This R.FA. Arises out of a suit filed by Falak Sher respondent for the recovery of Rs.40,000 on a promissory note executed by the appellant on 27-9--1987.
2. The appellant got notice of the suit and entered appearance in the Court. He filed an application under sub-rule (2) of rule 2, Order XXXVII of the C.P.C. For permission to leave to defend. The Court dismissed the application on the ground that the same was not supported by any affidavit, hence the defence set up in the application was not prima facie supported. While dismissing the application for leave to defend, the Court proceeded to decree the suit forthwith holding that the averments of the plaint ought to be deemed to be admitted.
3. The learned counsel for the appellant contends that the affidavit was actually attached to the application but the same was somehow misplaced from the file. He placed photo copy of the affidavit bearing the same date which appeared on the application for leave to defend. It is not possible for this Court to ascertain as to whether any affidavit was originally filed alongwith the application for leave to defend or not. Suffice it to say that the application for leave to defend was filed on 17-10-1988 and the reply to the same was filed by the respondent on 30-10-1988. A specific objection was taken that no affidavit had been filed in support of the application for leave to defend. Thereafter, the case adjourned to 3-12-1988 for arguments. However, the appellant/defendant did not care to place the photo copy of the affidavit before the Court or to urge that any affidavit was filed earlier. The appellant did not choose to file a fresh affidavit either in support of the averments contained in the application for leave to defend. Under the circumstances the trial Court was justified to dismiss the application for leave to defend.
4. It was next contended by the learned counsel for the appellant that the trial Court erred in law in decreeing the suit under sub-rule (2) of rule 2, Order XXXVII of the C.P.C. According to the learned counsel the said sub-rule had no application in a case where application for (cave to defend was filed and rejected by the Court. It applied only in cases in which the defendant committed default in obtaining leave to defend or failed to appear and defend the suit. In such cases the allegations contained in the plaint could be deemed to be admitted, entitling the plaintiff to a decree in his favour. He placed reliance on Muhammad Yousuf v. Allah Yar PLD 1987 Lah.
101. On the other hand learned counsel for the respondents submitted that after refusing leave to appeal the Court was justified. In decreeing the suit without recording any evidence. He relied on the case of Bagh Ali v.
Habib Bank Ltd. PLD 1986 Lah. 124.
S. I have considered the contentions raised by the learned counsel for the parties. Sub-rule (2) of Rule 2, Order XXXVII of the C.P.C. Reads:- "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 herein after 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 bare reading of sub-rule (2) makes it clear that the same applies only in cases I where no application for leave to defend is filed or where the defendant commits default in his appearance and defence in pursuance of the leave to defend. In case the application for leave to defend is filed and the defendant also appears in the Court in pursuance thereof, the Court, after rejecting the application, cannot decree the suit, presuming the averments of the plaint to be true. In such a case the Court ought to record evidence of the plaintiff and pass a proper judgment under the law.
In the case of Muhammad Yusuf v. Allah Yar PLD 1987 Lah. 101 it was held:-- "It is clear that thereunder, the eventuality of straight away decreeing the suit can follow either upon the failure of the defendant to put in appearance or upon his omission to apply for grant of leave and defend the suit in pursuance thereof but not from the refusal by the Court to grant the leave, claimed by defendant. There is no provision for the refusal of grant of leave being equated with an admission of the suit to result in relieving the plaintiff of his normal obligations to prove his case. Furthermore, refusal to leave to defend the suit could not by itself have in law resulted in the outright passing of a decree against the defendant."
I am in respectful agreement with the view expressed in the case of "Muhammad Yousuf v. Allah Yar. In the case of Bagh Ali v. HBL PLD 198( Lah. 124 leave to defend was refused due. To absence of the affidavit and decree was passed in favour of the plaintiff under sub-rule (2) of rule 2, Order XXXV11, C.P.C. It is observed as under:-- "The application was not accompanied by affidavit which was required to be filed under sub-rule
(1) of rule 3 of Order XXXVII of the Code of Civil Procedure. Learned District Judge was, therefore, justified in not allowing leave to the appellant to defend the suit. It has been laid down in sub-rule
(2) of rule 2 of Order XXXVII of the said Code that if no leave is obtained, averments in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Since leave to defend the suit was not granted to the appellant, learned passed decree in favour of respondent No.1 (piaintiff) by taking allegations in the plaint as having been admitted:'
With due deference I am unable to agree with the view expressed in this case. The case in which there is default in riling an application for leave to defend or in B which there is default in defending the suit in pursuance of the leave to defend alone are contemplated under sub-rule (2) of rule 2, Order XXXVII of the C.P.C. Other cases in which an application for leave to defend has been filed and rejected are not covered by the said provision of the law.
6. In view of the above discussion, I accept appeal, set aside the decree passed by the trial Court and remand the case to the learned District Judge, Sahiwal, who shall record evidence of the respondent/plaintiff and then pass a proper judgment in accordance with the law. There shall be no order as to costs.