Let it be considered as admitted case.
2. Brief facts of the instant appeal are that a suit for recovery of Rs,50,000 on the basis of promissory note was filed under order 37, C.P.C. Before the learned District judge, which was entrusted to the learned Additional District Judge, Kaloorkot District, Bhakkar. The notice of the same was sent through registered post on 18-12-1994 for 21-12-1994. The appellant appeared before the learned Additional District Judge, Kaloorkot, his appearance was marked by the court obtaining thumb impression on the order-sheet noting the National Identity Card number and the case was fixed for 5-1-1995. The appellant filed an application for grant of have to defend on 5-1- 1995 along with an affidavit explaining the facts. He also filed a written statement on 8-1-1995 which was received by the Court. This application was plied by the respondent/plaintiff. The application for leave to defend was dismissed being barred by time and the suit was ultimately decreed on the basis of promissory note without recording any evidence with the direction that promissory note be impounded with penalty of Rs,90 to be paid within 20 days of passing of decree, dated 30 1-1995 as e same was not duly stamped. The judgment and decree and also rejection of application for leave to defend are under challenge in the instant Regular First Appeal.
3. Learned counsel for the appellant has submitted that the promissory note was not duly stamped. The learned Additional District Judge could neither admit the same as evidence nor it was admissible under section 35 of the Stamp Act. He has relied on "United Bank Ltd. v. Mian Abdul Khaliq" (PLD 1988 Lahore 225), "United Bank Ltd. v. 'Muhammad Khan and another" (PLD 1988 Lahore 424) and "Mirza Arif Baig v. Mubarik Ali" (PLD 1992 Lahore 366). Further submitted that application for leave to appear and defend could not be rejected being barred by time as in the present circumstances of the case Court allowed the appellant to appear on 21-12-1994 marking his presence, adjourned the case to 5-1-1995 for further proceedings and the appellant was under the impression that he was allowed to defend the suit. The Civil Courts remained closed for vacations from 24-12-1994 to 1-1-1995.
4. Learned counsel for the appellant was under the impression that the time of vacation was to be excluded. The Presiding Officer did not hold Court on 2-1-1995. 4-1-1995 and 5-1-1995 being on tour to Mianwali. The written reply was entertained on 8-1-1995 and the appellant was under a strong impression that the Court has impliedly granted the leave to defend, therefore, he did not move an application for condonation of delay. Further submitted that grant of leave to defend is discretionary and the appellant was entitled to leave to defend. He was condemned un-heard by act of the Court. That the impounding of the promissory note and the procedure adopted by the learned trial Court is not warranted by law as the promissory note was not duly stamped. Any promissory note which is not duly stamped is hit by section 35 of the Stamp Act, and is excluded to be promissory note and such a promissory note is not legally admitted in evidence. That the decree is liable to be set aside as the appellant was mis-led by an act of Court and condonation can be granted. 'Relied on "Mirza Arif Baig v. Mubarik Ali" (PLD 1992 Lahore 366) and "Nazar Muhammad and another v. Mst. Shahzada Begum and another" (PLD 1974 SC 22).
5. Learned counsel for the respondent submitted that the proceedings under Order 37, C.P.C. Are summary in nature. Notice issued to the defendant under Order 37, C.P.C. Itself contends that the defendant has to apply for leave to appear and defend within ten days of service of notice, therefore, the contention of appellant that he appeared before the learned trial Court and his presence was marked is meaningless. He was supposed to give an application to appear and defend the suit on the day when he appeared in the Court. The proceedings under Order 37, C.P.C.
Being summary in nature, if the defendant omits to give an application within stipulated time of ten days from the service of notice, he cannot file the condonation application.
6. I have heard the learned counsel for the parties and perused the record. A suit for recovery of Rs,50,000 on the basis of promissory note, dated 1-11-1993 was filed on 28-11-1994. On 5-12-1994 the following order was recorded:- {{URDU TEXT}} On 21-12-1994 it was recorded:- {{URDU TEXT}} On the right side is National Identity Card No,241-85-076497 and then the thumb marid On 5-1- 1995, the application to defend was filed the Court is on leave to attend meeting, to the case is adjourned to 8-1-1999 On 8-1-1995, it was adjourned to 24-1-1999 on that date reply was filed and after part argued the case was adjourned to 29-1-1 for further arguments. On that date it w again adjourned to 30-1-1995. On 30-1-199 the application for leave to defend with rejected and the plaint was decreed and promissory note was directed to the impounded after payment of Rs,90 as penal within 20 days and the record was filed and thereupon through detailed judgment and decree, dated 30-1-1995 the application for leave to defend was dismissed and suit was decreed. It is very surprising that the learned Court was very much within the knowledge that defendant could not appear before the Court without applying for leave to appeal and leave to defend the suit. His presence was marked on 21-12-1994 and the case was fixed for hearing on 5-1-1995 and in between 21-12-1994, when defendants' presence marked by the Court on record and 5-1-1995 when he applied for leave to defend, the winter vacations commenced. It is again very surprising that the written statement is to the record and it is countersigned by the Additional District Judge, Kaloorkot 8-1-1995. Submission of written statement not mentioned in order, dated 8-1-1995 be on the written statement it is written " for Additional District Judge, Kaloorkot" the initials and date i,e, 8-1-1995.
7. Order 37, Rule 3, C.P.C. Reproduced:-- "Defendant showing defence merits to have leave to appear:--
(i) The Court shall, upon application the defendant give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(ii) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit."
Pretention of the provision under Order 37, C.P.C. Is that it is mandatory for the trial Court to allow the defendant to appear and the defend the suit through an application. When the defendant appeared before the trial Court after service of summons, the Court could refuse his appearance directing him to file an application for leave to appear and defend the quit. The Court recorded his appearance and impliedly gave him a right to appear and defend the suit which is not the requirement of law.
8. I have seen the record of the case. After the appearance of the defendant the case as fixed for 5-1-1995 and even on 8-1-1995 an application {{URDU TEXT}} This application is accompanied by an affidavit stating the fact that plaintiff has concealed the facts that defendant was promised to many the daughter of Rabnawaz and in exchange of the son of Rabnawaz to many the real niece of defendant. The relationship between the spouses became strained and reached to the extent of divorce and he was compelled to sign on a blank paper just to save the divorce. Leave to defend was refused vide order, dated 30-1-1995 simultaneously the written statement was entertained on 8-1-1995. The suit was decreed on the basis of promissory note. This is a mockery of law.
9. It is crystal clear from the record that petitioner defendant suffered from an act of Court who committed a gross material illegality. The order, dated 21-12-1994 allowing the appearance of the defendant is a clear indication to the defendant that the Court has impliedly given him a right to appear and defend the suit. Even submission of written statement is also a proof. A party cannot suffer from act of Court, therefore, I accept this appeal, set aside the judgment and decree passed by the trial Court which to my mind is full of legal infirmities and material irregularities committed by the learned trial Court while proceeding with the present case and direct the trial Court to decide the suit on merits after reconsidering the petition leave to appear and defend in view of its own order, dated 21-12-1994 and decide the case on merits, within two months from appearance of parties.
10. Parties are directed to appear before the learned District Judge, Bhakkar on 23-6-1999.