' This regular first appeal under section 96 of the Code of Civil Procedure was directed against the judgment and decree, dated 12-11-1989 whereby the learned Additional District Judge, after disallowing the application for permission to defend the suit decreed the suit filed under Order XXXVII of the Code of Civil Procedure.
2. The respondent, despite service, has not chosen to appear and defend the appeal. The respondent-plaintiff is, therefore, proceeded against ex parte.
3. I have heard the learned counsel for the appellant and have also gone through the record. The suit was based on a pro-note dated 4-4-1981. The suit was initially filed before the learned Civil Judge who dismissed the same on merits vide judgment dated 16-5-1987. On appeal the order was set aside after recording the finding that the suit under Order XXXVII, C.P.C. Did not lie before the learned Civil Judge and the same should have been filed in the Court of the District Judge. The plaint was thus ordered to be returned.
4. Thereafter the suit was filed in the Court of the learned District Judge, Lahore, on 8-5-1988. The appellant-defendant was summoned who filed an application for permission to defend the suit on the ground that the alleged pro-note is forged, fabricated, false and without consideration and that the said pro-note is otherwise inadmissible as it had never been presented to the defendant.
The application seeking permission to defend the suit was, however, dismissed observing that the defendant-appellant had failed to raise any substantial question of law and fact and that the defence set up was illusory. The learned Additional District Judge, however, failed to notice that the question of presentment was raised which was a substantial question. The other question which also required consideration was whether the suit as filed on 8-5-1988 on the basis of the pro-note dated 4-4-1981 was within time. The failure to notice these questions renders the impugned order dated 12-11-1989 refusing permission as arbitrary and illegal.
5. In view of the above the judgment and decree passed by the District Judge cannot be sustained.
The same are hereby set aside. The application to defend the suit is allowed and the suit is remanded to the learned District Judge for trial in accordance with law. The appeal thus succeeds.
There shall, however, be no order as to costs as the respondent-plaintiff has not appeared to contest the appeal.