1998 PLP 1133 (CLC)

This is an appeal against the judgment and decree, dated 2‑1‑1997 passed by the learned Additional District Judge, Bahawalpur in a summary suit for the recovery of money filed under the provisions of Order XXXVII, Rule 2, C.P.C.

2. The brief facts giving rise to this appeal are that Messrs APCO (respondent‑plaintiff) filed a suit under Order XXXVII, Rule 2, C.P.C. for the recovery of Rs.25,000 against Malik War Iqbal (appellant‑defendant) on the basis of Promissory Note, dated 20‑5‑1990. Mr. Naveed Khalil Chaudhary, Advocate, put in his appearance on behalf of the defendant on 31‑7‑1993, but the application for grant of leave to appear and defend the suit was filed on 12‑9‑1993 i.e., after the expiry of the period of limitation. Even the said application was not accompanied by an affidavit as required under Rule 3 of the said Order. No application for the extension of period of limitation on any ground was moved. However, on 21‑11‑1996, another application was moved by the defendant for rejection of plaint under Order VII, Rule 11, C.P.C. on the ground that the plaintiff firm stood dissolved since 2‑7‑1989. This application was dismissed in limine and finally the suit was decreed as prayed for as the application seeking leave to appear and defend the suit was also dismissed. Hence, this appeal.

3. The learned counsel for the appellant mainly submitted that the suit could not have been decreed without recording of evidence of the plaintiff even after the dismissal of the application of the defendant for leave to appear and to defend the suit. In this regard he relied upon the cases of Muhammad Aslam v. Falak Sher (1990 CLC 1119) and Muhammad Yousaf v. Allah Yar (PLD 1987 Lahore 101). '

4. The learned counsel appearing for the respondent‑plaintiff, on the other hand, submitted that under Rule 2(2) of Order 37, C.P.C. there was no obligation on the Trial Court to record the ex parte evidence as the defendant had failed to obtain leave for his appearance and defending the suit. She elaborated that in such a case the plaint was deemed to be admitted and the plaintiff was entitled to a decree. She referred to the case of Naeem Iqbal v. Mst. Zarina (1996 SCMR 1530), wherein it was held by the apex Court as under:‑‑‑ "As per sub‑rule (2) of Rule 2 of Order XXXVII, C.P.C. if a defendant after being served with summons of a summary suit, does not obtain leave to appear and defend the suit, the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. " She further referred to the case of M Ashraf Parwaz v. Prof. Asghar Ali Naaz (1995 SCMR 45), wherein it was held as follows:‑‑‑ "Subsequently, he filed a belated application in this regard which was dismissed on the ground of limitation. The Trial Court then decreed the suit of the respondent. The petitioner filed an appeal before the High Court, but it was dismissed. He now seeks leave to appeal from this Court. " It was further observed:‑‑‑ "There is no satisfactory explanation why the petitioner did not seek leave to appear and defend the suit within the prescribed period. The medical certificate which he filed before the learned District Judge did not cover the relevant period. The District Judge was, therefore, right in not entertaining his application in this regard on the ground of limitation."

5. No doubt that in the cases cited by the learned counsel for the appellant, it was held that in a suit under Order XXXVII, Rule 2, C.P.C., the Trial Court after refusing leave to defend should decide the suit after recording the plaintiff's evidence, but the Supreme Court clearly held that where a defendant in a summary suit failed to obtain leave to appear and to defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that any decision of the Supreme Court on a question of law shall be binding on all other Courts in Pakistan. The same is reproduced below:‑‑‑

189. Decision of Supreme Court binding on other Courts.‑‑‑Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. "

6. It is most appropriate to also reproduce Rule 2(2) for better appreciation of the proposition under consideration. The said sub‑rule is as under:‑‑‑ "(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree. "

7. A bare reading of sub‑rule (2) makes it clear that where the defendant has not been allowed to appear and to defend the suit, either he did not apply for the same or his application was rejected, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. In fact where the leave to defend the suit is not granted, the Court simultaneously considers the claim of the plaintiff to be genuine and valid. Order XXXVII provides the special procedure to be followed in suits instituted upon bill of exchange, Hundies or promissory notes. It prescribed a summary procedure and in case the defendant defaults in obtaining the prescribed leave for his appearance and for defending the suit, it has to be decreed without recording any evidence, otherwise, the object of speedy and summary trial would be defeated. The parties are required to adduce their respective evidence only when the defendant upon an application, supported by an affidavit showing defence on merits, gets leave to appear and to defend the suit under Rule

3. I would respectfully say that the rule laid down in the cases of Muhammad Aslam and Muhammad Yousaf, mentioned (supra), cannot be followed in the presence of clear dictum of the Supreme Court, which is binding on all the Courts in Pakistan including the High Courts.

8. The learned counsel for the respondent‑plaintiff also submitted that the application seeking leave to defend the suit was not maintainable as it was not supported by an affidavit. In this regard learned counsel referred the case of Abdul Rehman v. Talib Hussain (1989 CLC 1689), wherein it was held:‑‑‑ "In the present case, as already stated, the application submitted by the appellant seeking leave to defend the suit was not supported by an affidavit. It is, therefore, not in accordance with the mandatory provisions of Rule 3 of the Order XXXVII, C.P.C. The learned District Judge in the circumstances was justified to decline leave to defend the suit."

9. She has also pointed out that the application for leave to defend, despite being barred by limitation, was not accompanied by any application for condonation of delay and, therefore, there was no question of condoning the delay in filing the said application. She placed reliance on the following observations made in the case of United Bank Ltd. v. Messrs S.G. Rauf & Company and 2 others (PLD 1990 Karachi 312):‑‑‑ "The application is, therefore, clearly time‑barred. The defendants' counsel has not made any application under section 5 of the Limitation Act, and therefore, the question of condoning delay does not arise."

10. There is much force in these contentions. The leave to defend can be given conditionally or unconditionally upon an application by the defendant only when the application is supported by an affidavit. In fact, it is the affidavit which should disclose the facts showing defence on merits. In the absence of an affidavit, it cannot be said that the defendant has any defence on merits entitling him to have leave to appear and to defend the suit. The period prescribed in making such an application is 10 days from the service of summons (Article 159 of the Limitation Act, 1908).

11. Through sub‑rule (3) of Rule 3, the provisions of section 5 of the Limitation Act, 1908, have been made applicable to the applications under sub rule (1) . In the instant case, the learned counsel for the defendant appeared for the first time in the Trial Court on 31‑7‑1993 and, therefore, the period of limitation began to run from that date. As during the month of August, the Courts were closed due to summer vacations, the defendant was bound to file the application seeking leave to defend the suit on the first day of reopening of the Courts i.e., on 1‑9‑1993, whereas the application was filed on 12‑9‑1993, and thus, it was barred by 11 days. As it was not accompanied by the application under section 5 of the Limitation Act, the Trial Court rightly rejected the same. In case of a belated application where condonation of delay was also sought, the delay of each day after the expiry of prescribed period of limitation has to be properly explained. This view finds support from the following cases:‑‑‑ (a) Cotton Export Corporation of Pakistan (Pvt.) Limited v. Messrs Nagina Cotton Industries Ginning Pressing & Oil Mills and 6 others (1993 CLC 2217) and (b) Messrs Pak‑Libya Holding Co. (Pvt.) Limited v. Sualeheen S. Piracha (1991 CLC 1146).

12. In view of the above discussion, this appeal is dismissed having no merits, leaving the parties to bear their own costs. A.A./Z‑45/L Appeal dismissed