the petitioner that since the suit was brought before the Small Cause Court, under the proviso to rule 5 of Order V of the Code of Civil Procedure, the learned trial Court should have issued to the petitioner a summons for the final disposal of the suit and not the aforesaid notice. Another plea raised by the learned counsel was that on the date on which the petitioner appeared before the learned trial Court it immediately proceeded to record the statement of the petitioner and that of the learned counsel for the respondent, and decided the suit on the assumption that the petitioner had conceded the claim of the respondent although there was no such confessional statement by him.
3. While replying to the arguments of the learned counsel for the petitioner, it was not disputed by the learned counsel for the respondent that the trial Court should have issued a summons for the disposal of the suit instead of sending a notice to the petitioner but he was of the view that by issuing a notice instead of a summon of the aforesaid type, the trial Court had committed an irregularity which did not invalidate its decision. On the merits of the case, he maintained that the respondent had tendered in evidence the statement of accounts which was admissible in evidence without any formal proof and, therefore, the learned Judge of the Small Cause Court was justified in decreeing the suit on the basis of the said statement. He cited Messrs Farid Sons Ltd., Karachi v. Messrs Ghulam Farid Muhammad Saeed and 13 others (1) in support of his contention.
4. Admittedly, in the present case, the learned Judge of the Small Cause Court had issued a notice to the petitioner requiring him to file his reply (written statement) in the suit brought by the respondent although under the proviso to rule 5 of Order V of the Code of Civil Procedure it was obligatory for him to issue summons to the petitioner for the disposal of the suit. Thus, when the petitioner, appeared before the trial Court in obedience to the notice issued to him he had no notice of the fact that the whole suit shall be disposed of on that day. Had he known this, he, might have engaged some counsel or taken with him witnesses or other documents to show that the respondent was not entitled to the amount claimed by it but as the process sent to him was not for the disposal of the suit he did not take any of the aforesaid measures. What actually happened was that when the petitioner appeared before the trial Court all by himself, the Court recorded his statement (not being a confessional statement) and that of the counsel of the respondent and decided the suit. Thus, the petitioner's case was prejudiced on account of his having not been informed that the suit would be finally decided on the very day on which he was asked to appear before the trial A Court for filing his reply. I am, therefore, of the view that the learned trial Court committed a material irregularity in not issuing a summons for the disposal of the suit to the petitioner and since the same had caused prejudice to his case, the aforesaid lapse on the part of the trial Court is fatal to the impugned judgment and decree.
5. As for the objection of the learned counsel for the petitioner in regard to the manner in which the suit had been decided by the learned trial Court, I find that when the parties appeared before the learned Judge of the Small Cause Court he straightaway proceeded to record the statements of the petitioner and that of the learned counsel for the respondent. There is nothing on the record to show that he recorded the statement of the petitioner by way of evidence and that after making his own statement he had closed his case. Such a statement was not made even by the learned counsel for the respondent. It would, therefore, follow that the statements recorded by the learned trial Court were not by way of evidence.
6. The statement made by the petitioner cannot be treated as a confessional statement either because in that statement he did not concede the
(1) PLD 1972 Lah. 311 respondent's claim for,- 14s.
993.30. He admitted the execution of certain documents but none of those documents contains such an admission by the petitioner. While admitting the execution of those documents he said that he had got a loan of Rs, 400 from the respondent. He also admitted having written two letter's to the respondent, which were probably put to him by the learned counsel for the respondent. In these two letters he had disputed the correctness of the statement of accounts maintained by the respondent and averred that he was liable to pay Rs, 200 only. The statement of accounts produced by the learned counsel for the respondent was, perhaps, not shown to the petitioner when his statement was being recorded because his statement does not contain, any comment by him on the statement of accounts, While deciding the suit, the learned Judge of the Small Cause Court observed that the facts of the case were admitted and the only dispute raised by the petitioner was that he was not liable to pay interest. This observation, by the trial Court, is, however, contrary to the record to which a detailed reference has already been made. I am, therefore, of the considered view that the learned trial Court did not dispose of the suit in a proper and judicious manner and, therefore, the judgment and decree passed by it cannot be sustained.
7. As for the case of Messrs Farid Sons Ltd., Karachi relied upon by the learned counsel for the respondent there can be no dispute on the proposition that the statement of accounts can be received in evidence without formal proof but there is no authority for the proposition that such a statement is conclusive evidence of what is represented by the entries made therein and leaves no scope for the evidence in rebuttal. The petitioner was entitled to rebut these entries but, as explained above, he was not allowed any opportunity to do so.
8. For the reasons given above, the judgment and decree passed by the learned Judge of the Small Cause Court cannot be upheld. I, therefore, accept this revision with costs, set aside the impugned judgment and decree and remand the case to him for fresh disposal in accordance with law.