Attaullah Khan respondent/plaintiff on 4-1-2002 filed suit under Order 37, C.P.C. For recovery of Rs,8,40,000 along with interest at the rate of Rs,15% in the Court of learned District Judge, Peshawar against the appellant/defendant, who on receipt of summons appeared on 29-1-2002 and submitted application for grant of leave to defend the suit, but his application was dismissed and decree for recovery of the claimed amount was passed vide judgment and decree dated 30-11- 2002. Feeling aggrieved with the said judgment and decree, the appellant has filed the appeal in hand.
2. Mr. Muaazam Butt, the learned counsel for the appellant argued that the appellant namely Abdul Karim was owner of Plot No,48 situated at Sector L-1, Hayat Abad, Peshawar, which was fraudulently got transferred by the respondent/plaintiff in the name of his daughter through his son-in-law.
When the appellant came to know about the fraud, he wanted to register a case against the respondents, but his other sons prevailed upon him hence he did not register any case. However, the said plot was re-transferred by the daughter of the respondent/plaintiff in the name of the wife of appellant.
3. It was also argued that the respondent did not bother to submit reply of application for grant of leave to defend the suit. He, however, on 12-2-2002 moved an application for dismissal of applications for grant of leave to defend the suit being barred by time. The said application was resisted by the appellant by filing written reply. The respondent/plaintiff submitted yet another application on 20-5-2002 for summoning Bailiff, who had effected service. The learned trial Court did not bother to ask for submission of reply of said application and summoned the Bailiff, examined him on 6-6-2002. Thereafter, the appellant was directed to submit his reply which was duly submitted on 13-6-2002 and the Bailiff was cross-examined by the appellant's counsel on 24- 7-2002. The application for grant of leave to defend the suit was within time, but the Court below failed to appreciate the same.
4. It was also argued that in the earlier application filed by the respondent on 12-2-2002 for dismissal of application for leave to defend the suit no allegation for tampering with the record of the case was made. It was, however, as an afterthought that in application dated 20-5-2002 bald allegations against the counsel for the appellant were levelled.
5. It was further argued that no doubt the Court could summon any witness under Order 16, Rule 14, C.P.C. If the Court deems it appropriate, then in such a case the statement of such a witness should have been recorded by the Court itself and both the parties allowed to cross-examine the said witness, but in the case in hand the Examination-in-chief of the Bailiff was recorded by the respondent/plaintiff himself, the appellant cross-examined the said witness under the impression that since the examination-in-chief has been recorded by the plaintiff, therefore, he would not cross-examine the witness after the cross-examination by the appellant was complete, the plaintiff insisted for cross-examination which was allowed by the learned trial Court against the provisions of law, hence prejudice was caused to the appellant. Moreover, the appellant was not allowed to record his statement in rebuttal, which too was against the norms of justice. --The learned Court should have framed preliminary issue as to whether the application of appellant was within time or not.
6. On the other hand Mr. Abdul Sattar Khan, the learned counsel representing respondent/plaintiff argued that when application for dismissal of application for leave to defend was filed on 12-2- 2002, there was no tampering made in the record, but the moment the respondent/plaintiff came to know about the tampering made in the record, he filed another application on 20-5-2002, in paragraph 6 of which he mentioned the facts about the addition made and tampering done.
7. It was also argued that when the examination-in-chief of the Bailiff was recorded on 6-6-2002, the learned counsel for the appellant/defendant was very much present in the Court and he had raised objection to the admissibility of summons also. His presence has also been marked in the order-sheet dated 6-6-2002.
8. It was further argued that Bailiff was summoned as Court-witness was in fact examined by Court itself. He was narrating his statement in Urdu which was translated into English by the counsel for respondent/plaintiff. The documents were also exhibited by the Court itself. The respondent/plaintiff had right to cross-examine the said witness and there under which it can be said that first the learned counsel should have cross-examined him and then the witness should have been cross-examined by the appellant/defendant's counsel. The learned counsel for the appellant had even not taken up this objection that the Court-witness be cross-examined first by the learned counsel for the respondent/plaintiff, therefore, no prejudice has been caused to the appellant.
9. It was also argued that the Bailiff of the Court (C.W.1) had categorically stated that he had effected service of the learned counsel for the appellant on 16-1-2002 and that the notice has been marked to him by the Civil Nazir and that there was only one signature put by the learned counsel for the appellant at the back of the summons and when he submitted the report, a second signature of the learned counsel for the appellant and date thereon was not available. Therefore, the matter became clear that the defendant had been served through his counsel on 16-1-2002. No suggestion whatsoever was put to the witness that the service of the learned counsel for the appellant was effected on 12-2-2002. The signatures of the learned counsel were made in blue ink whereas date was put in black ink. Moreover, the appellant/defendant did not mention any date of service in the application for grant of leave to defend the suit, wherefrom limitation could be counted.
10. It was also argued that the learned trial Court has properly appreciated the record of the case and rightly passed decree in favour of respondent.
11. After hearing the learned counsel for the parties the appeal was admitted to regular hearing and the record was perused.
12. The respondent/plaintiff on 4-1-2002 had filed suit for recovery of Rs,8,40,000 alongwith mark-up at the rate of 15% under Order 37, C.P.C. Alongwith the suit, an application for attachment of the property of the appellant/defendant was also filed. The learned trial Court issued summons prescribed in Form 4 in appendix of C.P.C. And also issued notice of the application in the name of appellant/defendant. The appellant after being served submitted application for grant of leave to defend the suit on 29-1-2002. It was on 12-2-2002 that the respondent/plaintiff moved an application for dismissal of the application for grant of leave to defend the suit as the same had not been filed within the time prescribed by law. The said application was resisted by the appellant by filing written reply. The respondent/plaintiff on 20-5-2002 submitted another application for summoning Bailiff, and in paragraph 6 of the said application stated that the appellant had been served through his counsel on 16-1-2002, but later on the learned counsel representing him put the date i,e, 21-1-2002 under his signatures to bring the application for grant of leave to defend the suit with time. The said application was also resisted by the appellant by filing reply. The learned trial Court, however, summoned the concerned Bailiff and recorded his statement.
13. The argument of the learned counsel for the appellant that the application filed by the petitioner for grant of leave to defend the suit was within time has no force at all. In fact this is the only question that requires determination in this appeal i,e, as to whether the application submitted by the appellant for grant of leave to defend the suit was within time, answer to this question is in negative. Perusal of the record shows that the learned trial Court had issued two summons in the name of appellant/defendant, one as prescribed under Form 4 in Appendix B, C.P.C. Whereby the appellant had been summoned to obtain leave to defend the suit from the said Court within 10 days from his service. The other notice was with regard to the application for attachment of property of appellant.. The stand of the respondent/plaintiff was that the appellant/defendant had been served through his counsel namely Mr. M. Muaazam Butt, Advocate on 16-1-2002 and application for leave to defend the suit was submitted by him on 29-1-2002, which was barred by time, whereas the defence put forth by the appellant was that he was served through his counsel on 21-1-2002, hence his application filed on 29-1-2002 was within time. In order to resolve the controversy, the learned trial Court summoned Sultanul Arifin, Process-Server, who had effected the service of appellant through his above named counsel. The said Bailiff stated that he approached the appellant/defendant on 16-1-2002. He was found in his Plaza, but was reluctant to sign both the summons and told him to accompany the appellant to his counsel namely Mr. Muaazam Butt. Advocate. He accordingly accompanied him to his counsel and presented the A summons to the learned counsel and in his presence (Bailiffs) the learned counsel named above put his signatures on both the summons Exh.C.W.1/1 and 1/2. He then submitted his report on the back of the summons which was marked as Exhs.C.W.1/3 and 1/4. The respondent/plaintiff also placed on record photostat copies of the above mentioned summons on the back whereof signatures of learned counsel are visible without any date. Those photostat were marked as Exhs.C.W.1/5 and 1/6. The appellant/defendant had been served through his counsel on 16-1-2002 firstly because the report of the Bailiff Exhs.C.W.1/3 and 1/4 is dated 16-1-2002, in which he has stated that the appellant/defendant had refused to effect his service and had asked him to accompany him to his counsel namely Mr. Muaazam Butt, who in presence of appellant had put his signatures at the back of both the summons. Secondly, the perusal of Exhs.C.W.1/5 and 1/6 shows that the learned counsel had not put any date under his signature at the time of service. The date put on Exhs.C.W.1/3 and 1/4 is not only with different ink but appears to have been put later on in order to bring the application for grant of leave to defend the suit within time. Thirdly, the appellant/defendant did not mention any date in the application for grant of leave to defend the suit in order to show as to when and through whom he was served. Fourthly, the appellant/defendant had not raised any objection regarding his service through his counsel. Fifthly, neither the report of the Bailiff dated 16-1-2002 has been challenged by the appellant nor the appellant in reply to applications dated 12-2-2002 and 20-5-2002 stated that he was served through his counsel on 21-1-2002. In fact both replies submitted by him were evasive with regard to date of his service.
14. Since the appellant/defendant had been served through his counsel on 16-1-2002, therefore, application filed by him on 29-1-2002 was barred by time.
15. The argument of the learned counsel for the appellant that the learned trial Court should have framed preliminary issue as to whether the application for grant of leave to defend the suit was within time or not and then the case should have been decided also has no force. The spirit behind the provisions of Order 37, C.P.C. Was to provide efficacious remedy and to avoid prolongation of such suits. Its object provides a mechanism for speedy and summary remedy for recovery of money in respect of suits which are filed on the basis of promissory notes, bills of exchange, cheques and hundies. Perusal of Rule 1 of Order 37, C.P.C. Indicates that the Order is applicable to High Court, District Court and to any other Civil Court notified in this behalf by the High Court. Under sub-rule (1) of Rule 2 it has been laid down that all the suits upon bills of exchange, hundies or promissory note, may in case the plaintiff so desires, be instituted by presenting a plaint in the form prescribed, but the summons shall be in Form No,4, Appendix B or any such other Form as may be from time to time prescribed.
16. Sub-rule (2) of rule 2 of Order envisages that if a suit is filed in terms of sub-rule (1), the defendant shall not appear to defend the suit unless he obtains leave from as hereinafter provided so to appear and defend. It further contemplates that in default of his obtaining such leave or his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree in terms of sub-clauses (a), (b) and (c).
Whereas sub-rule (3) thereof lays down that a decree passed under the above Rules may be executed forthwith.
17. Rule 3 deals with the case in which a defendant after receipt of the summons in Form No,4 as provided in Appendix B to the C.P.C. Appears in Court within the prescribed time, namely 10 days specified in the above Form and applies for leave to defend by disclosing upon an affidavit such facts as would make incumbent on the holder i,e, holder of the documents referred to in sub-rule
(1) to Rule 2, to prove consideration or such other facts as the Court may deem sufficient to support the application.
18. Article 159 of the Limitation Act prescribes 10 days' period for filing application for leave to appear and defend the suit under summary procedure of Order 37, C.P.C. Commencing from the time when thesummons is served. This Article has direct nexus with the provisions of Order 37, C.P.C. And both provisions are inter-dependent and interconnected. In case of failure of defendant to appear and obtain leave within 10 days of his service, the trial Court would be justified to dismiss the application for leave to defend.
19. In the case in hand, as mentioned above, the appellant had been served on 16-1-2002, but he filed application for, grant of leave to defend the suit on 29-1-2002. No application for condonation of delay was filed. A similar proposition came up for hearing in National Bank of Pakistan etc. v.
Emirates Bank International Ltd., etc. 1993 SCM R 931 in which the application for grant of leave to defend the suit was time-barred having been filed after 10 days, prescribed by Article 159 of the Limitation Act and the learned Division Bench of High Court had declined to condone the delay, the same was upheld and interference in the same was declined. Such a controversy came up for resolution in Muhammad Siddique v. Muhammad Ashraf 2000 YLR 2471 in which it was held that since the application for grant of leave to defend the suit was barred by time and no application for condonation of delay was filed therewith, therefore, the learned Additional District Judge had validly dismissed the same.
20. The argument of the learned counsel for the appellant that the learned counsel for the respondent/plaintiff was allowed to cross-examine the Bailiff after the appellant's counsel has cross-examined him, thus prejudice was caused to him has no force at all. The learned trial Court in order to resolve the controversy as to whether the appellant had been served on 16-1-2002 (wrongly mentioned as 16-11-2002 by the learned trial Court). On the application submitted by the respondent/appellant had summoned the Bailiff as Court-witness. The learned trial Court could under Order 16, Rule 14, C.P.C. Of its own motion, cause such person to be summoned as witness to give evidence or to produce any document in his possession, on a day to be appointed, and could examine him as a witness or require him to produce such document and parties could also cross- examine the witness summoned by the Court. In Gopal Lall Seal v. Manick Lall Seal (24 Cal. 288) it was held:- "The Magistrate was in error in refusing to allow the complainant's attorney to cross-examine the witness who was summoned and examined as a witness by the Court."
No procedure has been prescribed or could be quoted by the learned counsel for the appellant under which respondent/plaintiff should have been asked to cross-examine the Court-witness first and then the appellant/defendant should have cross-examined him, therefore, no prejudice has been caused to the appellant if the Court-witness was also cross-examined by the respondent/plaintiff.
21. Even on merits, the appellant has not been able to show such facts which could disclose a plausible defence or which may be given rise to triable issues. In his application for leave to defend the suit, the appellant has made vague and general averments. The appellant in his application for leave to defend the suit has taken self-contradictory pleas. On the one hand he has denied having executed the pronote dated 1-2-1999. On the other hand he has taken up the plea that the said pronote was time-barred and that the signature of the appellant/defendant was not visible or evident on the revenue stamps affixed on the pronote. Moreover, it has been admitted that on the same day the daughter of respondent/plaintiff was made to transfer Plot No,48 situated at Sector L-I, Hayat Abad in the name of wife of appellant, which means that the parties were very much present on the day when the transfer of the said plot took place in the name of wife of appellant and the pronote in question was executed by the appellant. The defence taken by the appellant in the application for grant of leave to defend the suit was, therefore sham, illusory and imaginary, hence as mentioned above, did not give rise to triable issues. In Raja Saeed Ahmad Khan v. Sabir Hussain 2002 CLC 199 this Court has held:-- "Grant of leave to defend a suit filed under Order XXXVII, C.P.C. Is not a matter of course of right. In order to be legible for this benefit, the defendant is liable to show such facts which may warrant the proving of the consideration by the plaintiff or disclose a plausible defence which may give rise to triable issues. This necessarily implies that granting of permission to defend the suit or refusal thereof shall be dependent on the attending circumstances of each case and as such no hard and fast rule can be laid for the purpose. Leave shall be refused if no defence worth the name out on facts or in law in the application for leave to defend the suit. Leave shall also be refused if the defence disclosed on affidavits is sham or clourable on illusory/imaginary and may not give rise to triable issues."
22. The learned trial Court has, therefore, rightly refused leave to the appellant/defendant to defend the suit.
Keeping in view the above discussion I am of the firm view that the judgment and decree passed by the learned Court below is based on proper appreciation of material available on record and law applicable to the case in hand, hence need no interference. Resultantly.The appeal in hand is dismissed with no orders as to costs.