' The brief facts out of which the present revision petition arises are that the petitioner secured a loan from the respondent allegedly through a pronote, dated 30-11-1998. The petitioner failed to discharge his liability allegedly in terms of the pronote. The respondent being aggrieved filed a suit for recovery of Rs.5,12,519.53 alongwith profit and mark-up @ 18% with further prayer that the mark- up shall be paid by the petitioner to the respondent till realization of the loan before the learned Additional District Judge, Lahore, on 29-11-2001. The learned trial Court issued notice to the petitioner vide order, dated 8-12-2001 for 5-1-2002. The petitioner appeared before the trial Court on 5-1-2002. The Reader of the trial Court intimated the petitioner to file an application for leave to defend. The petitioner filed an application for leave to defend alongwith an application for condonation of delay under section 5 of the Limitation Act. The learned trial Court dismissed the application for condonation of delay on the ground that the petitioner has to file the application for leave to defend till 22-12-2001. The petitioner failed to file the same till 5-1-2002. The petitioner was directed by the trial Court to file an application for leave to defend within ten days whereas the petitioner has filed application for leave to defend after 13 days after the expiry of the period of limitation and the application for leave to defend of the petitioner was dismissed as time-barred vide order, dated 17-3-2003. The petitioner being aggrieved filed Civil Revision No,566 of 2003, which was accepted vide judgment, dated 1-7-2003 and the learned Additional District Judge was directed to decide the application for leave to defend filed by the petitioner on merits within three months. The trial Court decided the application for leave to defend of the petitioner on merits and dismissed the same vide order, dated 30-9-2003.
2. Learned counsel of the petitioner submits that the learned trial Court erred in law to dismiss the application for leave to defend merely on technical ground in view of the law laid down by the superior Courts in the following judgments:-- ' United Bank Limited v. Messrs Azmat Textile Mills Ltd. 1997 M LD 1033, Malik Zafar Iqbal v. Messrs APCO Bahawalpur 1998 CLC 1133 and Abdul Rehman v. Talib Hussain 1989 CLC 1689.
' He further submits that facts of the cited cases are entirely distinguished as the petitioner has verified the application for leave to defend on oath. He further submits that petitioner has prima facie good arguable case but the petitioner was knocked down by the trial Court through the impugned order on a technical ground.
3. Learned counsel of the respondent submits that legislature in its wisdom has specifically used the word "shall" in Order 37, rule 3, C.P.C. Which clearly envisages that it is mandatory requirement.
He further submits that the trial Court has decided the case after application of mind specially scrutinizing the document, dated 30-11-1998 thereafter it has given finding of fact against the petitioner that the signatures were obtained deceitfully by the respondent-plaintiff, does not appeal to any prudent mind. He further submits that learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned order of the trial Court, therefore, revision petition is liable to be dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that the learned Additional District Judge has decided the controversy basically between the parties on the basis of the law laid down by the superior Courts as mentioned above in narration of facts. The cited cases are distinguished on facts and law. In the cited cases applications for leave to defend were not verified on oath whereas in the present case the application for leave to defend is verified on oath by the petitioner. It is settled principle of law that the Rules framed in the Code of Civil Procedure/Rules made for the advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. In arriving to this conclusion, I am fortified by the law laid down in Muhammad Sarwar's case 1980 CLC 946. The Honourable Supreme Court has laid down a principle in Khuda Yaar's case PLD 1975 SC 678 that technicalities should not be hindrance in the way of justice. The relevant observation is as follows:- - ' "Mere technicalities, unless offering insurmountable hurdles, not to be allowed to defeat ends of justice."
' The Honourable Supreme Court has in fact approved the dictum already laid down by the Honourable Supreme Court in Imitaz Ahmad's case PLD 1963 SC 382. It is pertinent to mention here that after addition of Article 2-A in the Constitution, the Honourable Supreme Court departure from the previous practice and insisted to avoid technicalities and the cases must be decided on merit.
In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in. Said. Muhammad's case PLD 1989 SC 532. The aforesaid judgment was again followed by the Honourable Supreme Court in Mst. Sardar Begum v. Muhammad Anwar Shah 1993 SCM R 363.
Verification on oath although is not equivalent to affidavit as prescribed under Order 37, rule 3(1), C.P.C. But substantially the requirement of Order 37, rule 3, C.P.C. Is complied with. The learned trial Court was on obligation to allow an opportunity to the petitioner in the circumstances of the case to remedy the defect as the law laid down by the Honourable Supreme Court in Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd. Gujranwala PLD 1973 Note 33. The relevant observation is as follows:-- ' "The defect if any, therefore, can certainly be cured either by the party amending the plaint on his own initiative or by the Court suo motu ordering for the removal of the defect."
' In somewhat similar circumstances, this Court has given verdict by interpreting various provisions of C.P.C. And followed the aforesaid view in Messrs Adamjee Construction Company's case 1999 M LD 2202. Keeping in view the principle of consistency I am not in a position to deviate from my own view as the law laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan's case PLD 1959 SC 9. Even otherwise the trial Court has decided the case without adverting to section 148, C.P.C. It is better and appropriate to reproduce Order 37, rule 3(1), C.P.C. And Form 4 of Appendix "B" under the Heading Summons in Summary Suit On Negotiable Instruments (Order 37, rule 2) to resolve the controversy between the parties:-- ' "Section 148, C.P.C. Enlargement of time.--- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may; in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
' Order 37, rule 3(1), C.P.C. Defendant showing defence on merits to have leave to appear.--- (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclosed 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.
' Form No,4, Summon in Summary Suit On Negotiable Instrument (Order 37 rule 2).
' Title (Name, Description and Place of residence) To ' Whereas has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908 for Rs. , balance of principal and interest due to him as the of a of which a copy is hereto/hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. And the sum of Rs. For cost (together with such interest, if any, from the date of the institution of the suit as the Court may order).
' Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit.
' Given under my hand and the seal of the Court, this day of Judge."
Mere reading of the aforesaid provisions of law clearly shows that when a defendant files an application for leave to defend the suit, he is bound to support the application by an affidavit where there is a failure on the part of the defendant to file affidavit or declaration in terms of the aforesaid Form 4 of Appendix "B", no doubt it is non-compliance of the Form but there is no prohibition or compulsion upon the Court not to accept the belated affidavit which would be filed by the defendant while exercising discretion under section 148, C.P.C. In arriving to this conclusion, I am fortified by the law laid down in Emirates Bank International v. United Exports Limited and 8 others PLD 1993 Kar.
661. The relevant observation is as follows:-- ' "It is always in the discretion of the Court under section 148, C.P.C. To accept valid affidavit filed by the defendant. The discretion must be liberally granted in favour of defendant in a summary suit and he should not be debarred from setting up his defence against suit in summary jurisdiction unless Court is satisfied that he has no other object but to delay or defeat the proceedings in the suit or harass the plaintiff."
Therefore, the impugned order is passed by the learned trial Court without application of mind, which is paramount duty of the Courts to decide the cases after judicial application of mind as the law laid:down by the Honourable Supreme Court in Mollah Ejahar All v. Government of East Pakistan and others PLD 1970 SC 173.
6. In view of what has been discussed above, this revision petition is accepted with no order as to costs. Meaning thereby the application for leave to appear and defend the suit filed by the petitioner shall be deemed to be pending adjudication before the trial Court, and the trial Court is directed to decide the same afresh without being influenced by the aforesaid observations of this Court. Parties are directed to appear before the trial Court on 10-5-2004, who is directed to allow the petitioner to file affidavit in terms of Order 37, rule 3 (1), C.P.C. Within one week after the said date of appearance before the trial Court. In case the petitioner fails to file affidavit, then law will taken its own course.