1. ' Through this civil revision, order dated 19.10.2016 passed by the learned Additional District Judge, Chunian has been assailed, by virtue of which an application filed by Respondent No 1 for cross- examination of the petitioner's witnesses has been accepted.
2. 2.The facts giving rise to the present civil revision are that a suit under Order XXXVII Civil Procedure Code, 1908 (CPC) for recovery of Rs, 38,000/- on the strength of a pronote dated 10.07.2015 was filed by the petitioner against Respondent No, 1, in which an application for seeking leave to appear and defend the suit was filed by Respondent No, 1 which was rejected vide order dated 29.08.2016.
3. Thereafter, petitioner produced his witnesses however on 19.10.2016 an application was moved by Respondent No, 1 seeking permission to cross-examine the witnesses of the petitioner which was allowed through the impugned order, therefore, this petition.
4. 3.Learned counsel for the petitioner submits that without issuing a notice or giving an opportunity to the petitioner to defend, impugned order has been passed therefore the same is not sustainable.
5. 4.Notice was sent to Respondent No, 1 for his service however he refused to accept the same, therefore, he is proceeded against ex parte.
6. 5.Arguments heard. Record perused.
7. 6.Order XXXVII CPC is a special dispensation. Under this Order, procedure has been provided to file and proceed with the suits filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act 1881; unlike the regular civil suits where general procedure provided under the CPC is followed. In a suit filed under this Order, which is summary in nature, under Rule 3 of the said Order, a defendant who has been served has to seek leave to appear and defend the suit and once the same is allowed, the suit shall be controverted into a regular suit and will be decided in accordance with the general procedure prescribed in CPC. For convenience, Rule 3 of Order XXXVII CPC is reproduced hereunder: "3. 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.
(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.
8. (3).The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)".
9. 7.The important words which have been used in the afore-referred rule are "appear" and "defend".
10. The afore-noted words would show that in order to contest a suit filed under Order XXXVII CPC, a defendant has to file an application under Rule 3 of the Order for seeking leave to appear and defend the suit and if this application is accepted, may be subject to some condition, a defendant will be allowed to contest the suit however if his application is rejected, he shall have no right to "appear" in further proceedings of the suit and to "defend" his case, unlike the regular civil suits, wherein even if a defendant is proceeded against ex parte or during the course of the suit any adverse order is passed against him, he as of right can participate in further proceedings of the suit. Reliance can be placed on judgments reported as Ohulam Muhammad and others u, Mst.
11. Irshad Begum and others [PLD 1964 Lahore 7821, Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud- Din [PLD 1970 Lahore 4281, Azizullah Khan and 4 others v, Arshad Hussain and 2 others [PLD 1976 Lahore 8791 and Police Department through Deputy Inspector-General of Police and another v.
12. Javid Israr and 7 others' [1992 SCM R 10091.
13. 8.The view expressed in the previous paragraph is further fortified upon perusal of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance), in which the procedure which has been provided is pari materia to what has been given in Order XXXVII CPC. Under Section 10 of the Ordinance, a defendant once served has to seek leave of the Court for defending the suit. In the said provision, the word "appear" has consciously been deleted by the legislature and only the word "defend" has been used. Similarly, under the Punjab Rented Premises Act, 2009, wherein an enactment petition under Section 19 of the Act is filed, a respondent under Section 22 has to seek leave to contest the said petition. In this provision also, the legislature has used the words "defendant" and "contest" and has deliberately omitted the word "appear".
14. 9.In these circumstances since there is an express ouster of word "appear" in the said provisions therefore, in a banking a suit/ejectment petition wherein a defendant/respondent is served and IT even if he is not allowed leave to defend/contest the suit/petition, he is not debarred from appearing in the suit/petition.
15. 10.Placing the afore-noted law and interpretation in juxtaposition with the case in hand, the record would show that Respondent No, 1 filed an application for leave to appear and defend the suit however the .said application was declined by the learned trial Court vide order dated 29.08,2016.
16. In these circumstances, since no leave/permission was granted to Respondent No, 1 either to "appear" or "defend" the suit therefore Respondent No, 1 had no right either to appear in the suit and to participate in the proceedings or to file any application inclusive of one for seeking permission to cross-examine the witnesses of the petitioner.
17. 11.The upshot of the above discussion is that this petition is accepted, as a sequel to which impugned order is so Asido. Since the final arguments have been heard by the learned trial Court, therefore, he is directed to decide the suit expeditiously.