Through this civil revision, the petitioner has assailed the order dated 27.02.2025 passed by the Additional District Judge, Multan whereby order dated 28.06.2024 was recalled due to submission of false and forged surety bonds and as a consequence, petitioner's application for leave to appear and defend the suit was dismissed.
2. Brief facts of the case are that the respondent instituted a suit under Rules 1 and 2 of Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.70,00,000/- against the present petitioner wherein power of attorney alongwith application for leave to contest was filed on behalf of the present petitioner on 30.03.2024. The said application was accepted vide order dated 28.06.2024 subject to furnishing of surety bonds in the sum of Rs.70,00,000/-, whereafter, the respondent filed an application for initiation of criminal proceedings against the petitioner and his surety on the ground that surety bond furnished on behalf of the defendant/petitioner is fake. This later application was accepted by the trial court vide order impugned herein.
3. Learned counsel for the petitioner contends that the impugned decision of the trial court is against the law and facts and result of misapplication of law inasmuch as no forgery has been committed by the petitioner. He maintains that the surety also got recorded his statement before the trial court to that effect. He adds that the petitioner be permitted to furnish fresh surety and the impugned order be set aside by this Court in order to allow fair trial right to the petitioner. It has been emphasized that in this petition, the order to the extent of registration of criminal case is not being assailed for that part is reserved by the petitioner in separate appropriate proceedings challenging registration of the criminal case.
4. The impugned order dated 27.02.2025 was passed by the Additional District Judge, Multan to the following effect:- "Although in the reply of the application the defendant took the plea that all this has been done by the plaintiff/petitioner with the connivance of the concerned patwari but his said stance is not digestible at all as beneficiary of the document submitted in the court is not the plaintiff/petitioner rather the defendant/respondent inasmuch as no one is benefited from the same except the defendant/respondent himself. In this perspective the application in hand is allowed. The Reader of this court is directed to get lodge the FIR against the defendant and surety as per law. As the application for leave to defend was accepted subject to submission of surety bonds valuing Rs.70,00,000/- and as the defendant/respondent submitted false and forged surety bonds, so, in these circumstances, order dated 28.06.2024 is hereby recalled and resultantly application of the defendant for leave to appear and defendant the suit is dismissed."
5. It is manifest from a perusal of the impugned order that it outlines the rationale for recalling the earlier order and dismissing the petitioner's application for leave to appear and defend. The core reason in the above order is that the submission of a false document (the surety bond) primarily benefited the petitioner/defendant, who sought to fulfill the condition for obtaining leave to defend.
6. The primary legal question arising in this civil revision is whether a court can retract an order granting leave to defend in a summary suit under Order XXXVII of the CPC, when the condition precedent attached to that leave has not been genuinely fulfilled.
7. In order to properly appreciate the scheme of adjudication of summary suits filed on the basis of negotiable instruments, it would be advantageous to reproduce provisions of Order XXXVII of the CPC, which read as follows:- "1. Application of Order.-This Order shall apply only to the High Court and [to the District Courts, and to any other Civil Court specially notified in this behalf by High Court].
2. Institution of summary suits upon bills of exchange, etc. (1) All suits upon bills of exchange hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms respectively 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 defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree--
(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80 as the case may be of the Negotiable Instruments Act 1881 up to the date of the institution of the suit or for the sum mentioned in the summons whichever is less and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and
(b) for such subsequent interest if any as the Court may order under section 34 of this Code; and
(c) for such sums for costs as may be prescribed: Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ascertained in the ordinary way.
(3) A decree passed under this rule may be executed forthwith.
Issuance of summons
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 of otherwise as the Court thinks fit.
(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to applications under sub-rule (1).
4. Power to set aside decree.- After decree the Court may under special circumstances, set aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court thinks fit.
5. Power to order bill, etc., to be deposited with officer of Court.-In any proceedings under this Order the Court may order the bill hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.
6. Recovery of cost of noting non-acceptance of dishonoured bill or note.- The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.
7. 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."
Plain reading of Rule 3(2) ibid clearly establishes the court's authority to grant conditional leave.
The power of the trial court to grant leave to defend subject to conditions is, thus, a matter of judicial discretion. Implicit in such authority to pass conditional order is the understanding that the fulfillment of the condition is crucial for the leave to remain effective.
8. Rule 2(2) of Order XXXVII of the CPC provides that if the defendant fails to appear or defaults in obtaining leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Although Rule 3 does not explicitly detail the repercussions of default in complying with the conditions of leave, however, notwithstanding such omission, the effect of refusal of the court to grant leave and failure on the part of defendant to comply with the condition of leave, cannot be any different meaning thereby that such defendant is not entitled to defend the suit on any ground whatsoever and the court would pass a decree in favour of the plaintiff while applying its mind to the facts and documents before it. The rationale here is that the conditional grant of leave is contingent upon the satisfactory fulfillment of the stipulated terms. Failure to meet those terms effectively nullifies the leave granted. Guidance has been sought from the judgments in the cases of Haji Ali Khan & Company, Abbottable and 8 others v. M/s. Allied Bank of Pakistan Limited, Abbottable (PLD 1995 362), Abdullah v. Shaukat (2001 SCMR 60) and Muhammad Ramzan and others v. Ghulam Qadir (2011 SCMR 659). Thus, the legal position is clear that when leave to appear and defend a suit is granted subject to a specific condition, the very efficacy of that leave hinges on fulfillment of that condition. If the condition is not met in its true letter and spirit, the order granting conditional leave becomes inoperative.
9. In the present case, the trial court, after conducting an inquiry that included summoning and recording of the statement of the relevant patwari, arrived at the finding that the petitioner/defendant submitted forged surety bonds, which clearly constituted non-compliance of the conditional order granting leave to defend. The submission of a fake surety bond is not merely a technicality rather it constitutes an act of fraud committed with court.
10. In view of above, no illegality or material irregularity in the findings of the court below has been pointed out by the learned counsel for the petitioner warranting interference by this Court in exercise of its revisional jurisdiction under Section 115 of the CPC. Accordingly, this civil revision is dismissed in limine being devoid of any merit.