Impugned herein is the judgment and decree dated 15.03.2007 of District Judge, Nowshera whereby the suit of the respondent has been decreed as per prayer made in the suit.
2. Precise facts are that respondent/plaintiff company filed a suit in terms of Order-XXXVII CPC for the recovery of Rs. 11,50,000/- with interest against the appellant/defendant company in the Court of District Judge, Nowshera. Appellant/judgment-debtor was put to notice who submitted written statement instead of application for leave to defend the suit. The trial Court decreed the said suit but on revision, the Peshawar High Court, Peshawar set aside the decree with the direction that the written statement filed by the appellant/ defendant be treated as application for leave to defend the suit and be decided as such on merits in accordance with law, vide judgment dated 12.01.2006.
3. The learned District Judge again decreed the suit of the respondent/plaintiff vide impugned judgment and decree dated 15.3.2007 on the ground that the application for leave to defend is not supported by affidavit, as required under the law, hence this appeal.
4. Learned counsel for the appellant contended that once the Hon'ble High Court ordered that the written statement be treated as leave to defend application and be decided on merits, therefore, the learned District Judge was not within his powers to hold that without an affidavit the said application was not competent. This clearly amounts to sitting over the judgment of the High Court which is obviously illegal; that prima facie the amount claimed exceeded the jurisdiction of the learned District Judge as amount for recovery of Rs. 11,50,000/- whereas the pecuniary jurisdiction of the Court is Rs. one million under Section 18 of the Civil Courts Ordinance, 1962 and as such the decree is a void one; that the learned trial Court has failed to take into account that the suit of the respondent/decree holder was hopelessly time barred and that on merits too, the suit was not competent and legal but the learned trial Court over looked all these aspects, hence need reversal of decree.
5. As against this, learned counsel for the respondent/decree holder contended that there is no question of pecuniary jurisdiction and competency of the Court involved, as the suit was filed under special law while referring to Orde XXXVII, Rule-3 of CPC; that in the remand order the Hon'ble High Court has asked for decision of the case on merits, in accordance with law and the law says that affidavit for grant of such leave was mandatory in nature. Reliance was placed on 2005 YLR 1521. It was also brought on record that alongwith the case of the appellant, two other cases of exactly similar nature was also remanded by this Court vide order dated 21.01.2006 in which subsequently decrees were passed and were challenged till the apex Court and at present the same are in the execution stage. The case of the appellant is exactly of same nature, hence the appeal is not entertainable on the same legal and factual ground.
6. Arguments heard and record perused.
7. In the previous round of litigation, this Hon'ble Court remanded the matter with the observations "the written statement filed by the respondent in the suit be treated as application for leave to defend the suit and be decided as such on merits in accordance with law." The words, in accordance with law authorized the learned trial Court to take cognizance of the said written statement which is treated as leave to defend the suit, in accordance with law and as such it was taken up as application for leave to defend the suit but was observed that it is not supported by an affidavit.
8. Under Order-XXXVII, Rule-3 CPC which reads as under:-- Order-XXXVII, Rule-3 (1) Defendant showing defence on merits to have leave to appear. (1) 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.
As such it is mandatory that the application must be supported by an affidavit and in the absence of which, the applicant/defendant could not be deemed to have any defence on merits.
9. The summary suit under Order-XXXVII of CPC on the basis of negotiable instrument, has provided special prescribed procedure for trial in this respect. If a defendant after being summoned for a summary suit does not obtain leave to appeal and defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree as laid down in the case of Naeem Iqbal Vs. Mst. Zarina reported in 1996 SCM R 1530. In the instant case, the written statement which is treated as leave to defend application has not been filed in accordance with the provisions as contained in Rule-3 of Order-XXXVII CPC nor the same is supported by an affidavit. The affidavit alone should disclose facts showing defence on merits. In absence of any such affidavit, appellant/defendant could not be deemed to have any defence on merits and entitled to have leave to appear and defend the suit. Probably during the remand proceeding the said fact was not brought to the notice of Hon'ble Judge in chair, however, the written statement was rightly treated as an application for leave to defend the suit and was adjudicated upon and thereafter on merits due to the main legal flaw of non-filing of affidavit, the same application has been refused.
10.Since it was a legal requirement to support the application for leave to defend and appear, the filing of affidavit was necessary, therefore, it was incumbent upon the appellant/defendant to have filed the said affidavit after the remand or would have requested, in this respect to the trial Court but there is nothing on record to show that appellant made any efforts to fill-in the legal lacunia.
Where the written statement treated as application for leave to defend was not accompanied by an affidavit which was required to be filed under sub-rule (1) of Rule-3, Order-XXXVII CPC, the Court would not be justified in allowing leave to appear and defend the suit to the applicant/defendant.
Failure on the part of the defendant to file affidavit, even after remand, would also render non- compliance of relevant provision of law which is mandatory in nature.
11.The said application for leave to appear and defend the suit has been judiciously considered and rejected by the, learned trial Court after remand. No misreading or non-reading of law or facts have been pointed out by the appellant. Even otherwise, the similarly placed cases of other company ere in execution stage after their decision till the apex Court, therefore, no case of interference has been made out. The Courts cannot deviate from such like mandatory provisions of law.
12.In view of the above, this appeal is dismissed, with no order as to costs. The record be sent back immediately to the executing Court.