' This is an appeal against the judgment and decree dated 27-14990 whereby the learned Additional District Judge-I, Okara, decreed the respondent's suit wider Order XXXVII, C.P.C. For the recovery of Rs,24,000 against the appellant.
2. The relevant facts which gave rise to the present appeal are that on 5-6-1989 Sardar Ali respondent instituted a suit against the appellant for the recovery of Rs,24,000 on the basis of a promissory note dated 10-1-1989 in the Civil Court at Dipalpur, District Okara. On 11-7-1989 the learned Civil. Judge, who was seized of the matter, held that the suit was exclusively triable by the learned District Judge, Okara under Order XXXVII, rule 1 and 2, C.P.C. Consequently, the plaint was returned to the respondent for presentation before the Court of competent jurisdiction. Instead of filing the plaint which had been returned to him the respondent instituted a fresh suit under Order XXXVII, C.P.C. On 20-7-1989 in the District Court, Okara. It appears that the appellant appeared before the learned Additional District Judge, sought permission to defend the suit which was granted to him and filed written statement. Subsequently on 27-11-1989 the suit was withdrawn and the respondent was allowed to present the original plaint which had been returned to him by the learned Civil Judge, Dipalpur. On the same day the said plaint was presented before the learned District Judge, Okara who again entrusted it to the same learned Additional District Judge for disposal. The appellant again applied for permission to defend the suit alleging that the promissory note in question was fake and fictitious, that it was without consideration and that he had not thumb marked it. On 27-1-1990 better statement of the appellant was recorded which is as under:-- {{URDU TEXT}} ' In view of the above statement, which was found to be in conflict with the contents of the appellant's application, on the same day, vide the impugned order the learned trial Court refused to grant leave to the appellant to defend the suit. Thereafter, on the same day through a separate order the respondent's suit was decreed against the appellant. Feeling aggrieved the appellant has come up in appeal.
3. The respondent appeared in this Court on 21-5-1990 through his counsel Mr. Noor. Hussain Tahir, Advocate. Today neither he nor his counsel is present although the appeal was called on for hearing on more than three occasions. The respondent, therefore, is proceeded against ex parte.
4. I have heard the learned counsel for the appellant and have also gone through the record.
5. Admittedly the appellant had moved application for the grant of leave to defend the suit within the prescribed time. In the said application the appellant had specifically stated that the promissory note in question was without consideration and was fake and fictitious. Learned counsel maintained that on a similar application in the previous suit instituted by the respondent on 27-11-1989 the appellant had been granted the requisite leave to defend the suit in pursuance of which he had filed his written statement. This fact is asserted in para No,4 of the memorandum of appeal in support of which learned counsel for the appellant has filed his own affidavit. In these circumstances when previously with regard to the same controversy the appellant had been allowed to defend the suit, subsequent refusal by the Court to grant such leave to him, appears to be not in accordance with the rule of consistency and the principles of fair administration of justice.
If there was any discrepancy between the better statement of the appellant and his averments in the application for the grant of leave to defend the suit, the appellant should have been given a chance to give his explanation. In these circumstances when the appeal is not being contested by the respondent I hold that the appellant was entitled to the grant of leave to defend the respondent's suit and the said suit could not be decreed against him without C affording him such opportunity. I accordingly accept this appeal and set aside the impugned order, judgment and decree dated 27-1-1990. The case is remanded to the learned trial Court with the direction to decide the suit on merits after giving' an opportunity to the appellant to file his written statement subject to the furnishing of adequate security.