1. ' MUHAMMAD TASNIM, J.---Through this Revision under section 115, C.P.C. The applicant has challenged the validity of judgment and decree dated 30-9-2006 passed in Summary Suit No, 7 of 2006 by learned Additional District Judge Naushero Feroze and order dated 28-8-2008 on application under section 12(2), C.P.C. Read with section 37, Rule 3, C.P.C. In the same suit by the same learned Judge.
2. ' The brief facts in short are that respondent filed a suit under Order XXXVII, Rule 2, C.P.C. Against the present applicant for recovery of Rs, 70,00,000. Said suit was based upon a dishonoured cheque issued by the applicant to the present respondent. It was the case of the respondent that said cheque of Rs,70,00,000 presented in bank but the same was dishonoured. In the circumstances summary suit No,07 of 2006 was filed by the respondent before the trial Court on 6-6-2006.
3. Summonses were issued to the applicant who within 10 days time of the receipt of the summonses filed leave to defend application under Order XXXVII, Rule 3, C.P.C. And objection to such leave to defend application were filed by the respondent on 23-6-2006. The learned District Judge Naushero Feroze heard the parties' counsel on the application filed by the present applicant and dismissed the same vide order dated 26-9-2006 deriving the leave to defend the suit to the present applicant. Thereafter affidavit in ex parte proof was filed by the respondent and further proceedings in accordance with law were taken and finally the suit of the plaintiff was decreed vide judgment and decree dated 30-9-2006.
4. ' From the perusal of the record it appears that against the said judgment and decree the present applicant filed an application under section 12(2), C.P.C. Read with Order XXXVII, Rule 3, C.P.C. Such application was contested by the respondent and which came to be dismissed per order dated 25-8-2005. Against the aforesaid judgment and decree and order on application under section 12(2), C.P.C. Has been challenged through the present revision application.
5. ' The learned counsel for the applicant has submitted as under:--
(a) That the summonses of the suit were not issued by the learned trial Court, in Form-IV Appendix- B as required under the provisions of Order XXXVII, C.P.C. Hence, suit of the respondent should have been treated as regular suit instead of summary suit.
(b) He further contended that no opportunity of hearing to the applicant was provided to place the case of the applicant. In this way the applicant has been condemned unheard and the judgment and decree passed by the learned trial Court is nullity in law.
(c) He further argued that judgment and decree impugned in the Revision be set aside and the matter may be remanded to the learned trial Court for decision afresh in accordance with law after providing full opportunities to the applicant to defend the suit.
6. ' In support of his above contentions learned counsel for the applicant has relied upon the cases of Waseem Iqbal v. Tanveer Ahmad (2008 CLC 1612). Naveed Haider v. Messrs Noman Abid Co. Ltd.
7. (2009 CLC 1123), Bilqees Fatima v. Abdul Razzaq (PLD 1986 Karachi 444) and Ali Muhammad Shah v.
8. Ijaz Hussain Shah (2007 MLD 1619).
9. ' As against the above, learned counsel for the respondent has supported the judgment and decree passed by the learned trial Court and has submitted that the same was passed strictly in accordance with law. He further says that no doubt summonses in the suit were not issued in Form-IV, Appendix B, C.P.C., but that irregularly stood cured when applicant filed leave to defend within 10 days. He further says that applicant had not raised the plea of summonses not in Form-1V Appendix-B before the learned trial Court. He further says that on merits no plausible defence was made out by the applicant in his application under Order XXXVII, Rule 3, C.P.C. And leave was' rightly refused to the present applicant by the trial. Court.
10. ' In support of his contention learned counsel has relied upon the case of Manzoor Ahmed v.
11. Muhammad Iqbal (1994 SCMR 560), Rana Mumtaz Ahmed Noon v. Muhammad Javeed Khan (1999 SCMR 1845), Fine Textile Mills Ltd. v. Haji Umer (PLD 1963 SC 163) and 1985 CLC 3023.
12. ' I have heard the learned counsel for the parties and have gone through the record.
13. ' In terms of the order dated 27-4-2009 the R&P of the trial Court has been called and the same has been perused.
14. ' It is an admitted position that suit was filed by the respondent on the basis of a dishonoured cheque. It is also an admitted position that summons were not issued in Form-IV Appendix-B as required under the provisions of Order XXXVII. Neither such objection was raised before the trial Court nor such point was argued by the learned counsel for the applicant while arguing the leave defend application. On the contrary within 10 days time leave to defend application was filed by the applicant under the provisions of Order XXXVII, Rule 3, C.P.C. In this way the applicant had submitted to the jurisdiction of the Court and was conscious enough that proceedings are being initiated by the Court under the summary chapter of C.P.C. On merits as well no case was made out by the applicant before the trial Court as no plausible defence was made out.
15. ' In case of Fine Textile Mills Ltd (supra), the Hon'ble Supreme Court of Pakistan while dealing with the provisions of Order XXXVII, Rule 3, C.P.C. Has observed as under: "The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specially endorsed writ of summonses under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the court of appeal in the case of Kodak v. Alpha Film Corporation (1) was that at the stage when leave to defend is sought "the Judge is not to try the action; he is to see that there is a bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed; it is enough that such a plausible defence is verified by affidavit".
16. The contention of learned counsel for the applicant that summonses were not served upon applicant in Form IV, Appendix B, it will be seen from the record that neither such point was raised before the trial Court nor argued before learned Judge. Since such plea was not raised before the Court of first instance, same cannot be allowed to be raised at the revisional stage.
17. ' In case of Manzoor Ahmed (supra), the Hon'ble Supreme Court of Pakistan while dealing with above aspect has held as under:-- "Plea of non-service of proper notice and non-supply of copy of plaint with summons not taken before courts below. Effect---Such plea not having been taken before courts below, could not be permitted to be raised before Supreme Court".
18. The argument of the learned counsel for the respondent that no plausible defence or specific question of law was raised by the present applicant before the trial Court through his application under Order XXXVII, Rule 3, C.P.C. Hence his application was rightly dismissed and no evidence was required to he led in the circumstances. The argument of the learned counsel for the respondent is also covered by judgment of Rana Mumtaz Ahmed Noon (supra) wherein Hon'ble Supreme Court has Observed as under:-- "Mr. Rana Abdul Raheem, learned Advocate Supreme Court appearing in support of petition, has not at all disputed the fact that petitioner's application seeking leave to appear and defend the suit against him did not contain any specific plea or question of law or fact which required investigation. He. Did not even so much as contest the findings of the learned Judge in Chambers of the Lahore High Court, Bahawalpur Bench. Bahawalpur which are supported by, inter alia, this Court's judgment in case of Messrs National Security Insurance Company Limited and others v.
19. Messrs Hecher Pakistan Limited and others reported as (1992 SCMR 718). We are also of the view that in the absence of even an averment in the application of the petitioner before the trial Court seeking leave to appear and defend the suit against him under Order XXXVII (ibid), the order dated 6-61997 was rightly upheld by the High Court. The petitioner is himself to blame for the situation in which he finds himself in this lis".
20. With regard to the judgment cited by the learned counsel for the applicant in the case of Waseem)
21. Iqbal (supra), the facts of the case are entirely distinguishable and are not applicable to the case in hand. In the reported case summonses were issued in ordinary manner, however leave to defend was filed beyond the period prescribed under the law and such leave to defend application was dismissed. The defendant in the reported judgment felt himself aggrieved against the order of the original court and filed Revision. The High Court came to the conclusion that since summonses were in ordinary form the defendant did not have the knowledge that proceedings are under summary chapter, hence he did not file the leave to defend application within 10 days as contemplated under the provisions Order XXXVII. In the case in hand summonses no doubt were served in the ordinary manner but within 10 days time applicant came forward and filed leave. To defend application under Order XXXVII, Rule 3, C.P.C. Raising plea for grant of leave to defend. Once the applicant has submitted to the jurisdiction under summary chapter and has taken steps under Order XXXVII, Rule 3, C.P.C. At the revisional stage he cannot turn around and challenge the jurisdiction of the Court. Judgment relied upon by the learned counsel is of no help to him.
22. ' The next judgment cited by the learned counsel for the applicant the case of Naveed Haider (supra) rendered by a learned Division Bench of this Court. Such judgment has no relevance with the point in issue.
23. ' The other judgment cited by the learned counsel for the applicant is the case of Ali Muhammad Shah (supra). The said judgment is also distinguishable on facts. In the reported case the borrowers made some application for calling Hand Writing Expert. The trial Court did not call the hand writing expert and proceeded with the matter and decided the leave application. The court in revisional jurisdiction came to the conclusion that opportunity to the defendant to prove his defence should have been provided but no such plea was raised in the present case.
24. ' The last judgment cited by the learned counsel for the applicant in the case of Bilqees Fatima (supra). In the reported judgment ordinary summons were issued to the defendants though suit was filed under the provisions of Order XXXVII. In that case defendant appeared on the first date of hearing and made an application under section 148, C.P.C. For extension of time for filing written statement. Subsequently, defendant in the reported case filed his written statement presuming that the suit is regular in nature. The facts of the reported judgment are entirely distinguishable as in the present case neither the applicant has made any application for extension of time nor he has filed written statement but after service of summonses within 10 days time he made an application under Order XXXVII, Rule 3, C.P.C. Hence at this stage such a plea cannot be allowed to be raised in the revisional jurisdiction.
25. ' For the foregoing reasons. I do not find any merit in this revision application, which is accordingly dismissed.