1993 PLP 295 (CLC)

This judgment shall dispose of Regular First Appeals Nos. 22 and 23 of 1990 as in both of them identical questions of law and fact are involved.

2. Muhammad Rafiq, a brick kiln owner, had brought two suits on the 23rd of July, 1989, under Order XXXVII, rule 2, C.P.C. Vide pronote dated the 8th of July, 1988, Bahadur appellant‑defendant had taken Rs. 22,000. (Rupees twenty two thousand only) in cash as loan from the respondent plaintiff. Anwar Hussain Shah appellant‑defendant had recevied an amount of Rs.18,000 (Rupees eighteen thousand only) from the respondent vide pronote dated the 30th of June, 1988. The appellants were labourers in a different brick kiln and the said amounts were in arrears against them. The previous brick kiln owner demanded the money. They, therefore, approached the respondent saying that the said amounts be given to them as loan and that thereafter they shall work at his brick kiln. The respondent, therefore, gave the said amounts to the appellants vide impugned promissory notes. The respondent instituted the suits against them for recovery of the amounts on the 23rd of July, 1989. The appellants, however, did not seek leave to defend the suits within prescribed time and had failed to show reasonable cause for the delay, therefore, the Additional District Judge did not permit them to defend the suits and decreed the claims of the respondent on the basis of averments in the plaints without recording evidence.

3. In both the suits, the summonses were served upon the appellants on the 10th of September. 1989, copy of which w4s furnished to them containing an intimation for permission to be obtained by them to defend the suits within ten days from the service of the notices. Thus, the appellants had to enter appearance in the Court and seek the requisite permission to defend the suits by the 20th of September, 1989. The appellants, however, submitted the petitions to defend the suits on the 30th of September, 1989, that is ten days after the zero hour. Since the appellants had not specifically denied the execution of the promissory notes, nor their contents, nor the taking of amounts mentioned in the receipts, the learned trial Court, therefore, was justified to invoke presumption as to passing off consideration in regard to the promissory notes and decree the suits on the basis of claims contained in the plaints. There is no merit in` the contention of the learned counsel for the appellants that the Court was under obligation to record full evidence of the respondent in spite of refusal to the appellants to defend the suits. Reliance of the learned counsel on Muhammad Yousaf v. Allah Yar PLD 1987 Lah. 101 is unhelpful as the trial Court in that case had not given reasons in support of the order. In the instant case the learned trial Court has given detailed reasons in support of the order after dealing with all the contentions raised by the learned counsel for. the appellants. Here, the appellants had also not entered appearance in the Court and responded to the notices within the prescribed time to seek permission of the Court to defend the suits. They had appeared beyond time and had failed to explain the delay. I am also not convinced by the explanation of the appellants that since the language of the notices was English and the appellants being illiterate could not know their contents and comply with them. After receiving the notices, the appellants were under obligation to know what the contents of the notices were. They could solicit help of literates to know about the contents of the notices. The appellants had also engaged the services of the counsel and they have to incur the consequences if their lawyer was indolent in invoking the relief quickly. Moreover, it need not be gainsaid that ignorance of law does not furnish any excuse. So, was ruled in numerous rulings of the Supreme Court including Khalid Farooq and others v. Hakeem Nazar Muhammad (1979 SCMR 52). No good ground was shown for condonation of delay under section 5 of the Limitation Act. Formality of recording complete evidence in summary suits is not essential as after the leave is refused, the plaintiff is entitled to a decree and all the allegations made in the plaint are deemed to be admitted. This view finds support from a Karachi decision, S.M. Akil Fikree v. Muhammad Qamar‑ur‑Zaman (PLD 1982 Kar. 745).

4. Learned counsel for the appellants, however, drew attention to the contents of the plaint stressing that the respondent's claim was based on Peshgi which he on his own showing had advanced to them on their agreeing to execute bonded labour in making bricks at his kiln. He contended that such a transaction was squarely covered by subsections (1), (3) and (9) of section 6 of Bonded Labour System (Abolition) Act, III of 1992 which reads as under:‑ (1) On the commencement of this Act, every obligation of a bonded labour to repay any bonded debt, or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall stand extinguished. (2) ................................. (3) Every decree or order for the recovery of bonded debt, passed before the commencement of this Act and not fully satisfied before such commencement, shall be deemed, on such commencement, to have been fully satisfied. (9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour system, including a suit or proceeding for the recovery of any advance (Peshgi) made to a bonded labourer, is pending at. the commencement of this Act, such suit or other proceedings shall, on such commencement, stand dismissed.

5. He maintained that this advance amounted to "bonded debt" as defined in clauses (b) and (c) of the afore‑said Act that, firstly it stood extinguished, secondly it shall be deemed to have been fully satisfied and thirdly that the present suit pending at the tame of the commencement of the said Act, stood dismissed.

6. Conversely the counsel of the respondent/plaintiff argued that the debt having been undertaken by means of the pronotes in question it vas nothing more than a simple instance of lending money by creditor to a debtor repayable on demend that it did not fall within the mischief of the "Bonded Labour System" in clause (e) ibid. For this reason he added that the summary suits brought under Order XXXVII of the Code of Civil Procedure were quite efficacious.

7. I have considerable hesitation in accepting the contention of the learned counsel for the respondent in that in his plaint, he did not mince the matter relating to nature of his claim which in his own words was based on his having advanced amount in dispute for using the appellants services as brick makers. It will be extremely difficult for him to wriggle out of his own commitment to the type of debt he happened to pay in advance to the appellants. He cannot possibly. confine his version to the bare mention made in the body of the promissory note forming subject‑matter of the suit. He chose to put his gloss upon the document and construct it explicitly to contain payment which fell within the definition of Peshgi referred to in clause (b) of the Act.

8. Next, it was unequally in uninhering to urge that the payment in question did not take place under or in pursuance of the "Bonded Labour System". An essential element of this system was forced labour, or partly forced labour, under which the debtor has either entered or is presumed to have entered into the agreement binding himself to "render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages" section 2 (c). While the respondent gave so much amount to the appellants was made clear in so many words in the plaint. There. was no other object for advancing the same by one to the other except to make the appellants to render services for the respondent creditor at the latter's brick kiln. He expressed unambiguously he wanted such labour to run his kiln. Evidently he pursuaded the appellants to enter into agreement into the shape of the pronotes in lieu of the consideration constituting Zar‑e‑Peshgi. It may be said that in the given circumstances one could presume that the pronotes were executed in consideration of the appellants' rendering services to their creditors. Obviously the agreement/pronotes being effected by the term "Bonded Labour System" were bad in law. Those could not be enforced as the obligations thereunder stood extinguished and even in a worse case where a decree may have been passed for its payment it shall be deemed to have been "fully satisfied". Still more the present suits being pending at the time of the commencement of Act III of 1992 coming into force on the 17th of March, 1992 shall "stand dismissed".

9. The lower Court should have seen to this aspect of the case and rather ordered dismissal of the suits. The impugned judgments/decrees cannot be sustained. The appeals are allowed, the impugned judgments/decrees are set aside and instead the suits of the respondent are dismissed under section 6 (9) of the Act III of 1992. The parties are, however, left to bear their own costs. A.A./B‑51/L Appeals accepted