This is a revision petition against order dated 26-2-1990 passed by a learned Additional District Judge whereby he declined to grant to the defendant-petitioner leave to defend the suit, filed against him for recovery of Rs. 2,50,000 under Rule 2 of Order XXXVII of the C.P.C.; for the reason of his inability to find any plausible defence set up in denying the execution of pronote and payment thereunder, as justifying the grant of desired leave and more so because there were no special circumstances set out for seggesting the possibility of the plaintiff being prompted to forge the pronote sued upon.
2. Reliance for the petitioner is placed on Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 to urge that since averments contained in the application for leave to defend the suit were duly supported by an affidavit, therefore, defendant was entitled to be granted the leave to defend the suit which may have been granted upon some terms but leave could not be straightaway refused to be granted. This contention appears to have merit because it is one of the fundamental laws that no one may be condemned I unheard and therein would also be envisaged the inherent right to defend a suit I so that such a right would not be liable to be negated by refusing to grant, may be on howsoever good a ground, the leave to defend the suit under the provisions of Rule 3 of Order XXXVII whereunder no warrant exists for countenancing such a consequence and the contemplation seems to merely be that weak or frivolous oppositions to seemingly unanswerable claims may get discouraged by conditions being imposed in the process of grant of leave. Hence, even if view reached by learned trial Judge, about the absence of, plausible defence, could be correct it would not thereupon follow that he got invested with even the power to completely shut-out defence of the suit on the defendant because in that process the suit could not become liable to 'be prejudged before the actual trial and all that he may have done in propriety was to have suitably conditioned the grant of leave with such terms as he may have deemed fit to be imposed in exercise of his judicial discretion.
3. In result of the foregoing, trial Court's order herein impugned happens to be the outcome of unlawful exercise of jurisdiction conferred by law or a product of exercise of jurisdiction not so conferred. It is set-aside to remit the suit to the Court below for the relevant application being decided afresh in accordance. With law by taking up the suit from the stage where it had reached on 26-2-1990.
4. This revision petition accordingly succeeds and is allowed as such by setting aside the trial Court's order dated 26-2-1990 in the terms herein before set out. Parties are left to bear their own costs hercof.
AA./N-34/L