1. Orders on Pleading and 20th E&L. p. 352 ref.
(d) Civil Procedure Code (V et 110)- .-- O. XXXVII-Suit on originating summons-Quite different from suits on promissory notes-Forma, held, raises questions of law while latter seldom raise such questions-Petitioners summoned to appear under Form No. 4 of Appendix B of Civil Procedure Code, 1t, form thus issued could not be form of an originating summons prescribed in Form 11 of Appendix to Sind Chief Court Rules- Practice if any of serving defendants in a suit under O. XX X VII on an originating summons, held, not correct and to be discontinued.
(e) Sled Chief Court Rules --R. 22 read with Civil Procedure Code (V of 1908), O. XXXVII- Holder of Bill of Exchange-Must be able to obtain judgment as speedily as possible-Such being object of r. 22 suit fiat ordered to be beard as a short cause matter against both petitioners-Second petitioner obtaining permission under O.
2. XXXVII to defend suit on terms but obtaining order that suit against him could not be heard as a short cause matter by suppressing such fact, petitioner, held, could not be heard to object to order allowing his own application.
3. A. Aziz Khan. Advocate-on-Record and Abdul Latif A. Shakoor. Advocate for Petitioners.
4. Nemo for Respondent.
5. Dates of hearing : 18th and 24th January 1978.
6. DORAB PATEL, l.--The respondent which is a bank had lent money to the first petitioner against a Promissory Note. As she fouled to repay the amount due from her when called upon to do so, the respondent filed a lust in 1970 . In the Sind High Court under Order procedure Code for the recovery of the amount due to it, and the second petitioner was impleaded as a defendant in this suit, because he had guaranteed the loan advanced to the first petitioner. According to the petition for leave, the petitions were "issued originating summons in Form No, 4 (Appendix 'B' of the Civil Procedure Code)." As Form No. 4 is the form prescribed for suits filed under Order XXXVII of the Civil procedure Code, we are unable to understand how it can be described as an originating summons. Be this as it my according to paragraph 3 of the petition toe leave "both the petitioners appeared and filed an application under Order XXXVII, rule 3, C. P.C. For leave to defend, and the same was allowed by, tine Court by its order dated 29th November 1976.
7. Three weeks later the second petitioner heed a Review application for the review of this order of 29th November, 1976, and review was sought on tire ground that the second petitioner could not be sued under Older XXXVII, as he had only guaranteed the first petitioner's debt to the respondents and had not signed the promissory Note executed by the first petitioner, therefore. The prayer in the application was shat the suit should be treated as a long cause suit and not as a suit under Order XXXVII But the order granting leave amounted to a decision that the suit against the second petitioner also tell under Order XXXVII and as the decision had been obtained by the second petitioner on his own application, the question was whether be could be permitted to challenge that decision after having elected to defend the suit against him under Order XXXVII This aspect of the case escaped the attention of the learned Single Judge because the second petitioner stated in his application that it was the Am petitioner who had applied for leave to defend which was granted by this Honourable Court .." and deliberately suppressed the fact that he bad himself been a party to this application under Order XXXVI1. In these circumstances, the learned Single Judge reviewed his order granting leave only against second petitioner. He directed that the suit against the second petitioner should be heard as a long cam suit and that the suit against the first petitioner should be treated as a short cause matter, but he gave this petitioner another two months time to furnish security. This was by an order dated 21-2-1977.
8. The petitioners then filed a third application which farther delayed the hearing of the suit against them. The application was filed under 222 of the Sind Chief Court Rules(Original Side) (thereinafter called the Chief Court Rules) and it contained two prayers. The first was that the respon--dent's suit should be dismissed "on the ground that (it) is not covered by rule 227 of the Sind Chief Court Rules (O. S.) as defendant No. 2 has been joined as a guarantor'". The other prayer in the application was that in the alternative the suit should be treated as a long cause matter, but as this prayer had been raised by the second petitioner in his review application and had bean rejected by the learned Single Judge by his order dated 21.2-1977, the pies taken by the petitioners was that the view taken by the learned Single Judge in his order of 21-2-1977 was contrary to the view taken by him a few years earlier in Suit No. 457/1972 of the High Court, Satndard Bank Ltd. v.
9. Gulberg Textile Mills Ltd. Said others, and it Is relevant to observe here that the view taken by the learned Single Judge in the Stand Bank---s Case had been upheld in an appeal by a Division Bench of the High Court.
10. The petitioners challenged this order in an appeal in the High Court, which came up for admission on 30 &1977 before a Division Beach of the High Court. As the learned Judges of the Division Bench agreed with the view that the issue raised in the application of the petitioners was the same as that in the review application, they observed that the learned Single Judge had "rightly held that s fresh application was barter and dismissed the appeal in limine. France this petition for leave.
11. As the prayer for treating the suit against the first petitioner as a long cause matter had been rejected on 21-2-1977, the attempt to raise this plea again by filing an application under a different provision of law was barred by the principle of resjudicata and on the footing that the order of the learned Single Judge dated 21-2-1977 was contrary to a judgment given by hi a earlier and also contrary to the judgment of a Division Bomb of the High Court, the only remedy of the petitioners was to challenge this seder of 21-2-1977 in an appeal or in a Review application. Now the learned Single Judge as well as the learned Judges of the Division Bench who dismissed in limine the appeal of the petitioners pointed oat that the petitioner were trying to obtain a review of the order of 21-2-1977: That la correct. But with respect, the application had been filed within the period prescribed is Article 162 of the First Schedule of the Limitation Act, and there is authority for the proposition that a .4 judgment by a High Court can be reviewed if it is contrary to the la declared in an earlier pronouncement of the Court. Therefore, we are disturbed by the submission that the orders passed by the learned Single Judges on 21-2-1977 and on 16.5-1977 were contrary to the judgments pronounced earlier is the Standard Banks case, and eve had directed the learned counsel to file copies of those judgments as they had not been reported.
12. Learned counsel has filed copies -if these judgments and although the facts an not clear from the judgments, on the whole, it would appear that Standard Bank had filed three suits against the defendants for the recovery of loans advanced by it to the lit defendant ii! These suits. These loans were secured by a promissory note or notes executed by the first defendant and by a mortgage of its properties, and were also guaranteed by the other defendants. As the Standard Bank was suing on a mortgage, it lead filed the suit under Order XXXIV of the Civil procedure Code (hereinafter called the Code) read with rule 227 of the Chief Court Rules, and we may pause to explain here that this Rule is to be found in Chapter XVI of the Chief Court Rules. The Chapter deals with the procedure for filing suits on an originating summons, a procedure which has been borrowed, like Order XXXVII of the Code, from the rules of the English Supreme Court, and rule 227 as well as the roles 227, 225 and, 26 specify the types of suits which can be filed on an originating summons, whilst the form of such a summons is prescribed in Appendix A of the Chief Court Rules. As the suits against the first defendant fell under rule 227 this defendant was served by an originating summons. Unfortunately so were the other defendants in one of the suits, therefore, they submitted an application under rule 239 that the suits should be treated as long cause matters or dismissed In order to enable the plaintiff to re-file them as ordinary suits And as the learned Judge directed that the suits should be heard against all the defendants as long cause matters the submission was that be should have followed the game Rule in the Instant case also, because only one of she two defendants in the instant case had executed a promissory note.
13. Tie argument is misconceived and is based on a total misconception of what a short cause matter is and perhaps the misconception has arisen because short cause matters are dealt with in only three Rules of the Chief Court Rules. These Rules are 21 to 23 and they read "21. Short causes shall be set down for final disposal man ouch day as the Judge sitting on the Original Side shall appoint.
22. The following suits or matters shall be deemed to be short causes
(1) ex paste suits ;
(2) undefended suits;
(3) suits in which written statements filed disclose no defence ;
(4) suits under Order XXXVII (in which leave to defend has been granted) ;
(S) mortgage cults. Rent suits, suits on bonds or acknowledgments ;
(6) objections to Commissioner's report;
(7) such other suits or matters as may, by special order of the Judge. Be directed to be tried as short-causes;.
14. Any other suit or matter shall be deemed to be a long cause.
23. Any short cause which the Judge before whom it is set down for final disposal does not think fit to try as a short-cause. May be transferred to the long cause list,"
15. The Rules do not prescribe in terms the procedure to be followed in suit "set down for teal disposal" as a short cause matter but this main advantage to the litigant 1s that a suit fixed as a short cause matter would be disposed of expeditiously. It is true that the procedure fort discovery is frequently dispensed with. That, however, is a matter within O the discretion of the Judge, who must however set down the case for final disposal on a teed date as soon as the prayer for treating the matter its a short cause Is allowed. This is because such matters can or should by disposed of expeditiously.
16. And, for example--- suits under Order XXXVII should be disposed of expeditiously even if they cannot be disposed of expeditiously. And for example, exparte suits and undefended sulks can obviously be disposed of expeditiously. On the other hand waits filed on an originating summons are in a class by themselves. .As pointed cut by Orders in his "pleading and Practice". 20th Edn., page 352, a suit is filed on an originating summons when :- " . . , the main point at issue is one of construction of 4 document or statute, or is one of pure law . . . . . It Is not however, appropriate where there is likely to be arty substantial dispute of fact It is also inappropriate if the plaintiff think that the action one in which summary judgment cart be obtained.", As all the t of salts listed n Chapter XVI are not such as can be disposed on question of law only, the rule makes have in clause 5 of rule 22 specified the suits which in their assessment cold be disposed of expeditiously. But the Judge has ample power under clause 7 of the Rule to fix any suit including a Basic on originating summons of a short cause matter. Further, the power conferred by this clause is very wide and extends not only to "suits", butt also to matters. The word matters has been used deliberately and means something other than ---suite". At the word has been used to enlarge the power conferred on the Judge under time Rule to prevent dilatory tactics, the word must be given a laal coat don, and, it would cover the case of a suit in which a cause of action does not fall In terms under clauses 4 and 5 of the rules whilst the other cause or causes of action in the suit fall In terns under 411016 C 19810L for example, instead of transferring the Standard Bank-- -s suit or suits to the long cause list, the learned Judge could instead have directed in the exercise of his powers under clime 7 of the mule that the shat or stets should be heard against all the defendants as shoal cater matters. The question is of the facts and circumstance of each case, and as the orders of the learned Judge and of the appellant Reach do- not gave any particulars of the nature of the Standard Bank's claim on its mortgage, we hate assume that the claim was of a type lively to involve substantial disputes of fact, therefore, the proper course was to transfer the case to the long cause list. And, this means that the decision turned on the peculiar facts of the case and were not intended to create a presedent.
17. It is also relevant to emphasize here that the suit in the instant is on a promissory rote, unlike the -- vits of the Standard bank, and the procedure suitable for disposing of 4 suit on an originating summon may not be proper for a suit under Order XXXVII. It was en order it, meet this difficulty the learned count submitted that the petitioners had been served on an originating summons. We find it difficult to under stand this statement and we would not even have adverted to it but, learned counsel states that the manner is which the petitioner had been served was in accordance with the practice of the Court. We were astonished to hear this plea, and as the question is of the practice of the Court, we would clarify that suite. On art originating summons are suite different from those on promissory notes. The former raise questions of law, whilst the latter reldom Mae such question. And It Is for this n that the force prescribed by the Chief Court Rules for an originate summons inform ms the defendant that he has to attend the Court fear the determination of the question act out in the summon, and he is further warred tee .Rent "a written statement of your defense. But. Unlike this form, Foam No. 4 of Appendix B of the Civil Procedure Code (which prescribes the form for a suit under Order XXXVII) read: ---------.Whereas has instituted against you under order xxxvii you are hereby summoned to obtain leave from the Court within ten days from the service thereof to appear and defend the suit in default whereof the plainatiff will be entitled to obtain a decree------.
18. We have referred to these forms because of the express averment in the petition for leave that the petitioners were issued originating summons in Form 4 of Appendix. B of the Civil Procedure Code.
19. As the petitioner were summoned to appear under Form No. 4, the form thus issued to them could not be the form of art originating summons as prescribed the Form No. 11 of the Appendix to the Chief Court Rules, sad further, !f the be any practice of serving defendants In a suit under Order XRVII on an originating, summons, this practice is not correct and should he discontinued.
20. Learned counsel's only other submission was that the suit against the petitioners had been split up by the order of 21-2-1970 with the result that it would be heard as a short cause matter against the first petitioner, an as a long cause matter against the second petitioner, therefore this would Wad to injustice and a duplication of proceedings. The argument fallacious, because it is of great importance to the public that the holder o a Bill of Exchange should be able to obtain judgment for what is due t him as speedily as possible. That is one of the objects of rule 22, and that is why she suit was first ordered to be heard as a short cause matter against both the petitioners. But after obtaining leave to defend the suit a a short cause matter, the second petitioners had filed an application that the suit could not W heard against him as a short cause matter and t application was allowed, because he bad suppressed the fact that he h himself obtained permission under Order XXXVII to defend the suit on terms. We are, therefore, very poorly impressed by his conduct, and he cannot be heard to object to the order allowing his own application. It is true that the otter petitioner was conveniently not made a party to this application, but even if we assume that she was not aware of the success with which the second petitioner was delaying the hearing of the suit, the learned Judge. Who dismissed the third application of the petitioner has pointed out in his order of 16-5-1977 that as the first petitioner had not complied wit the terms of the order granting her leave to defend' " . . . . The suit is liable to be decreed against (her). Office will put up the case in the ordinary course for this purpose." In these circumstances, any objection on her part to the impugned orders has become an exercise in futility.
21. The petition is without merit and is dismissed.