INAMULLAH KHAN, J.- Petitioner through this petition, filed within the purview of Section 115 of the Code of Civil Procedure (Act-V) 1908, has called in question the vires of order dated 26.06.2025, passed by the learned Additional District Judge-VI D.I.Khan, whereby his application -- permitting him to cross examine the witnesses of plaintiff -- was dismissed.
2. Facts forming factual canvas of the instant petition are that the respondent instituted a suit under Order XXXVII CPC against petitioner for recovery of Rs.44,00,000/-. After service of summons, the petitioner filed an application for leave to appear and defend the suit which was contested by respondent and the same was dismissed by the learned Addl. District Judge-VI, D.I.Khan, vide order dated 01.02.2024. Aggrieved of the order as to refusal of leave, petitioner preferred Civil Revision No.28-D/2024 before this Court which too was dismissed vide Judgment dated 23.10.2024.
3. After the dismissal of application for leave to defend the suit, the learned trial court fixed the case for evidence of plaintiff During the course of recording evidence of plaintiff's witnesses, the petitioner (then defendant) submitted an application for permission to cross examine the witnesses. This application too was contested by respondent and the learned trial Court, after hearing arguments, dismissed the application vide order dated 26.06.2025, which is impugned herein.
4. Arguments heard and record gone through.
5. It is an admitted fact on the face of record that the application for leave to appear and defend the suit, filed under Rule 3 of Order XXXVII CPC, was dismissed by the trial court, and therefore, the trial court -- under sub-Rule (2) of Rule 2 of the Order XXXVII CPC -- was required to passed a decree in favour of the plaintiff. Thus, for sake of convenience, the provisions of Rules 2 & 3 of Order XXXVII CPC are reproduced hereunder:
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 sum for costs as may be prescribed: Provided that, if the plaintiff claims more that such fixed sum for costs the costs shall be ascertained in the ordinary Way.
(3) A decree passed under this ruler may be executed forthwith.
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 cis to payment into Court, giving security, framing and recording issues or 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).
6. The above quoted provisions of sub-rule (2) of Rule 2, provides that if a defendant fails to obtain leave to appear and defendant the suit, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree.
7. Learned counsel for petitioner argued that as the suit was not decreed on the date when petition for leave to appear and defend the suit, filed by defendant was dismissed, rather case was proceeded to record evidence of plaintiff, therefore, in such a situation when the court by itself has deviated from the laid down procedure, the defendant has a right to cross examine the witnesses of plaintiff. This Court is, however, not in agreement with the said argument of the learned counsel for petitioner for the reason that the above provision of Rule 2(2) of Order XXXVII though clearly provides for passing a decree and word "shall' has been used there; however, mere use of word "may' or "shall" is not conclusive and cannot be considered sufficient to presume that this provision is directory or mandatory. Also, there is no general rule to ascertain the nature of a particular provision of the statute, nevertheless, the nature of a provisions whether directory or mandatory can be ascertained through the intention of legislature and not by looking at the language, in which the provision is clothed, and to deduce the legislative intent, the Court has to examine the scheme of the statute, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other; the impact of other provisions whereby necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for contingency of the non-compliance with the provisions; the fact that the non-compliance with the provision is or is not consigned with some penalty; and the serious or the trivial consequences, that flow therefrom. Did the legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not?
8. In the present case the language of Rule 2(2) of Order XXXVII CPC reveals that the legislature has mentioned that upon failure of defendant in obtaining leave the allegations in the plaint 'shall' be deemed to be admitted, and the plaintiff 'shall' be entitled to a decree; and there is no restraint that the Court should not proceed with the trial for recording evidence of plaintiff. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview, but it does not follow that every departure from such law shall taint the proceedings with a fatal blemish. In the ibid Rule 2(2), the absence of provision for consequence in case of non-compliance with the procedure would indicate its directory nature despite use of word "shall" as, the word "shall" is not determinative of the fact whether this proviso is mandatory. Thus, fixing the case for plaintiff's evidence, instead of outright decree, does not make the trial redundant. Reliance in this regard is placed on the case of "Maulana Nur-ul-Haq vs. Ibrahim Khalil" (2010 SCMR 1305), it was held: "There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Rageeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v.
Mist. Surrya Begum (PLD 1978 SC (AJ&K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the Act being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards."
9. Similarly, in the case of "The Collector of Sales Tax, Gujranwala and others Vs. Messrs Super Asia Mohammad Din and SONS and others" (2017 SCM R 1427), the august Apex Court was pleased to hold:
6. The ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the legislative intent. While the use of the word 'shall' is not the sole factor which determines the mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent. Other factors include the presence of penal consequences in case of non- compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question. It is the duty of the Court to garner the real intent of the legislature as expressed in the law itself: Reference may be made to the cases of Syed Zia Haider Rizvi and others v. Deputy Commissioner of Wealth Tax, Lahore and others (2011 SCMR 420), In Re.
Presidential Election, 1974 (AIR 1974 SC 1682), Lachmi Narain vs. Union of India (AIR 1976 SC 714) and Dinesh Chandra Pandey v. High Court of Madhya Pradesh and another [(2010) 11 SCC 500].
10. In another case titled "The State through Regional Director ANF Vs. Imam Bakhsh and others"
(2018 SCMR 2039), the worthy Apex Court was pleased to observe: To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be clone and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even pails of a single provision or rule may be mandatory or directory.
"In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured."
Crawford opined that "as a general rule, [those provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory."
In view of the above, the argument of the learned counsel for petitioner regarding non-compliance of provisions of sub-rule (2) Rule 2 of the Order XXXVII CPC, as to passing a decree in favour of plaintiff upon failure of defendant to get the leave to appear and defend the suit, is directory in nature and there are no penal consequences, for non-compliance of the same, and for this reason, the court was having the power to opt for recording evidence of plaintiff in order to ascertain the veracity of his claim before passing a decree.
12. Now adverting to the merits of application of petitioner/defendant seeking permission to cross- examine the witnesses of plaintiff after the leave to appear and defend the suit has been denied to him. In his application defendant claimed that even though his defense may not be considered but he would have right to cross-examine the plaintiff or his witnesses and that right cannot be shut off and, therefore, the defendant applied to the Court to direct the plaintiff to put his witnesses in the box and allow the defendant to cross-examine them and then consider the matter on merits. In this respect suffice it to say that the provisions of Order XXXVII CPC, if considered in totality, it is clear that if the defendant fails to obtain leave to appear and defend, it will be treated that the defendant has no defense and that situation will have to be equated with a situation where the averments in the plaint are deemed to have been admitted. In substance, it will be deemed that the defendant has no defense and that the case of the plaintiff is required to be decided on merits as a whole and no further proof as expected under the Qanoon-e-Shahadat Order, 1984 is required to be placed by the plaintiff in order to prove his case keeping in view the terminology "the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree". In such view of the matter the case is no longer open to the petitioner as cross examining a witness really amounts to raising defenses by the petitioner even after he had failed to obtain orders granting leave to defend. The question of proof of admissibility of documents in a contested suit could have been raised by a party against whom such documents are attempted to be brought on record and used but, in view of the failure of defendant, who has been failed to obtain leave to contest, the contents of the plaint filed by the plaintiff must be deemed to have admitted.
13. In view of the discussion made above, it is held that in a summary suit where leave to defend is refused, the defendant would have no right to cross examine the plaintiffs witness, therefore, the order passed by the court below rejecting the application of the defendant to seek cross- examination of the plaintiffs witness, cannot be said to suffer from any legal infirmity and to that extent the impugned order passed by the court below is required to be affirmed
14. In the nutshell, impugned order of the learned court below is in accordance with law and there is no misreading or non-reading of the record or law on the subject, rather the same is well reasoned, therefore, upheld, and resultantly, this revision petition having no merit, stands dismissed with listed CMA.