SHAHID WAHEED,J. This appeal is of the plaintif f and arises from a summary suit which was instituted by it under Order XXXVII CPC for recovery of Rs.118,796,252/- on the basis of certificates of investment and certificates of deposit. The defendant-respondent after having received summons filed an application before the learned Trial Court seeking leave to appear and defend the said suit. It was maintained in the application that certificates of investment/certificates of deposit did not fall within the ambit of negotiable instrument; that the subject matter of the suit was exclusively triable by a Banking Court under the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001; and, that the suit under Order XXXVII CPC was not competent. The averments made in the above said application were controverted by the plaintif f-appellant. The learned Trial Court while hearing arguments on the application for leave to appear and defend the suit passed the impugned order dated 27.11.2015 whereby the plaint was returned under Order VII Rule 10 CPC for its presentation before an appropriate forum on the ground of bar of jurisdiction.
2. The above facts of this case give rise to a question of law whether the learned Trial Court without deciding the application for leave to appear and defend a summary suit could return the plaint under Order VII Rule 10 CPC for its presentation before an appropriate forum.
3. In order to provide the peg on which the above referred question is to be hung, it is necessary to examine the relevant provisions of law. The plaintif f instituted suit under Order XXXVII CPC which is procedural in nature and provides for a speedy , efficacious and summary remedy , for recovery of money on the basis of bill of exchange, etc. This provision is a departure from the procedure provided for ordinary suits. Order XXXVII CPC is, however , only an enabling provision and a plaintif f wishing to enforce a bill of exchange etc. may at his option bring a summary suit under this Order or may institute a suit under ordinary procedure. The advantage to the plaintif f for adopting such a procedure is provided under Order XXXVII Rule 2 CPC which contemplates that without leave of the Court a defendant cannot appear and defend the suit, as a matter of right. He has to apply for leave to appear and defend the suit. Without obtaining leave to appear and defend, a defendant will not be heard by the Court in defence of the action. A defendant may apply for leave within 10 days of the service of summons upon him. If he does not apply for such a leave or if leave is refused the plaintif f will be entitled to a decree and all the allegations made in the plaint are deemed to be admitted.
4. Now, on the basis of above analysis of the provisions of Order XXXVII CPC, I advert to the case on hands. The defendant-respondent in his application for leave to appear and defend the suit raised, inter alia, the issues: (i) whether on the basis of certificates of investment and certificates of deposit a summary suit under Order XXXVII CPC could be instituted?; (ii) whether the certificates of investment/ certificates of deposit fell within the ambit of definition of "finance" as provided in Section 2 (d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001?; (iii) whether the plaintiff-appellant could be held as customer as defined in Section 2 (c) of the Financial Institutions (Recovery of Finances) Ordinance, 2001?; and, (iv) whether the controversy between the parties was exclusively triable by a Banking Court? These issues constituted a root question relating to the jurisdiction of the Trial Court and might be relevant for granting leave to the defendant-respondent to defend the suit. Though this question should have been decided at the earliest but after granting application for leave to appear and defend the suit as prior to that stage neither the defendant-respondent had locus standi to attack maintainability of suit nor question of jurisdiction could be considered in depth. In this regard guidance may be had from the cases of Cotton Export Corporation of Pakistan (Pvt) Ltd v Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others (1993 CLC 2217), Sh. Muhammad Irfan and others v Sitrar Commission Shop and others (2005 MLD 851) and Naeem Iqbal v Mst. Zarina (1996 SCMR 1530).
5. In view of above, answer to the question, under reference, is given in the negative and it is held that learned Trial Court without deciding the application for leave to appear and defend the suit could not return the plaint under Order VII Rule 10 CPC for its presenta tion before an appropriate forum. Thus, order dated 27.11.2015 of the learned Trial Court is not valid.
6. In the sequel, this appeal succeeds. Order dated 27.11.2015 of the learned Trial Court is hereby set aside.
Consequently , the case is remanded to the learned Additional District Judge, Lahore, who shall first decide the application of the respondent-defendant seeking leave to appear and defend the suit and thereafter proceed with the suit in accordance with law. Parties are directed to appear before the learned Additional District Judge, Lahore, on 20.02.2017. No order as to costs.