2009 PLP 1101 (SCMR)

MUHAMMAD AKHTAR SHABBIR, J.

Petitioner seeks leave to appeal against the judgment, dated 21-6-2007, passed by the High Court of Balochistan, Quetta, in R.F.A. No.57 of 2002.

2. The facts of the case are that the plaintiff, respondent herein, had filed suit for recovery of Rs.4,50,000 under Order XXXVII, rule 2, C.P.C. averring in the plaint that defendant-petitioner had purchased a vehicle Toyota Corolla, Model 1983, bearing Registration No.AA-0251 from the respondent for a consideration of Rs.4,50,

000. In this regard an agreement, dated 10-10-2000 had been executed, wherein it was agreed that the sale consideration of vehicle would be paid within three months i.e. upto 10-1-2001. Defendant-petitioner further issued a cheque bearing No.06583227, dated 10-10-2000 drawn on Habib Bank Limited Satellite Town Branch in favour of plaintiff-respondent. Defendant also executed "Promissory Note" in favour of plaintiff. As per plaintiff cheque when presented before the Bank was bounced, whereafter the plaintiff approached the defendant who delayed the matter on one pretext or the other and lastly refused to pay the amount. The defendant in response to the notice issued to him filed an application seeking leave to defend the suit. The trial Court without disposal of the application directed the defendant to file his written statement, which was accordingly filed, meanwhile one Fazal-ur-Rehman had also filed an application under Order I, rule 10, C.P.C. read with section 151, C.P.C. for his impleadment as defendant. The said 'application had been dismissed by the Court on 4-7-2002. The application for leave to defend the suit filed by the present petitioner had also been dismissed, refusing the leave to defend the suit. Resultantly the suit was decreed vide, judgment and decree, dated 8-9-2002. Feeling aggrieved of same petitioner filed R.F.A. No.57 of 2002 before the High Court Balochistan, Quetta, which was dismissed by the Division Bench vide impugned judgment.

3. Learned counsel for the petitioner contended that Court has directed the petitioner to file written statement and in compliance to the said order petitioner filed the same in the Court. Further contended that Court had initiated proceedings in the suit but thereafter dismissed the application for leave to defend illegally. Further contended that petitioner had disclosed a plausible defence in his application which should have been granted either conditionally or unconditionally. Further contended that once the Court has started proceedings and adopted a procedure and the said suit should have been concluded under that procedure.

4. We have heard the learned counsel for the petitioner, perused the record.

5. It is admitted position that suit has been filed by the petitioner under Order XXXVII, rule 2, C.P.C. on 20-6-2002. Order XXXVII merely provides special procedure to be followed in suits covered by rule 2 and the defendant appearing in the Court has to seek leave to defend the suit by filing an application under rule 3 of Order XXXVII. The relevant provisions of the said rule are reproduced as under:

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3. 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 disclose 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. (2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit. (3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to application under sub-rule (1)." From plain reading of the above provisions it is manifestly clear that defendant may apply for leave to appear and defend or should file an affidavit disclosing a defence. In this context reference can be made to case of Haji Ali Khan & Co., Abbottabad and 8 others v. Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362, wherein it has been laid down that leave can be granted if a defendant upon affidavit discloses such facts as would make it incumbent on the holder of the document on the basis of which suit had been filed.

6. The petitioner has raised a defence in his application for leave to defend that actually the vehicle had been sold out by the plaintiff to one Fazal-ur-Rehman and the petitioner had signed all the documents produced in the Court just on the assertions of plaintiff as "guarantor" for Fazal-ur-Rehman. The petitioner had not denied the execution of Agreement, Promissory Note and the cheque in dispute meaning thereby that petitioner has admitted his signature on the cheque. It is settled law that the Court would grant leave to defend the suit whether conditional or unconditional; where the petitioner through affidavit with the application for leave to defend would show "plausible defence" or showing some substantial question of fact or law which needs to be tried as laid down in cases Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163, Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749, Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718 and Ch. Maqsood Ahmed v. Khalid Pervaiz 1990 CLC 1536.

7. From minute scrutiny of the record we find that affidavit filed by the petitioner with his application for leave to defend the suit did not disclose facts and prove "prima facie" "plausible defence", therefore, it would be inferred that affidavit is not in accordance with the provision of rule 3, Order XXXVII. The petitioner has admitted his signature on the affidavits, promissory note and the agreement. A prudent mind would not accept the stance of the petitioner that he signed all the three documents as surety/guarantor for one Fazal-ur-Rehman. The trial Court has rightly dismissed the application for leave to defend filed by the petitioner as petitioner has failed to make out a case for grant of leave to defend the suit.

8. As to the argument of the learned counsel for the petitioner that the Court has directed petitioner to file written statement and adopted the other procedure, the answer would be that suit was filed by the plaintiff-respondent under Order XXXVI, rule 2, C.P.C., a special procedure has been provided in the said Order, to be followed in 'suits instituted upon bill of exchange, Hundies or promissory notes and where the defendant had defaulted for obtaining prescribed leave for his appearance for defending the suit. If application for leave to defend is not allowed by the Court then no option is left with the Court but to decree the suit without recording of evidence and that because object of speedy and summary trial would be defeated. If the Court without adverting to the special procedure provided under the law has directed the petitioner to file written statement and thereafter adopted valid and required procedure has not committed any illegality. After hearing the learned counsel for the petitioner and examination of the record, we do not find any illegality, infirmity in the impugned judgments of the Courts below.

9. For the foregoing reasons, we do not find any substance in this petition, `which is dismissed. Leave to appeal refused. M.B.A./U-1/SC Petition dismissed.