2013 PLP 1254 (CLD)

SYED MUHAMMAD FAROOQ SHAH, J.

The captioned revision application is directed against the impugned order dated 5-4-2011 passed by VIIth Additional District Judge, Hyderabad in Summary Suit No.60 of 2010 (Haji Khawand Bux Ghulam Muhammad v. Seri Sugar Mill and another), whereby the learned lower Court has allowed the application to leave to defend the suit, subject to furnish surety to the satisfaction of the suit amount within thirty days.

2. The applicant assailed the impugned order on the ground that learned lower Court has seriously erred to allow the application to defend the suit conditionally on the facts and grounds set forth in the memo of revision application, in which the following prayer has been made:-- "A. It may be declared through the judgment and decree of this honourable Court, that the delivery order of 572 bags in quantity of 28.60 tones through delivery order No.02359 dated 28-1-2009 delivery by the defendants to the plaintiff, the plaintiff is entitled for 572 bags as well as, the Bank interest of 14% on amount of Rs.12,00,000 till the decision of the suit."

3. I have heard learned counsel for the applicant and respondent in person, I have also perused the material available on the record in the light of statutory provisions.

4. Learned counsel for the applicant submitted that the suit was filed under Summary Chapter by invoking provisions of Order XXXVII, Rule 3, C.P.C., therefore, the learned trial Court was having no jurisdiction to entertain and adjudicate the same. The delivery order attached with the plaint, on the basis of which the above suit has been filed, does not fall within the definition of 'Negotiable Instruments' as defined under section 13 of Negotiable Instruments Act, which reads:- "A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer." It is further argued that by no stretch of imagination, the delivery order as defined under section 2(2) of the Sales of Goods Act that "delivery" means voluntary transfer of possession from one person to another." does not falls within the ambit of Negotiable Instruments but the learned trial Court has not only entertained the suit filed under Order XXXVII, Rule 3, C.P.C. but also admitted the contention of defendant/applicant urged in application for leave to defend made in Summary Suit No.60 of 2010 and observed at Para 5 as under:- "I have very anxiously considered the contentions raised by learned counsel appearing on behalf of their respective parties during course of their arguments and have gone through R&Ps of suit in hand. It is well settled principle of law that leave to defend the suit may be granted conditional or unconditional and such discretion always lies with the court and such discretion has to be judicially exercised and not to shut out a plausible defence. It is also admitted fact that where the defence raises real issue and disclosing a triable issue or where substantial question of law and fact arises, or where the jurisdiction of court is doubtful or where the question arises, whether the suit filed had been properly instituted, leave to defend may be granted condition or unconditional."

5. The grievance of the applicant is that though leave to defend the suit filed under Order XXXVII, Rule 3, C.P.C. was allowed to the applicant but conditionally subject to furnishing surety to the satisfaction of the suit amount within thirty days of passing this order, which is not maintainable under the law. Learned counsel further submitted that if at all, the defendant has a right to sue under section 58 of Sales of Goods Act and as provided under section 15 of Civil Procedure Code however, suit under summary proceedings chapter is not maintainable. Reliance has been placed on the case of Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others (1992 SCMR 718), wherein the honourable Supreme Court observed as that:-- "Since guarantor had executed the guarantee bond, the summary suit proceeded under Order XXXVII, C.P.C. was not applicable to it. Order of the trial Court granting leave to guarantor to appear and defend the suit Under Order XXXVII, Rule 3, C.P.C. subject to deposit of the amount claimed, could not be sustained."

6. Relevant facts available on the record depict that respondent has filed Summary Suit No.60 of 2010, wherein the following prayer has been made:-- "(a) It may be declared through the judgment and decree of this honourable Court, that the delivery order of 572 bags in quantity of 28.60 tons through delivery order No.02359 dated 28-1-2009 delivered by the defendants to the plaintiff; the plaintiff is entitled for 572 bags as well as, the Bank interest of 14% on amount of Rs.12,00,000 till the decision of the suit."

7. The respondent present in Court (unrepresented) claimed that in the larger administration of justice, the applicant may be directed to pay him his outstanding dues.

8. Whatever mentioned above, I have to observe that plaintiff/respondent, if at all, may have claimed his right as prayed in the aforementioned suit, as per entitlement, in accordance with law but not by way of filing suit under Order XXXVII, Rule 3, C.P.C. and may proceed like an ordinary suit, according to normal procedure prescribed under the Code of Civil Procedure. Accordingly, the revision application is allowed in the manner indicated above and the impugned order of the learned lower Court dated 5-4-2011 is set aside being 'corum non judice'. However, there shall be no order as to costs. MH/S-103/K Revision allowed.