MUHAMMAD RAZA KHAN, J. - On 12.2.2004 the plaintiff Gul Jahan filed a suit under Order XXXVII, CPC for the recovery of Rs. 2,12,797/-. The defendant/petitioner applied for leave to defend on the ground that the promote Dated 14 7 2003 was-forged, fictitious and inadmissible in evidence.
However, it appears that vide order dated 15.5.2004, he was granted leave to defend without application of mind to the requirements of Rule 3(2) of Order XXXVII which reads:-
2. Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security ............ Or otherwise as the Court thinks fit."
A written statement was accordingly filed, issues were, framed in the mechanical way, detailed evidence was recorded and thereafter by his judgment and decree, dated 7.2.2005, the learned Additional District Judge.-I, D.I. Khan held that "the plaintiff has successfully proved his suit and is entitled to the decree as prayed for. This judgment and decree has been challenged through this regular first appeal.
2. At the time of preliminary hearing of this regular first appeal the learned counsel for the appellant was asked about the fulfillment of condition of the payment of- security or deposit in Court to which he replied that the appeal was being filed under Section 96 of the . CPC and' there is no provision therein that the decretal amount must either be deposited or security be provided for such payment. He -further added that since the original Court has not imposed any such condition which amounted to grant of leave to defend unconditionally, therefore, any such condition cannot be imposed at the appellate stage.
3. I am of the view that although the regular first appeal is filed under Section .96 read with Order 42 of the C P C. But it cannot be ignored that Order XXXVII, CPC is also a part of the CPC and the spirit of the Order has to be. Appreciated while processing, the appeals against the decrees under the said Order. The spirit of grant of conditional leave to defend is to ensure the authenticity of the negotiable instrument. When the Trial Court passed a decree on the basis of the correctness and validity of the negotiable instrument, its credibility is further enhanced and the admission of appeal in a mechanical and routine way is likely to damage the spirit of law.
4. Order XXXVII, CPC is titled as "summary procedure on negotiable instruments". A special procedure has been prescribed therein with a view to ensure expeditious disposal of cases based on negotiable instruments. That is why the concept of leave to defend was inserted. This ing order needs proper application of mind whether the leave be granted conditionally or without conditions.
If it was granted conditionally, whether the total amount or part thereof shall be require^ to be deposited in the Court or the security will be required to be obtained from the defendant.
5. The procedure of trial of the suits based on- negotiable instruments as stated in Order XXXVII, CPC has to be followed having regard to the 'special rules of evidence contained in Chapter 13 of the Negotiable Instruments Act, 1882 Keeping in view the presumptions and the estoppels stand in Sections 118 to 122 of the Negotiable Instruments Act, the matter of burden of proof has also to be decided by the Court with proper application of mind/ and not mechanically. The summary procedure requires that the aim of legislature being the expeditious disposal of cases must be kept in view instead of following the routine civil procedure. If the leave to defend is allowed mechanically and the defendant is allowed to file the written Statement without any conditions and without restricting to the points on which leave to defend was granted and if the issues are framed on the allegations raised in the written statement and the onus to prove is fixed without caring for the presumptions and estoppels contained in the Negotiable Instruments Act and evidence is recorded like a normal civil suit, the entire purpose of the law shall be defeated:
6. The Negotiable . Instruments Act was promulgated in 1882 and Order XXXVII, CPC was incorporated in the Code of- Civil Procedure in 1908 indicating the will of legislature for expeditious disposal of such cases. After the lapse of about more than a century, now it is the extreme need of the time that such matters should be given due care for expeditious disposal and the normal procedure of the trial of a money suit should be avoided. Under Order XXXVII, CPC the level of the adjudicating forum is raised from the Civil Court to the District Court. The defendant is not allowed to appear on the. Routine dates fixed and communicated through the normal summons. He is required to appear within ten days of receipt of specially designed summons and to apply for leave of the Court to defend the suit. The introduction of concept of leave to defend is with a purpose to narrow down the objections of the defendant to the specific issue. Thereafter on certain conditions, he may be allowed to defend. The burden of proof has to be placed in consonance with the special rules of evidence stated in the Negotiable Instruments Act. Finally after the decision of the case in favour of the plaintiff, the decree has to be executed forthwith in compliance with Rule 3(2) of Order XXXVII, CPC. This shall be possible only if the learned Trial Court applies the mind at each stage of hearing and keeps in view the intention of legislature for the expeditious disposal of cases by following the "summary procedure''
7. The appeal, being a continuation of the' process of the civil suit, has to be heard and decided with the same spirit. The presumption of truth attached to certain- parts of the negotiable instruments is doubled when a decree is passed by the learned Trial Court after the hearing of the case, ln such a situation the compliance with the spirit of the legal provisions becomes all the more necessary.
8. There is a provision in Rule 7 of Order XXXVII, CPC that "save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the normal, manner". This Rule is normally misunderstood and misinterpreted. If it is presumed that in the written statement all sorts of objections could be raised, and dozens of issues are framed and the plaintiff is burdened to prove the case by producing several witnesses and in rebuttal the defendant is also required to produce several witnesses, it is afraid the purpose of law and particularly the title of Order XXXVII, CPC being "summary procedure" shall be defeated.
Unfortunately-it has become a practice that certain precedents relating to isolated discussion of some issues are highlighted and such observation is considered to be the conclusive interpiuion of law w mout looking into the details of such matters. When the law inquires a thing to be done in a particular manner, it shall be legal and valid only if it is done in the same manner and not otherwise. If the conditions of Order XXXVII, CPC are not complied with in letter and spirit and the matter are processed like the routine civil suits, the very purpose of negotiable instruments and the "summary suits" based thereon shall be defeated, lt shall be unfortunate not to. Follow the will of legislature prescribed a century ago in the present electronic age. The global requirement now to settle- the commercial disputes, with extra speed if not electronic one. The claims based on the negotiable instruments are purely money matters requiring a certain level of extra alertness, the due compliance of the spirit of law and the need of the international commercial activity.
9. The specific issue relating to the compliance of Rule 3(2) of Order XXXVII,' CPC, the spirit of the law requires that the conditions required to be imposed at the time of grant of leave to defend may continue till the disposal of the appeal. Appeal is. Undoubtedly the continuation of the original suit and any order passed, has to be continued during the process of appeal against the decrees under Order XXXVII, CPC, because had-there been an order of deposit in Court or furnishing security at the time of grant of leave to defend, the same should have continued till the disposal of the appeal. Since an omission has been committed at that stage, it has to be rectified at the appellate level. Hence, the appeal is admitted to regular hearing subject to the condition that the appellant deposits a sum of Rs. 1,00,000/- in cash in the Court of learned District Judge and also furnishes security bond for the remaining decretal amount of Rs. 1,12,797/- within a period of one month henceforth, failing which, the appeal shall be deemed to have been dismissed in lime line.