2000 PLP 995 (CLC)

This is a revision petition which impugns an order dated 17‑3‑1999 passed by the Additional District Judge, Mailsi. where by he had refused to grant leave to tke petitioner to defend the suit. It is said that the parties were relatives. That the respondent/plaintiff was a Clerk of one Mr. Muhammad Khaliq, Advocate, Mailsi, to whom the petitioner had given some blank papers with signatures for filing a civil suit but he misused those signed papers and scribed a promissory note and filed a suit for recovery of Rs.5,00,000 against the petitioner. That no summons or notices were served to the petitioner for 19‑12‑1998 for which date the case had been fixed by the Trial Court. That even otherwise, the petitioner was to be married on 18‑12‑1998 and he was busy in the ceremony. That Nazar Hussain scribe was a brother of the plaintiff/respondent who had scribed the promissory note without entering it into his register. That a fake application for leave to defend on behalf of the petitioner was presented before the trial Court, on 5‑1‑1999 by Muhammad Khalid Sheikh, Advocate, who was a junior of one Mian Muhammad Afzal, Advocate. Whereas, Mian Muhammad Afzal, Advocate, was a counsel for the plaintiff in that case and Mr. Muhammad Zafar was their Clerk. That the said Muhammad Khalid Sheikh did not even append an affidavit with the application neither he did appear on behalf of the petitioner in the Court on account of a design and facilitated the proceedings to proceed ex parte. That even his signatures on the pro. note were of Qaisar 4,bbas who was son of the plaintiff and Abdul Hameed who was the brother‑in‑law of the scribe, the brother of the plaintiff. That when the petitioner came to know of the conspiracy, he applied for cancellation of the ex pane proceedings and for leave to defend the case.

3. That on 17‑3‑1999, the learned trial Court hastely decided the application of the plaintiff without applying its judicial mind. That application for cancellation of ex parte proceedings was decided in favour of the petitioner but the application for leave to defend was rejected, thus, giving him no relief.

4. Mian Abbas Ahmad, Advocate appearing on behalf of the respondent in this case, has no objection if leave to defend this suit is allowed to the petitioner provided he furnishes a bank guarantee.

5. Order 37, Rule 3 of the Civil Procedure Code reads as follows:‑‑ 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 shoulder 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 applications under sub‑rule (1).

6. In this connection, reference may also be made to the following cases: ‑‑‑ (i) Muhammad Nasir v. Muhammad Alam 1992 CLC 1705. (ii) Abdul Karim Jaffarani v. United Bank Ltd. and two others 1984 SCMR 568. (iii) AIR 1958 SC 321

7. After hearing the learned counsel from both sides and the proposal made by the learned counsel for the respondent, the impugned order disallowing the leave to defend the suit, is set aside. The case is remanded to the learned trial Court who shall allow leave to the petitioner for defending the suit provided he furnishes a reliable security against a sum of A Rs.5,00,

000. The parties are directed to appear before the learned Court on 7‑1‑2000 for trial of this case in accordance with the provisions of Order 37 of the C.P.C. Q.M.H./M.A.K./M‑31/L Order accordingly.