2000 PLP 2456 (YLR)

Abdullah Qureshi for Appellant. Shamsher Iqbal Chughtai for Respondent. Date of hearing: 17th June, 1999. Appellant filed a suit for recovery of Rs.4,50,000 on the basis of a pronote, dated 13‑5‑1995. The suit was instituted under Order 37, Rules 1 and 2 of the C.P.C. Application for leave to appear and defend 1 the suit was filed by the respondent. While deciding the application, learned District Judge formed the view that the suit could not be tried under Order 37 of C.P.C., as it was not based on promissory note but was result of some settlement. He accordingly directed return of the plaint for presentation before the Court of competent jurisdiction. Against the order for return of plaint, this appeal has been filed.

2. Learned counsel for the appellant took strong exception to the mode in which application for leave to appear and defend the suit was dealt with by the learned District Judge. Leaned counsel contended that there was no request for return of the plaint and the learned District Judge was only dealing with the application for leave to appear and defend the suit and, therefore, there was no justification to issue directive for return of the plaint. It as added that the Court should have confined to the question as to whether leave to appear and defend the suit should be granted and if so, on what conditions.

3. In reply, learned counsel for the respondent submitted that the facts enumerated in the application for leave to appear and defend the suit and also the reply submitted by the appellant would show that the suit was not primarily based on the promissory note/negotiable instrument and therefore, no cognizance could be taken under Order 37 of C.P.C.

4. I have considered the respective submissions of learned counsel for the parties.

5. In so far the question as to whether the order for return of plaint could be passed, there is substance in the submissions of learned counsel for the appellant that the issue had never cropped up before the learned District Judge and, therefore, there was no basis for the learned District Judge to assume that the suit was not congizable as suit under Order 37 of C.P.C. Even otherwise, perusal of plaint indicates that the relief claimed is based on promissory note. The Court at this initial stage was expected to look into contents of the plaint and if from the averments made therein, one gains an impression that the suit is summary in nature and is based on negotiable instrument then no extraneous material could be looked into to non‑suit the party or to issue direction for return of plaint. The learned District Judge should have confined himself to the application for leave to appear and defend the suit. Apart therefrom, the, impression which the learned District Judge gained does not appear to be tenable as narration of events given in reply to the application was only by way of history of the case and was not in itself basis of the suit and, therefore, to assume that the suit was based on a claim resulting from settlement was neither here nor there. The order for return of plaint cannot, therefore, be approved.

6. The next question for consideration would be as to whether leave to appear and defend the suit should be given or not. Learned counsel submitted that the matter should be left for decision of the District Judge as if the order is passed by this Court, either of the parties will be deprived of one opportunity of appeal. The argument is without substance. Reason being, the order granting permission for leave to appear and defend the suit or refusing the permission are not appealable. Be that as it may, under Order 41, Rule 33, C.P.C. Appellate Court can pass an order which as a matter of fact should have been passed by the Court below. If the Court below has omitted to pass appropriate order or failed to exercise his jurisdiction, in accordance with law, the Appellate Court is not denuded of its power to pass an order which should have been passed by the Court below. Reference can be made to WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. PLD 1990 SC 359.

7. In the given circumstances, as observed hereinabove the learned District Judge should have decided the question of leave to appear and defend the suit but while dealing with the application, he misdirected himself. On looking into contents of the application, I am of the view that triable issues have been raised, plausible defence has been made out, therefore, it is not a case in which permission for leave to appear and defend the suit can be refused outrightly. Condition can be imposed only if there is apprehension of causing delay on the part of the defendant. This does not appear to be forthcoming from the record.

8. Be that as it may, I would like to protect interest of the appellant by directing to furnish simple security of the principal amount, to the satisfaction of the learned District .Judge within two months, as a condition for granting permission for leave to appear and defend the suit. The application for leave to appear and defend the suit shall be deemed to have been disposed of in the above terms. If security is not furnished, leave to appear and defend the suit would be deemed to have been recalled. It is made clear that a person furnishing security will not dispose of his property pending decision of the suit.

9. Main suit will also be decided by the District Judge within three months.

10. In the above term's, this appeal is accepted and' case is remanded. Parties will appear before the District Judge on 28‑6‑1999. H.B.T:/M‑252/L Case remanded.