SULTAN TANVIR AHMAD, J. The respondent instituted suit dated 10.07.2019 (the 'suit') under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 (the 'Code'), against the appellant for recovery of Rs.16,20,000/-, with the averments that the appellant obtained loan from him and for repayment of the same cheque No. 31681794 dated 08.03.2019 (the 'cheque') was issued by the appellant, which was dishonored on presentation before the relevant bank. Leave was granted to the appellant on 06.08.2019, however, he failed to file written statement in spite of repeated directions by the learned trial Court, upon which he was proceeded against ex-parte. The evidence of the respondent was recorded and the learned trial Court decreed the suit against the appellant on 26.11.2019. The appellant being aggrieved, from this judgment and decree, has filed the present appeal.
2. Ch. Aftab Shabbir Arain and Mr. Safdar Abbas Anjum, learned counsel for the appellant have argued that the learned trial Court should have treated the contents of the leave application as written statement instead of proceeding ex-parte or closing the right to file written statement. To substantiate this argument they have relied on different judgments, most of them given under special jurisdiction conferred under the Financial Institutions (Recovery of Finances) Ordinance, 2001.
3. Mr. Muhammad Ashraf Qureshi, learned counsel for the respondent has opposed this appeal. He has stated that the present appeal is filed merely to delay the execution of the impugned judgment and decree; that the appellant being fully aware of the fact that he has issued the cheque to fulfill the obligations to repay the loan, having no defense in the suit based on an instrument carrying presumption of correctness in terms of section 118 of the Negotiable Instruments Act-1881, started to delay the matter by seeking adjournments to file written statement and then took somersault at the appeal stage. Learned counsel for the respondent has further relied upon case titled "Haji Muhammad Siddique vs. Rana Muhammad Sarwar" (2003 CLD 1003) and he has argued that law has already been settled by a learned Division Bench of this Court that upon grant of leave, the procedure given in the Code for ordinary suit is to be followed.
4. Heard.
5. Order XXXVII Rule 2(2) of the Code provides that ... the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defense in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree... This is followed by Order XXXVII, Rule 2(3) of the Code setting up requirements and form of leave application. If the defendant succeeds to obtain the leave, the procedure given in Order XXXVII, Rule 7 of the Code is to be followed, which reads as under:- "Procedure in suits.- Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner."
6. A combined reading of the Rules of Order XXXVII of the Code, particularly the above discussed Rules, reveals that defender of suit filed in summary jurisdiction first has to show a plausible defense. Once success is achieved in doing so, conditional or unconditional, leave can be granted.
Failure at this step can have consequence that the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to decree. However, when the defendant succeeds in obtaining leave, the procedure of suits instituted in the ordinary manner is to be followed. A learned Division Bench of Sindh High Court in case titled "Haji Abdul Wahid vs. Hoechst Pakistan Limited and another" (1993 CLC 1291) has already observed as under:- "We are of the humble view that the stage of proof can only come after the defendant / appellant has been allowed leave to defend the suit and that the nature of the defence has to be determined at the time when the affidavit is put in. At that stage, all that the Court has to determine, is whether, if the facts alleged by the defendant / appellant are duly proved, they will afford a good or even a plausible, answer to the plaintiffs claim. Once the Court is satisfied about that, leave cannot be withheld and no question about imposing conditions can arise; and once leave is granted, the normal procedure of a suit, so far as evidence and proof so obtains. We accordingly accept the contention of the learned counsel for the appellant/defendant that the imposition of the condition by the learned Single Judge in the last paragraph of his judgment has to be removed."
(Underlining is added)
7. Recently, this Court in case titled "Muhammad Ali Khalid vs. Muhammad Talha" (2024 CLC 1184) has also ruled that once leave is granted, the suit shall be converted into a regular civil suit.
Paragraph No. 6 of the same reads as under:- "Order XXXVII, C.P.C. is a special dispensation. Under this Order and unlike in a regular civil suit, procedure has been provided to file and proceed with the suit filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act, 1881. 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, within stipulated time has to seek leave to appear and defend the suit and once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in C.P.C."
(Emphasis supplied)
Similar view has been adopted in the cases titled "Sahibzada Azhar Saleem vs. Muhammad Hanif" (2002 MLD 696) and "Irfan Fazal vs. Zahid Iqbal" (2004 CLC 384).
8. The ordinary procedure and essentials of written statement are given in Order VIII of the Code.
Order VIII Rule 3 of the Code does not permit to deny generally the grounds alleged by the plaintiff.
The defendant has to deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 of the said Order provides that where a defendant denies allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Order VIII Rule 10 of the Code, besides other consequences, provides that when any party from whom a written statement is required but the party fails to file it, the Court can make order in relation to suit as it thinks fit. Keeping in view the same and while dealing with a suit instituted under summary procedure a learned Division Bench of this Court in Haji Muhammad Siddique case (supra) ruled as under:- "7. We have noted that the written statement has not been filed by the appellant despite that numerous directions were given by the Court for filing the written statement. Order VIII, rule 10 C.P.C. empowers the Court to pronounce judgment against the defendant or make such order in relation to the suit as it thinks fit where the party fails to file written statement within the time fixed by the Court, Rule 10 of Order VIII, C.P.C. is penal in nature and it is within the discretion of the Court to announce judgment even without recording evidence. In case of Sh. Abdus Saboor and Brothers v. Ganesh Flour Mills Ltd. (PLD 1967 Lahore 779) it was observed:- "Under rule 10, the Court has been given the discretion to pronounce judgment against the defendant. It does not mean at all that the Court is to take any further steps to ascertain the truth of the contentions raised in the plaint. In the phrase pronounce judgment against him the words pronounce and against him are significant. Once the Court decides to exercise the discretion under rule 10, it has to pronounce the judgment against the defendant.
Further it was observed:-- It is necessary for the Court to record any evidence before it may pronounce judgment under rule 10 of Order VIII."
8. The above-referred case of Sh. Abdus Saboor has been approved by the Honourable Supreme Court while interpreting the provisions of rule 10 of Order VIII, C.P.C. in case of Mst. Hakumat Bibi v.
Imam Din and others (PLD 1987 SC 22)."
9. The learned counsel for appellant has referred to some cases where leave application is treated as written statement, however, most of the said decisions are under special enactments, where legislature has specifically permitted to treat the contents of application, upon grant of leave, as written statement. Whereas, Rule 7 of Order XXXVII of the Code provides that save as provided by this Order, the procedure shall be the same as the procedure in suits instituted in the ordinary manner.
10. The case titled "Mst. Suriya Waseem Usmani and 9 others vs. L & M International (PVT.) LTD. and another" (2002 CLD 624) refers to a decision where in the absence of written statement, defense on counter-affidavit was considered to frame issues for advancement of justice but when it was not having prejudicial effect to the other side. In my opinion the appellant cannot take benefit of this, either. Reading of record reflects that the leave was not granted to the appellant upon him showing any plausible defense but due to statement of the plaintiff that he has no objection to grant leave subject to furnishing surety. This was also accepted by the appellant and then he was directed to file written statement vide order dated 06.08.2019. He kept on seeking adjournments for more than two months for filing written statement. It is not the case when the leave is also in the form of written statement or it contains essentials given in Order VIII of the Code.
The appellant has never requested before the learned trial Court to treat his leave as written statement. In the aforesaid two months absolute last opportunities were granted to the appellant, at his specific requests. Fine was also imposed but all in vain. Finally, on 10.10.2019 the right to file written statement was struck of.
11. The respondent appeared as PW-1 and supported the contents of the suit. He stated that in order to repay the loan, the cheque (Ex.P/1) was issued by the appellant; that it was presented on 18.03.2019 in his account maintained in Sindh Bank Limited, however, the same was dishonoured and returned through memorandum dated 18.03.2019 (Ex.P/3). The signatures on the cheque are not denied by the learned counsel for the appellant or even in the leave application instituted on 03.08.2019. PW-6 (Relationship Manager of United Bank Limited) confirmed that the cheque was sent by Sindh Bank Limited which was dishonoured. PW-2 and PW-3 stood by the respondent regarding plea of loan. PW-4, stamp-vendor, supported the respondent as to issuance of stamp paper on which the agreement (Ex.P/2) was written. PW-5 appeared and deposed that he as a notary public verified the agreement (Ex.P/2), containing his signatures at Ex.P/2/5. There is nothing in rebuttal.
12. For what has been discussed above, I have not found any mistake in the impugned judgment and decree. Accordingly, the present appeal is dismissed. No order as to costs.