RIAZ KAYANI, J.- Respondent-Ghulam Ghous instituted a suit . For recovery of Rs. 90,000/- before the learned District Judge, Faisalabad on the basis of a promissory note allegedly executed in his favour on 30.4.1994, by the appellant under Order XXXVII of the Civil Procedure Code.
2. Under Order XXXVII Rule 3 of C.P.C, the appellant submitted an application for leave to defend. In this application, the appellant denied having taken any amount as loan and stated that the suit was false. He prayed for permission to defend the suit. The respondent after taking some preliminary objections regarding the maintainability of the suit controverted the plea raised by the appellant in his application for leave to defend and re-iterated to have advanced the loan to the appellant through promissory note.
3. The learned Addl. District Judge on 8th October, 1995, fixed the date for arguments on the application of the appellant for leave to defend. On the said date at first call counsel for the appellant/defendant prayed for adjournment which was refused by the Trial Court on the ground that the suit was under Order XXXVII of C.P.C, and that the appellant/defendant has not denied his signatures on the promissory note, directed the counsel to appear at 2.30 p.m. To argue the case.
At 2.30 p.m, the case was called but the counsel for the appellant/defendant was not present.
Once again the case was called at 3 p.m. Still the counsel for the appellant was not present and finally at 3.30 p.m. The suit was decreed in the sum of Rs. 90.000/- after rejecting the application for leave to defend.
4. Learned counsel for the appellant contended that no proper opportunity was provided to him for arguing the application for leave to defend. It was the only time that he prayed for adjournment which was refused. The order of the Trial Court was not only harsh but passed in haste and that Order XXXVII CPC no where provides that the suit has to be decided within a time limit provided therein. Secondly it was argued that the learned Trial Court assumed on its on that the appellant had admitted his signature on the promissory note. On the contrary, it was argued that the denial of anyloan having been taken from the respondent amounted to denial of the execution of promissory note as well.
5. Learned counsel for the respondent, in reply stated that the execution of the promissory note is admitted, having not been specifically denied. The denial in the application for leave to defend, if any, was evasive and in these circumstances, the -application was rightly dismissed by the Trial Court. Learned counsel further pleaded that the conduct of the appellant and his counsel before the Trial Court was contumacious inasmuch as having been told to argue the case in the later part of the day, he did not care to appear to inform the Court about his inability to argue the application for leave to defend.
6. I have given my anxious considerations to the arguments advanced by both sides. The legal Maxim "law favours adjudication on merits" has not been followed in the present case. Order XXXVII rule 7 CPC provides the procedure in suits under Order XXXVII CPC to be the same as the procedure in suits instituted in the ordinary manner. The Trial Court was bit too harsh in disallowing the only request made for adjournment. It has been consistently held by the Superior Courts of the country that full opportunity should be granted to both the parties to fully present their cases. One single adjournment if granted would not have resulted in undue procrastination of the suit. I am fortified in my views by the following judgments:-
(1) Jameel Ahmed v. Late Saifuddin (1997 SCM R 260).
(2) Messrs Mushtaq Textile Mills Limited v. Karachi Metropolitan Corporation (1994 CLC 1516).
(3) Musa Khan v. Abdul Haq, (1993 S.C.M.R. 1304).
7. I, therefore, accept this appeal, set aside the judgment and decree dated 8.10.1995 passed by the learned Addl. District Judge, Faisalabad and remand the case to the trial Court for giving one more opportunity to the appellant to argue his application for leave to defend.