2019 PLP 1682 (CLC)

FAISAL ZAMAN KHAN, J.

Through this Civil Revision, order dated 26.01.2018 passed by learned Additional District Judge Lahore has been assailed, by virtue of which, petitioner has been asked to produce his evidence.

2. Facts giving rise to the present petition are that on the basis of a cheque issued by the respondent in favour of the petitioner, a suit under Order XXXVII, C.P.C. was filed by the petitioner against the respondent in which, in spite of service, respondent failed to appear, because of which, after the publication in the newspaper, he was proceeded against ex parte on 26.01.2018 and the petitioner was asked to produce his evidence, therefore, this petition.

3. Learned counsel for the petitioner with vehemence argued that the procedure provided under Order XXXVII, C.P.C. is summary in nature and in case, there is no rebuttal to the contents of the plaint, the court is supposed to decree the suit forthwith. Reliance is placed upon Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCMR 2832).

4. Arguments heard. Record perused.

5. A perusal of the impugned order would show that after publication in the newspaper, respondent was proceeded against ex parte as neither an application for leave to appear and defend was filed by the respondent nor any one appeared on his behalf.

6. Order XXXVII Rule 2, C.P.C., clearly stipulates that if no leave is granted to the defendant or he fails to appear before the court, plaintiff is "entitled" to a decree, however this provision does not spell out that in case none appears on behalf of the defendant, the Court is precluded from directing the plaintiff to produce evidence in support of his plaint in order to prove his case beyond any shadow of doubt. A further perusal of Rule 7, Order XXXVII, C.P.C. stipulates that the procedure which will be followed in a summary suit filed under Order XXXVII, C.P.C. will be the same which is adopted in a regular suit.

7. A cumulative reading of Orders VIII and IX along with Order XXXVII, C.P.C. would clearly signify that it is the satisfaction of the learned trial court which is the paramount consideration for the decision of the suit and for that, the learned trial court can call for evidence, appoint a local, commission to inspect the spot or to appoint an expert for arriving on just and proper conclusion, therefore a trial court cannot be stopped from directing any party to produce evidence in order to prove his case. Even otherwise the judgments passed by the courts without recording evidence are looked down upon by the Superior Courts. For reference reliance can be placed on C.N. Ramappa Gowda v. C.C. Chandregowda (dead) through L.Rs. and another (2013 SCMR 137), Provincial Government through Collector Kohat and another v. Shabbir Hussain (PLD 2005 SC 337) and Rehmat Ali v. Additional District Judge, Multan and others (1999 SCMR 900).

8. The facts and circumstances of the present case would suggest that the learned trial court in its own wisdom has asked for the evidence of the petitioner so that he can arrive at the right conclusion, therefore, no illegality has been committed by the learned trial court.

9. Since the learned counsel for the petitioner has not been able to show any jurisdictional defect or procedural impropriety in the impugned order, therefore, no ground for interference is made out.

10. As regards the judgment cited by the learned counsel, since the same has been passed in different facts and circumstances therefore the same is not applicable to the case in hand.

11. In view of the above, this Civil Revision fails and the same is dismissed. KMZ/N-25/L Revision dismissed.