JUDGMENT MIAN GHULAM AHMAD, J.-- By this judgment I propose to dispose of RFAs No.I68 to 171 of 1989, involving identical facts and legal propositions, parties to the litigation also being exactly the same.
2. Mohammad Yousaf appellant, first cousin of Abdul Majeed respondent, had borrowed from the latter different amounts as-qane-hasna\ and had executed promissory notes and receipts in that regard. When he did not return the amount, despite demands, he was sued by the creditor under Order 37 CPC. Suits were decreed by Mr.Mohammad Munir, Addl. District Judge, Lahore, on 28-6-89.
Applications under Order 37 rule 4, read with section 151, CPC were submitted by Mohammad Yousaf judgment-debtor on 3-7-89, and the same were dismissed on 7-10-89. The judgment- debtor has approached this court in appeal, seeking to set aside the decrees aforesaid.
3. It is indeed amusing to hear the learned counsel for the appellant arguing that the special provisions of Order 37 CPC are of discriminatory character, harsh and cruel in nature and intent, and are un-islamic indeed. By saying so, the learned counsel probably means to maintain that if a person, who has met the monitoiy need of another, by advancing loan, makes a demand for return of the loan money, and the latter chooses not to discharge his liability, it will be the right course, ordained or permitted by Sharia, wholly lawful on the part of the borrower, whereas in doing so the creditor would be following an un-usual, in-equitable and callous course, and that, the only alternative left, -in such eventuality, is that he should forget about his money and leave it to the discretion and sweet will of the debtor to make payment, as and when he likes to do so, and in the manner that suits him. What an argument? Object or spirit erf Order 37 CPC is to provide a procedure or mechanism of summary character in order to enable a creditor to make recovery of his loan amount in a quicker way and to prevent the debtor from employing delaying designs, with a view to frustrate the genuine efforts of the money-lender made to realize his hard-earned money. There is nothing un-1 slamic or even in-equitable about it.
4. These cases furnish very bad instances of how the debtor tries to circumvent the lawful process of recovery. Summonses in prescribed form issued to Mohammad Yousaf defendant through ordinary means on 6-6-89 could not be served on him. However the summonses addressed by registered post were received by him on 7-6-89, and he made appearance in the court on the next date of hearing i.e. 22-6-89. The cases were adjourned to 28-6-89, when the defendant did not turn up and instead his brother Mohammad Khalil attended the court and made a request in writing for an adjournment, staling that the defendant had been suffering from some serious disease over several days last and the same had prevented him from making personal appearance. It is interesting to note that the defendant had appeared in person in the court less than a week before, on 22-6-89. The court proceeded to pass the decrees ex-parte against the defendant on the same day i.e. On 28-6-89.
5. Mohammad Khalil, who claimed to be the real brother of Mohammad Yousaf defendant, had no power of attomey with him, and by then the defendant probably had also engaged no counsel, otherwise some learned Advocate would have represented him. No application for leave to defend the suit was submitted either; and the court proceeded to decree the suits, observing that there was no other option left with the court. It would be realised that the court had done so in an absolutely lawful manner, as contemplated by Order 37, rule 2(2), CPC.
6. The judgment-debtor then appeared to have made a 'rapid recovery' (from his severe illness).
By coming to the court and engaging a counsel, he made the application on 3-7-89 under Order 37 rule 4 CPC, with the prayer that the decrees awarded against him be set aside. He took up the plea that he could not appear in the court on 28-6-1989 by reason of his indisposition and that the plea had not been dealt with in the orders dated 28-6-1989. It was also pointed out that although it was a claim in the amount of Rs. 15,625/-, the sum stated in the summons was Rs.12,625/- and further that copy of the plaint did not accompany the summons. His right to ask for leave to defend would accrue to him, on becoming aware of the nature of the claim, as incorporated in the plaint, it was maintained. Suit was stated to be time-barred, and based on a promote, invalid and inadmissible in evidence. He denied having received any amount as loan from the plaintiff.
7. The minor discrepancy in the amount as claimed, and as stated in the summons, however was obviously due to slip of pen or clerical error and would not have made any material difference. Did the defendant express readiness to pay Rs/12625/- instead of Rs. 15625/-, as claimed in each suit?
It was open to the defendant to have made a request for supply of a copy of the plaint, when he had appeared in the court for the first time on 22-6-89; but he did not make such a request, and from that it would follow that he had in fact been in receipt of a copy of the plaint and the excuse subsequently put forth had no basis.
8. He was served alright on 7-6-89 and should have, if so advised, made an application for leave to defend, under Order 37, rule 3, CPC. The court could grant or refuse such leave, but the same should have been sought within ten days of service. In the event of failure on the part of the defendant to make such an application, or in case of refusal of such request, the court could summarily decree the suit, and for the purpose the averments incorporated in the plaint were to be deemed to have been admitted by the defendant. Since the defendant had himself defaulted in not seeking leave to defend within the prescribed period, the court Was wholly justified to decree the suit against him, on 28-6-89. The learned court below has observed, and rightly so, that the defendant, in the circumstances of the case, was estopped from subsequently saying that he had not properly been served, inasmuch as no copy of the plaint was annexed with the. Summons, as was averred later. Rule 4 of Order 37 envisages that in special circumstances a decree awarded under Order 37 rule 2 may be set aside and the defendant be permitted to appear and defend the suit, if it seems reasonable to the court to do so, and on such terms, as the court thinks fit.
9. It has been pronounced in PLD 1984 Karachi 127 (Allied Bank of Pakistan Ltd. V. V-CJChilnani and others1 that the words 'special circumstances*, occurring in rule 4, would not connote 'ordinary circumstances' or events of routine but would indicate circumstances which me un-common, rare and exceptional, and a heavy burden would therefore lie on the defendant too establish existence of such circumstances, on account of which he had earlier been unable to fulfil the conditions, or act in accordance with the manner provided in these provisions. An ex-parte decree may be set aside, if the defendant /judgment- debtor is able to show sufficient cause, as contemplated by Order 9, rule 13, CPC, but the two eventualities are distinguishable. The phrase 'special circumstances' used in Order 37 rule 4 CPC has a narrower scope a specified sphere, and it would not be lawful on the part of the court to readily accede to request of the judgment-debtor and proceed to set aside the decree delivered under Order 37, in routine, as is done ordinary circumstances. Such special circumstances, it would not be denied, had no existence, so that the decrees passed in favour of the plaintiff were not liable to be nullified, as provided by rule 4. The learned Addl. District Judge thus had taken a correct view of the matter, in rejecting the judgment- debtor's prayer made in that behalf.
10. If the promissory note and the receipt suffer from any technical defect, as lack of crossing of the adhesive stamps, the same could be considered, if the defendant had been permitted to participate in the proceedings, and raise such objections. This is the law, as has also been enunciated in the aforementioned authority, as also in NLR 1992 Civil 651, Emirates BankInternational Ltd. V. M/s Larkana Woolen Mills Ltd, etc. The court is empowered to decree such a suit, taking averments embodied in the plaint to be uncontroverted, in the event of failure of the defendant to appear or his making a default in applying in time for leave to defend. These provisions are intended to secure ends of justice, in claims based on negotiable instruments, to prove even consideration of which the plaintiff would be under no obligation, in case execution thereof is not denied.
11. In view of the foregoing discussion it would appear that the learned lower court had awarded the decrees on 28-6-89 and rejected the judgment- debtor's applications made under rule 4 of Order 37 CPC on 7-10-89, in a lawful, proper and just manner, warranting no interference by this court.
The appeals have no merit and are hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.